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2020 DIGILAW 1026 (KAR)

Siddalingayya S/o Basavanneyya Narendrahiremath Urf Narendrasalimath Urf Hiremath v. Premavva W/o Siddayya Chikmath

2020-06-09

N.S.SANJAY GOWDA

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JUDGMENT : Smt. Premakka, her children Smt. Sumati, Jyoti Shiddayya filed a suit seeking for declaration that they were the absolute owners of the suit property and also for possession of the said suit property along with mesne profits. They also sought for a declaration that the decree obtained by defendant No.5 in O.S.No.24/1994 was not binding on them. 2. It was their case that Shiddayya (husband of plaintiff No.1 and father of plaintiff Nos.2 and 3) had purchased the said property under the sale deed dated 02.11.1970 and since there was marital discord, the plaintiffs were constrained to file a suit in O.S.No.42/1980 seeking for partition and separate possession of their share. In the said suit, there was a compromise and a share was stated to be granted to them and they thereafter initiated final decree proceedings in FDP No.18/1986, in which a final decree was drawn and this final decree was put into execution and the said property, allotted to them under a final decree, was also handed over to their possession. 3. It was their case that the defendants had no right over the suit property but nevertheless they had illegally occupied the suit property in 1998 and therefore they were constrained to file the suit for declaration and for possession. 4. On service of summons, the defendant No.1 to 7, due to their non-appearance, were placed ex-parte. Defendant No.5 alone filed a written statement which was adopted by defendants Nos.4 and 6. 5. The defendant No.5 contended in the written statement that the suit property was the property of his father and hence his mother Smt. Channavva, would not have sold the property to the husband and father of the plaintiffs and he had therefore filed a suit on 02.02.1990 in O.S.No.24/1990 seeking for a declaration that the sale deed dated 02.11.1970 executed by his mother be declared as null and void and that the said suit had been decreed on 1308.1992 and the sale deed dated 02.11.1970 was declared as null and void and was in fact ordered to be sent to the Sub-Registrar as provided under the Specific Relief Act to make necessary entries in the registers. He therefore contended that since the sale deed dated 02.11.1970 was declared as null and void, the plaintiffs claiming title from the purchaser under the sale deed dated 02.11.1970 would be of no consequence and the subsequent partition decree did not confer any title on the plaintiffs and the suit was therefore required to be dismissed. 6. The Trial Court on consideration of the evidence came to the conclusion that the decree obtained by defendant No.5 in O.S.No.24/1990 by which the sale deed dated 02.11.1970 was declared as null and void was of no consequence insofar as the plaintiffs were concerned since pursuant to the sale, plaintiffs had obtained a decree against the purchaser and the purchaser’s title had been divested. It held that the decree obtained by defendant No.5 only as against the purchaser would have no bearing and would not affect right of the plaintiffs. The Trial Court accordingly decreed the suit and declared that the plaintiffs were the owners of the suit property. Notwithstanding the declaration that the sale deed dated 02.11.1970 was declared to be null and void as against the purchaser. 7. The defendant Nos.5 and 6 carried the matter in appeal. 8. The Appellate Court on re-appreciation of evidence found no reason to disagree with the finding recorded by the Trial Court that the decree obtained by defendant No.5 against the purchaser who happened to be the husband and father of present plaintiffs, was of no consequence as against the plaintiffs. The Appellate Court took note of the fact that the plaintiffs could not be bound by a decree obtained against their husband especially after the plaintiffs had acquired title to the suit property under a decree of partition granted in the year 1984. The Appellate Court accordingly dismissed the appeal. 9. It is against this concurrent finding that this second appeal has been preferred. 10. It cannot be in dispute that father of defendant No.5 sold the suit property in favour of husband of plaintiff No.1 and father of plaintiffs No.2 to 4 under the registered sale deed dated 02.11.1970 and after a period of 20 years, the plaintiffs chose to file a suit in O.S.No.24/1990 seeking for a declaration that the sale deed executed by his mother was null and void only against the purchaser, who by then had already parted with the property purchased to him. It cannot be also in dispute that an uncontested decree obtained against the father and husband of the plaintiffs would not bind the plaintiffs. 11. It is to be borne in mind that the plaintiffs were not directly claiming title under the plaintiffs and they were claiming title on the basis of a decree of partition obtained by them. Merely, because the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 had purchased the property, that by itself would not lead to the inference that the plaintiffs were claiming under him. This is because, on a decree being granted in favour of the plaintiffs, the title in favour of the husband of the plaintiffs and father of plaintiffs stood divested and a title was conferred on them independently. 12. In my view, the argument of the learned counsel that the decree of declaration obtained by the plaintiffs against the husband and father of plaintiffs to the effect that the sale deed obtained by him was null and void cannot bind the plaintiffs under Section 35 of Specific Relief Act since the plaintiffs were essentially claiming independent over in the suit property on the basis of a decree of partition granted in their favour. 13. In my view, there is no question of law, much less, a substantial question of law arising for consideration in this appeal. Consequently, this appeal is dismissed.