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2016 DIGILAW 746 (KAR)

TAMIL SELVI v. GIDDAREDDY

2016-10-06

B.MANOHAR

body2016
JUDGMENT : B. MANOHAR, J. 1. Appellant is the fifth defendant in O.S.No.22/2006. Challenging the judgment and decree dated 4th October, 2010 made in R.A.No.39/2012 passed by the Fast Track Court at KGF allowing the appeal while setting aside the judgment and decree dated 21st February, 2012 made in O.S.No.22/2006 passed by the Additional Senior Civil Judge at KGF, she has filed this appeal. 2. For the purpose of better understanding of the case, the parties are referred to as arrayed before the Trial Court. 3. Respondents 1 to 4 herein are the plaintiffs. They filed a suit seeking for partition and separate possession of their respective shares in respect of suit schedule properties and also sought for declaration declaring that the partition deed dated 21-06-2002 as fraudulent, illegal, null and void and not binding on them and also the sale deeds dated 29-10-2004 and 10-01-2008 are not binding on them and null and void ab initio and for costs and other reliefs. 4. In the plaint, it was contended that the plaintiffs 1 to 4 and 2nd defendant are the daughters and defendants 3 and 4 are the sons of first defendant, who died during the pendency of the suit. The plaintiffs and defendants are in unauthorized occupation of the land bearing Sy.No.77 situated at Hunasanahalli village, Bangarpete Taluk. They had spent huge money for its development. The first defendant as father of plaintiffs and defendants 2 to 4 filed an application for the grant of said land, since the entire family is in possession of the said property. The State Government by its order 25-08-1997 granted 3 acres 30 guntas of land in the said survey number in the name of first defendant for the benefit of joint family subject to certain conditions that the granted lands shall not be alienated for a period of 15 years, since the grantee belonged to Bhovi community. The said survey number was renumbered as Sy.No. 150. The plaintiffs are the married daughters of the first defendant and they sought for partition of the joint family properties. In view of that they filed a suit initially seeking for partition of joint family properties. The said survey number was renumbered as Sy.No. 150. The plaintiffs are the married daughters of the first defendant and they sought for partition of the joint family properties. In view of that they filed a suit initially seeking for partition of joint family properties. After filing the suit, they came to know that, the second defendant i.e. Venkatamma, taking advantage of the illiteracy of the first defendant in order to defraud other brothers and sisters, fraudulently got registered the partition deed dated 21-06-2002 in respect of 1 acre 30 guntas of land in Sy.No.150 out of 3 acres 30 guntas of land. Subsequently, the said Venkatamma sold the said property in favour of the 5th defendant as per the registered sale deed dated 29-10-2004. Further, the fourth defendant i.e. Munirathnappa during the pendency of the suit, sold 37 guntas of land in the very same survey number in favour of defendants 6 to 9 under the registered sale deed dated 10-01-2008. The alienation made by the second defendant as well as the fourth defendant is in utter violation of the conditions of the grant, particularly violated the non-alienation clause imposed while granting the land. In view of that, the plaintiffs got amended the plaint and sought for declaratory relief declaring that the partition deed dated 21-6-2002 and the sale deeds dated 29-10-2004 and 10-01-2008 are not binding on them. 5. In response to the notice issued by the trial Court, except third defendant, all other defendants entered appearance. However, defendant Nos.1 and 5 filed written statement. Defendant No.1 in his written statement admitted that the plaintiffs and defendants 2 to 4 are the children of the first defendant and the suit schedule properties were granted to the first defendant by the State Government. Hence, all the children have share in the joint family properties. However, he denied the contention of the plaintiffs that the first defendant in collusion with the second defendant had executed the partition deed dated 21-06-2002. 6. The 5th defendant in his written statement had denied the entire plaint averments and also contended that as per the registered partition deed dated 21-06-2002, the second defendant has become the absolute owner of in respect of 1 acre 30 guntas of land in Sy.No.150, situated at Hunasanahalli village. 