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2024 DIGILAW 127 (KAR)

Uttam v. Dattatreya

2024-02-12

E.S.INDIRESH

body2024
JUDGMENT 1. This appeal is filed by the defendant No.2 and 4 challenging the Judgment and Decree dated 11.07.2019 passed in R.A.No.53 of 2016 on the file of Senior Civil Judge and JMFC, Indi, Vijayapura District, confirming the Judgment and Decree dated 01.10.2016 in O.S.No.313 of 2009 on the file of Civil Judge and JMFC, Indi, holding that the plaintiffs No.1 to 4 are entitled for 1/5th share each in respect of suit lands. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that plaintiffs No.1 to 3 are the children of defendant No.1 and plaintiff No.4. It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of plaintiffs. It is further stated that, the contesting defendants No.2 and 3 who are the brother and sister of defendant No.1, got entered their names in the record of rights. It is also stated that the defendant No.4 also managed to get enter his name in the record of rights and feeling aggrieved by the same, the plaintiffs have filed suit in O.S. No.313 of 2009 seeking relief of partition and separate possession in respect of suit schedule properties. 4. After service of notice, the defendant Nos. 1 and 4 entered appearance and filed written statement. Defendant Nos. 2 and 3 have not appeared and placed ex-parte. It is the specific case of defendant No.1 that the defendant No.1 was suffering from tuberculosis and was on prolonged treatment and as such, the defendant No.1 sold the schedule property in favour of defendant Nos.2 and 4 and accordingly, they sought for dismissal of the suit. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiff No.1 was examined as PW1 and got marked 09 documents as Exs.P1 to P9. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 20 documents as Exs.D1 to D20. 7. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiff No.1 was examined as PW1 and got marked 09 documents as Exs.P1 to P9. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 20 documents as Exs.D1 to D20. 7. The Trial Court, after considering the material on record, by its Judgment and Decree dated 01.10.2016 decreed the suit of the plaintiffs holding that the plaintiff Nos.1 to 4 are entitled for 1/5th share each in the suit schedule properties and being aggrieved by the same, the defendants Nos.2 and 4 have preferred Regular Appeal in R.A.No.53 of 2016 on the file of First Appellate Court. The said appeal was resisted by the plaintiffs. The First Appellate Court, after re-appreciating the facts on record, by its Judgment and Decree dated 11.07.2019, dismissed the appeal and confirmed the Judgment and Decree passed by the Trial Court in O.S.No.313 of 2009. Being aggrieved by the same, the appellants/defendant No.2 and 4 have preferred this Regular Second Appeal under Section 100 of CPC. 8. This Court vide order dated 29.01.2024 formulated the following substantial question of law for its consideration: "(i) Whether the properties sold by defendant No.1 in favour of defendants No.2 and 4 is for family and legal necessities? (ii) Whether both the Courts below were justified in arriving at a finding that the lands in question are not sold for family and legal necessities?" 9. I have heard Sri. D.P. Ambekar, learned counsel appearing for the appellants and respondents are served but remained absent. 10. Sri D.P. Ambekar, learned counsel for the appellants contended that both the Courts below have not properly appreciated the evidence on record that the schedule properties were sold by defendant No.1 for his legal and family necessity and in this regard the medical documents have been produced before the Trial Court and therefore, he contended that the impugned Judgment and Decree passed by the Courts below requires to be interfered with. He further submitted that, the defendant No.1 being the Kharta of the family has every right to alienate the joint family properties for legal necessity of his medical treatment and accordingly, he sought for interference of this Court. 11. He further submitted that, the defendant No.1 being the Kharta of the family has every right to alienate the joint family properties for legal necessity of his medical treatment and accordingly, he sought for interference of this Court. 11. Having taken note of the submissions made by the learned counsel appearing for the appellants, I have carefully examined the original records. It is not in dispute with regard to the relationship between the parties and the genealogical tree is as follows: 12. It is not in dispute that the schedule properties are the joint family properties of plaintiffs and defendants and the core question to be answered in this appeal is whether the Sale Deed executed by defendant No.1 in favour of defendant No.2 and 4 in respect of the schedule properties is for legal necessity? 13. In this regard, on careful examination of the finding recorded by the Courts below would indicate that the defendant No.1 has sold the schedule properties as per registered Sale Deed dated 09.02.1996 (Ex.P14) and registered Sale Deed dated 23.02.1996 (Ex.P15) respectively and during the said period the defendant No.1 has repaid the loan availed by him from Primary Agricultural Produce Society at Shiradon Village, Indi Taluk on 01.12.1995. The said repayment of loan was made just before two months from the sale of the property in question. If at all the defendant No.1 is having financial crunch due to medical treatment, he would not have cleared the loan from the aforementioned Society. It is also the finding recorded by the courts below that the defendant No.1 was financially sound and there was no necessity for the family to sell the suit schedule properties and in view of the evidence adduced by plaintiff-P.W1 with the documents marked to establish the fact that the defendant No.1 has not sold the schedule properties for legal necessity. It is to be borne in mind that the defendant No.1 was not examined by the contesting defendants/appellants herein to elicit that the sale was made for family purpose. Both the courts below having taken note of the factual aspects on record, have rightly come to the conclusion that the plaintiffs are entitled for the relief in the suit. It is to be borne in mind that the defendant No.1 was not examined by the contesting defendants/appellants herein to elicit that the sale was made for family purpose. Both the courts below having taken note of the factual aspects on record, have rightly come to the conclusion that the plaintiffs are entitled for the relief in the suit. That apart, the First Appellate Court re-appreciated the evidence on record, particularly, paragraphs 24 to 27 of the impugned Judgment and Decree and both the Courts below concurrently held that the appellants herein have not made out a case for interference. 14. In the result, the appellants have failed to establish that there is illegality and perversity in the Judgment and Decree passed by the courts below and that apart, the substantial question of law framed above, favours the plaintiffs. Hence, there is no merit in the appeal accordingly, the Regular Second Appeal is dismissed.