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2023 DIGILAW 616 (KAR)

R Divya v. Raghu

2023-04-19

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. This matter is listed for admission today. Heard the learned counsel for the appellants. 2. This appeal is filed challenging the judgment and decree dtd. 17/11/2022, passed in R.A.No.18/2021, on the file of the II Additional Senior Civil Judge and JMFC, Hassan. 3. The factual matrix of the case of the plaintiffs before the Trial Court is that the suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 and 2 and it is their claim that the plaintiffs are entitled for partition. It is also their further case that the sale deed dtd. 5/3/2003 executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on their shares in the suit schedule properties and hence they are entitled for the relief of partition. The defendant Nos.1 and 2 are father and brother of the plaintiffs, respectively and defendant No.3 is the purchaser of item No.1 of the suit schedule property. The defendant No.3 took the defence that he is a bonafide purchaser of item No.1 of the property and also took the contention that the suit is barred by law of limitation. The plaintiffs in order to prove their case examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to 7. On the other hand, the defendants examined defendant No.2 as D.W.1 and defendant No.3 got examined himself as D.W.2 and got marked the documents at Exs.D.1 to 4. The Trial Court having considered the material available on record comes to the conclusion that the suit schedule properties are the ancestral properties and answered issue Nos.1 and 2 partly in the affirmative and issue No.3 in the negative in coming to the conclusion that the sale deed executed by defendant Nos.1 and 2 on 5/3/2003 in favour of defendant No.3 is a valid sale deed and the same is not binding on the plaintiffs is not accepted. The Trial Court answered issue No.4 in the affirmative and held that the plaintiffs are entitled for 1/6th share each in the suit schedule properties i.e., item Nos.2 and 3 properties and they are entitled for separate possession and declined to grant any relief in respect of item Nos.1, 4 and 5 properties. 4. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.18/2021 by the plaintiffs. 4. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.18/2021 by the plaintiffs. The main contention urged by the appellants before the First Appellate Court is that the very approach of the Trial Court is erroneous and further contend that item No.1 has been granted by the Government in favour of the father of defendant No.1 under kuluvadike and defendant No.3 has got exercised the sale deed in his favour fraudulently without the consent or knowledge of the plaintiffs, in which these appellants are having equal share. The very sale made by defendant Nos.1 and 2 is against law and they are entitled for share in each of the properties. The First Appellate Court having considered the grounds urged in the appeal formulated the points whether the Trial Court was justified in holding that sale deed dated 05. 03.2003 executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on the share of the plaintiffs, whether the appellants have proved that item No.1 has been alienated by defendant Nos.1 and 2 for family legal necessity in favour of defendant No.3, whether the Trial Court was justified in dismissing the suit with respect to item Nos.1, 4 and 5 and whether the judgment and decree of the Trial Court requires interference. The First Appellate Court on re-appreciation of the material available on record comes to the conclusion that the Trial Court was justified in holding that the sale deed dtd. 5/3/2003 executed by defendant No.1 and 2 in favour of defendant No.3 is not binding on the share of the plaintiffs and answered point Nos.1 to 3 in the affirmative and point No.4 in the negative and dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the second appeal is filed before this Court. 5. The main contention of the learned counsel for the appellants in this appeal is that both the Courts committed an error in not appreciating oral and documentary evidence available on record. Hence, the second appeal is filed before this Court. 5. The main contention of the learned counsel for the appellants in this appeal is that both the Courts committed an error in not appreciating oral and documentary evidence available on record. The Trial Court and the First Appellate Court have clearly erred in holding that the plaintiffs were required to plead that the sale in favour of defendant No.3 was not for family necessity and it is settled law that it was the duty of the purchaser of the joint family to plead and establish that the sale in his favour was for family necessity. The defendant No.3 had neither pleaded in his written statement that the sale in his favour was for family necessity and nor led any evidence. In the absence of any pleading in this regard, both the Courts have committed an error in coming to the conclusion that the plaintiffs are not entitled for share in respect of item No.1 of the suit schedule property which was sold by defendant Nos.1 and 2. 6. The learned counsel would contend that the issue of family necessity is raised for the first time in the cross of D.W.1, who is sailing with the purchaser. The reasons put forth by D.W.1 as regards family necessity is contrary to the averments in the sale deed. D.W.1 has in fact denied the reason shown in the sale deed as the reason for alienating the property. The learned counsel would contend that the Trial Court erred in coming to the conclusion that the suit is barred by limitation. The period of limitation as per Article 110 of the schedule to Limitation Act, 1963 is 12 years. Thus, the reasoning of the Trial Court on the question of limitation is erroneous and is liable to be set aside. Hence, prayed this Court to frame the substantial question of law that in the light of the fact that there was no plea of alienation due to family necessity being raised by defendant No.3 purchaser, whether the Trial Court and the Lower Appellate Court were justified in considering the same and appreciating the evidence in contravention of Sec. 5 of the Indian Evidence Act, 1872. The learned counsel submits that this Court has to frame the substantial question of law invoking Article 110 of the Limitation Act. The learned counsel submits that this Court has to frame the substantial question of law invoking Article 110 of the Limitation Act. The learned counsel submits that the defendants had admitted that all the suit schedule properties were ancestral properties both in their written statement and evidence. When such being the case, the Trial Court and the First Appellate Court were not justified in holding that the plaintiffs were required to produce all the documents to establish an admitted fact in contravention of Sec. 58 of the Indian Evidence Act, 1963. 