6. The 5th defendant in his written statement had denied the entire plaint averments and also contended that as per the registered partition deed dated 21-06-2002, the second defendant has become the absolute owner of in respect of 1 acre 30 guntas of land in Sy.No.150, situated at Hunasanahalli village. She is the bona fide purchaser of the said property for a valuable consideration as per the registered sale deed dated 29-10-2004. Since then, she has been in possession and cultivating the said land and the revenue entries have been mutated in her name. The suit schedule property measuring 1 acre 30 guntas of land in Sy.No.150 is not the joint family property as claimed by the plaintiffs. There was already a partition on 21-06-2002 and the partial partition is permissible under the Hindu Law. The plaintiffs are the married daughters of the first defendant. They have no right whatsoever in respect of the suit schedule property and sought for dismissal of the suit. 7. On the basis of pleadings of the parties, the trial Court framed the following issues and additional issues: (I) Whether the Plaintiffs prove that the properties are the joint family properties and they are entitled to partition in the said properties? (II) Whether the Plaintiffs prove that they are in possession and enjoyment of the schedule properties as on the date of the suit? (III) Whether the defendant No.5 proves that suit item No.1 was purchased after the partition taken place between plaintiffs and defendants? (IV) Whether the Plaintiffs prove the interference by the defendants over the suit schedule properties? (V) Whether the Plaintiffs are entitled to the reliefs as sought? (VI) What order or decree? Additional Issues: (I) Whether plaintiffs prove that the partition dated 21-06-2002 is null and void not binds on their interest? (II) Whether Plaintiffs prove that sale deed dated 29-10-2004 and 10-01-2008 is null and void and not binds on their interest? 8. The plaintiffs, in order to prove their case, got examined the 4th plaintiff as P.W. 1 and got marked the documents as Ex.Pl to Ex.P16. They examined one other witness as P.W.2. The 5th defendant got examined as D.W.1 and got marked the documents as Ex.D1 to Ex.D5. 9. 8. The plaintiffs, in order to prove their case, got examined the 4th plaintiff as P.W. 1 and got marked the documents as Ex.Pl to Ex.P16. They examined one other witness as P.W.2. The 5th defendant got examined as D.W.1 and got marked the documents as Ex.D1 to Ex.D5. 9. The trial Court after appreciating the oral and documentary evidence let in by the parties held issue No.3 in the affirmative and all other issues and additional issues in the negative. Consequently as per the judgment and decree dated 21-02-2012 dismissed the suit filed by the plaintiffs holding that the plaintiffs have utterly failed to prove that the suit schedule properties are still joint family properties and they are entitled to partition and they are in joint possession and enjoyment of the suit schedule properties as on the date of filing of the suit. Further, the plaintiffs are not entitled for any declaratory relief as sought for by them. 10. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff Nos.3 and 4 filed R.A.No.39/2002 before the Fast Track Court at KGF contending that the judgment and decree passed by the trial Court is contrary to law. The suit schedule properties are the ancestral properties of the plaintiffs and defendants. All the children of the deceased first defendant are entitled for their share. The partial partition dated 21-06-2002 between the first defendant and the second defendant is on the basis of the fraud played by the second defendant. The alienation made by the second defendant in favour of the fifth defendant is also in violation of conditions of the grant. In addition to that, during the pendency of the suit, the 4th defendant had also alienated 37 guntas of land in favour of defendants 6 to 9 without the knowledge and information of the plaintiffs. Hence, the judgment and decree passed by the trial Court is contrary to law and sought for setting aside the same. 11. The Lower Appellate Court after considering the arguments addressed by the parties framed the following points for its consideration: (I) Whether the appellants/plaintiff Nos.3 and 4 prove that they are the joint family members and have got legitimate share in the suit properties? (II) Whether the appellants/plaintiff Nos.3 and 4 prove that the impugned judgment is bad and requires interference in this appeal? 12. (II) Whether the appellants/plaintiff Nos.3 and 4 prove that the impugned judgment is bad and requires interference in this appeal? 12. The Lower Appellate Court on re-appreciating the oral and documentary evidence held that the plaintiffs 3 and 4 have proved that they are the joint family members; the suit schedule properties are the joint family properties; they have got legitimate share in the suit schedule properties and the judgment and decree passed by the trial Court is contrary to law and held point Nos.1 and 2 in favour of the plaintiffs 3 and 4. Consequently, allowed the appeal while setting aside the judgment and decree passed by the trial Court and declared that the plaintiffs and defendants 2 to 4 are entitled for 1/7th share each in the suit schedule properties and the partition deed dated 21-06-2002, sale deeds dated 29-10-2004 and 10-01-2008 are not binding on the plaintiffs. Being aggrieved by the judgment and decree passed by the Lower Appellate Court dated 04-10-2012, the 5th defendant in the suit filed this appeal. 13. Sri. T. P. Srinivasa, learned counsel appearing for the appellant contended that the judgment and decree passed by the Lower Appellate Court setting aside the judgment and decree of the trial Court is contrary to law. The appellant is the bona fide purchaser of 1 acre 30 guntas of land in Sy.No.150 as per the registered sale deed dated 29-10-2004. Since then she has been in possession and enjoyment of the said land. The land in dispute was granted in favour of the first defendant Giddareddy, and the plaintiffs being the married daughters of Giddareddy have no right whatsoever and they cannot seek for partition of the suit schedule properties. Further, the first defendant as per the registered partition deed dated 21-06-2002 had allotted 1 acre 30 guntas of land in favour of the second defendant. Hence the second defendant has become the absolute owner and she had sold the said property to the appellant. In view of prior partial partition dated 21-6-2002, the plaintiffs cannot seek for partition. The suit filed by the plaintiffs seeking for partition itself is not maintainable. Hence the second defendant has become the absolute owner and she had sold the said property to the appellant. In view of prior partial partition dated 21-6-2002, the plaintiffs cannot seek for partition. The suit filed by the plaintiffs seeking for partition itself is not maintainable. In support of her contention, He also relied upon the judgment reported in (2016) 2 SCC 36 in the case of Prakash and others v. Phulavati and others and sought for setting aside the judgment and decree passed by the Lower Appellate Court by allowing this appeal. 14. On the other hand, Sri. Prashanth, learned counsel appearing for respondents 1 to 3 argued in support of the judgment and decree passed by the Lower Appellate Court and contended that the plaintiffs and defendants 2 to 4 are the children of Giddareddy. The land bearing Sy.No. 150 measuring 3 acres 30 guntas was granted by the State Government to the joint family of Giddareddy with a condition that the said land shall not be alienated for a period of 15 years. The second defendant taking advantage of illiteracy of the first defendant got registered the partition deed dated 21-06-2002 in respect of 1 acre 30 guntas of land in the said survey number and the very same property was sold in favour of the appellant herein as per the registered sale deed dated 29-10-2004. As on the date of alienation, the 15 years of non-alienation period has not been expired and no permission has been obtained from the State Government to alienate the said land as provided under the provisions of the Karnataka SC/ST (KPTCL Act. Further during the pendency of the suit, the 4th defendant alienated 37 guntas of land in favour of defendants 6 to 9 which is also in violation of conditions of the grant. However, the purchaser will not get any title over the said properties. The first defendant Giddareddy died intestate. Hence, all the children are entitled for 1/7th share. The Lower Appellate Court after considering the entire evidence on record set aside the judgment and decree passed by the trial Court and hence, sought for dismissal of the appeal. 15. I have carefully considered the arguments addressed by the learned counsel for the appellant and respondents 1 to 3 and perused the judgment and decree, oral and documentary evidence adduced by the parties and other relevant records. 16. 15. I have carefully considered the arguments addressed by the learned counsel for the appellant and respondents 1 to 3 and perused the judgment and decree, oral and documentary evidence adduced by the parties and other relevant records. 16. While admitting the appeal on 02-10-2015, this Court framed the following substantial question of law which reads as under: Whether the judgment and decree of the First Appellate Court is erroneous in misleading the material evidence on record and decreeing the suit of the plaintiffs by misconstruing the partial partition effected between the parties? 17. The records clearly disclose that the land bearing Sy.No.77 which was renumbered as 150 was originally granted in favour of Giddareddy by the State Government as per the grant order dated 25-08-1997 with a condition that the said land shall not be alienated for a period of 15 years since the grantee belongs to Bhovi community. The plaintiffs 1 to 4 and defendants 2 to 4 are the children of deceased Giddareddy. The case pleaded by the plaintiffs is that without their knowledge, the second defendant got the registered partition deed and got 1 acre 30 guntas of land in her favour and subsequently alienated the said land on 29-10-2004 in favour of the 5th defendant/appellant herein. Though the plaintiffs had sought for partition of the suit schedule properties, the first defendant had not effected the partition. In view of that, they filed a suit seeking for partition and separate possession of their share in the year 2006. Thereafter, they came to know about the registered partition dated 21-06-2002 and also sale deed dated 29-10-2004 executed by the second defendant in favour of the appellant herein. Further, during the pendency of the said