7. Having heard the learned counsel for the appellants and also on perusal of the material available on record, it is the claim of the plaintiffs that the suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 and 2. The very sale deed executed by defendant Nos.1 and 2 in favour of defendant No.3 is not binding on their share and additional issue was framed with regard to defence taken by defendant No.3 that he is a bonafide purchaser and the suit is barred by limitation. The Trial Court having considered the material on record considered issue Nos.1, 3 and additional issue No.1 with regard to whether the properties are the ancestral properties and whether the sale made by them is binding on the plaintiffs and whether defendant No.3 is a bonafide purchaser and answered issue No.1 and additional issue No.1 in the affirmative and issue No.3 in the negative. The Trial Court extracted the recitals of the document of sale deed dtd. 5/3/2003, which is produced and marked as Ex.P.5 and Ex.D.1, wherein recital was made that the property was sold for the purpose of performing the marriage of granddaughter and also in order to construct a new house. The Trial Court also taken note of the answers elicited from the mouth of P.W.1, wherein she has admitted with regard to the construction of the house. The Trial Court also taken note of the contention of the plaintiffs that the sale deed is not binding on them and taken note that the same is not executed for legal necessity. The documentary evidence discloses that the sale was made for the purpose of performing the marriage of granddaughter of the seller and to construct the house. The Trial Court also taken note of the contention of the plaintiffs that the sale deed is not binding on them and taken note that the same is not executed for legal necessity. The documentary evidence discloses that the sale was made for the purpose of performing the marriage of granddaughter of the seller and to construct the house. Considering the cross-examination of P.W.1 and D.W.1 it is clear that defendant No.1 was acting as kartha of the plaintiffs and defendant Nos.1 and 2 family. D.W.1 during his crossexamination admitted that they were residing in Doddakondagula village and later they have constructed a new house near Gyaralli gate and residing at the said place. 8. It is important to note that the sale was made in 2003 and the suit is filed in 2018. It is emerged in the evidence that the plaintiffs came to know about the sale in 2007 and kept quiet till the filing of the suit in 2018. The Trial Court in paragraph No.25 discussed with regard to the oral and documentary evidence available on record that sale deed was executed on 5/3/2003 and also taken note of defendant No.1 was the kartha of the family and also taken note of the sale deed was executed in order to meet the family necessity i.e., performing marriage of granddaughter and construction of the house. The Trial Court also taken note of the fact that defendant Nos.1 and 2 have constructed a new house after selling the item No.1 of the suit schedule property in favour of defendant No.3. It has also taken note of the fact that under Sec. 6 of the Hindu Succession Act in view of the amendment, the plaintiffs have got equal share and also taken note of the evidence of defendant No.3, who claims that he is a bonafide purchaser. The Trial Court also extracted in paragraph No.31 the admission given by P.W.1 in crossexamination that even after the marriage also she used to visit the house of the parents and also admitted that after construction of the house no one is residing in village of Doddakondagula. The Trial Court also extracted in paragraph No.31 the admission given by P.W.1 in crossexamination that even after the marriage also she used to visit the house of the parents and also admitted that after construction of the house no one is residing in village of Doddakondagula. The Trial Court taken note of the admissions given by P.W.1 that the plaintiffs used to visit the house of defendant Nos.1 and 2 even after the marriage and she is also aware of the fact that the house was constructed after selling the property and not questioned the same and kept quiet and also taken note of the admission given by P.W.1 that the sale deed was obtained on 27/6/2014 and suit is filed in 2018 questioning the sale made by defendant Nos.1 and 2 and hence comes to the conclusion that plaintiffs are entitled for 1/6th share each in item Nos.2 and 3 properties since the said properties are ancestral properties. Insofar as item Nos.4 and 5 is concerned, the Trial Court comes to the conclusion that the plaintiffs have failed to prove that they are the ancestral properties and hence not granted any relief in respect of item Nos.4 and 5. 9. The First Appellate Court on re-appreciation of both oral and documentary evidence available on record, taken note of the admission given by P.W.1 in paragraph No.18 and extracted the same and also considered the recitals of document of Ex.D.1. The First Appellate Court also taken note of the admission given by P.W.1 that since 2003, defendant No.3 has been in possession of suit item No.1 by raising crops along with his father and also taken note of the admission that since the date of purchase, the katha of the said item No.1 continued in the name of defendant No.3 and also the admission in terms of the recitals of Ex.D.1 to the effect that suit item No.1 has been sold for marriage of granddaughter of defendant No.1 and for construction of new house. P.W.1 admitted that house was constructed and parents are living in the said house. P.W.1 admitted that house was constructed and parents are living in the said house. Taking note of all these materials on record, the First Appellate Court comes to the conclusion that the Trial Court has not committed any error in coming to the conclusion that the sale was made in 2003 and the plaintiffs were having knowledge of the sale made in 2003 and consequent upon the sale of item No.1, house was constructed by defendant Nos.1 and 2 and parents were residing in the house. The plaintiffs were having knowledge about the sale and there was a delay in filing the suit and hence coming to the conclusion that the suit is barred by limitation is not erroneous and the very contention of learned counsel for the appellants that Article 110 of the Limitation Act applies cannot be accepted when the relief is sought for questioning the sale deed made by defendant Nos.1 and 2 that the sale is not binding. Having considered oral and documentary evidence available on record, the First Appellate Court rightly re-appreciated the material on record and both the Courts have given anxious consideration to oral and documentary evidence available on record and hence I do not find any error committed by both the Courts. The Second Appellate Court can exercise the jurisdiction only if any perversity is found in considering the evidence on record and if material evidence is ignored and given the finding without considering the material on record. Hence, I do not find any reasons to admit the appeal and frame the substantial question of law invoking Sec. 100 of CPC. 10. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.