suit the 4th defendant also alienated 37 guntas of land in favour of defendants 6 to 9. Hence, the plaintiffs amended the plaint seeking for declaratory relief also. 18. The 4th plaintiff examined herself as P.W. 1 and got marked the documents. In her evidence, she has clearly deposed that the plaintiffs and defendants 1 and 4 are in unauthorised occupation of the Government land. The State Government by its order dated 25-08-1997 granted 3 acres 30 guntas of land in the name of the first defendant on behalf of the joint family. The plaintiffs have spent huge money for the development of the said land. The State Government by its order dated 25-08-1997 granted 3 acres 30 guntas of land in the name of the first defendant on behalf of the joint family. The plaintiffs have spent huge money for the development of the said land. Hence, the members of joint family are in joint possession of the suit schedule properties. All the members of the joint family have got 1/7th share in the said properties. Though she was cross-examined by the 5th defendant, nothing contrary was elicited. P.W.2 in his evidence has clearly stated that the plaintiffs and defendants 2 to 4 are the children of deceased Giddareddy and they are entitled to their respective share in the said property. The 5th defendant was examined as D.W.1 and in her evidence, she had disputed the relationship of plaintiffs and defendants 3 and 4 and that the plaintiffs are the married daughters and they are not entitled for any share in the joint family properties. Further, Giddareddy had no sons, hence, 1 acre 30 guntas of land was allotted to the share of the second defendant as per registered partition deed dated 21-06-2002 and she is the bona fide purchaser. In the cross-examination she had admitted that the land in dispute is the granted land in favour Giddareddy. The trial Court, without taking into consideration the grant order dated 25-08-1997 and also condition imposed therein held that the plaintiffs have failed to prove that the suit schedule properties are not the joint family properties and that they are entitled for their share in the said properties and dismissed the suit. On an appeal filed by plaintiffs 3 and 4, the Lower Appellate Court after examining the matter and also re-appreciating the oral and documentary evidence, set aside the judgment and decree passed by the trial Court and allowed the appeal filed by the plaintiffs 3 and 4, wherein it was declared that the plaintiffs and defendants 2 to 4 are the children of Giddareddy, the suit schedule properties are the granted lands. Giddareddy died intestate and hence, the plaintiffs and defendants 2 to 4 are entitled for 1/7th share each in the suit schedule properties and decreed the suit filed by the plaintiffs. I find no infirmity or irregularity in the judgment and decree passed by the Lower Appellate Court. 19. Giddareddy died intestate and hence, the plaintiffs and defendants 2 to 4 are entitled for 1/7th share each in the suit schedule properties and decreed the suit filed by the plaintiffs. I find no infirmity or irregularity in the judgment and decree passed by the Lower Appellate Court. 19. The documents produced by the parties clearly disclose that the plaintiffs and defendants 1 to 4 are in unauthorized occupation of the Government land. Since, they belonged to Bhovi community, the State Government by its order dated 25-08-1997 had granted 3 acres 30 guntas of land in favour of the joint family with a condition that the granted land shall not be alienated for a period of 15 years, though there is no prohibition for partition of the said property. In the instant case, the second defendant, as per the registered partition deed dated 21-06-2002 got 1 acre 30 guntas and alienated the said land in favour of the 5th defendant on 29-10-2004 which is contrary to grant order. It was brought to my notice that the proceedings has been initiated before the Competent Authority to take action for violating the conditions of grant order. Further, during the pendency of the said suit, 4th defendant has also alienated 37 guntas of land in the very same survey number in favour of defendants 6 to 9. As on the date of alienation, the first defendant died intestate. There was no partition of joint family properties. The 4th defendant has no right to alienate the properties in favour of defendants 6 to 9. The documents produced by the parties and evidence on record clearly disclose that the suit schedule properties belonged to the joint family properties of the plaintiffs and defendants 1 to 4. All the children of deceased Giddareddy are entitled for 1/7th share in the suit schedule properties. The Lower Appellate Court after considering the matter in detail held that the plaintiffs are entitled for 1/7th share. The judgment relied upon by the appellant is not applicable to the facts of the present case. I find no infirmity or irregularity in the judgment and decree passed by the Lower Appellate Court. The substantial question of law framed in this appeal is answered in favour of the respondents. Accordingly, the appeal is dismissed.