Gopabai vs Gundu

H.G. Ramesh, J.—This second appeal is filed by the plaintiffs challenging the judgment and decree passed by the Addl. Senior Civil Judge, Jamkhandi in R.A. No. 5/2010 reversing the finding of the trial Court and dismissing the suit filed by the plaintiffs in O.S. No. 43/2008.

Plaintiffs being the wife and children of one Babu Mane filed a suit for partition and separate possession. The property in Survey No. 33/1B measuring 1 acre 26 guntas situated at Todalbagi village of Jamkhandi Taluk was the subject matter of the suit. Plaintiffs No. 1 and 2 are the wife and son of defendant No. 1 i.e., Gundu Mane. During the pendency of the matter, plaintiff No. 1 died. The suit was filed stating that property is in joint possession and enjoyment of defendant No. 2 and as it is ancestral property, the sale made by defendant No. 1 in favour of defendant No. 2 is not binding on them and the sale was not for legal necessity. It is stated that defendant No. 1 in collusion with the village accountant, alienated the suit property for Rs. 1,04,000/- to defendant No. 2 as per sale deed dated 27.08.2007'' which is not binding on the plaintiffs. The matter was contested by both the defendants. According to defendant No. 1, while admitting the relationship, he denied the joint family status and stated that about 35 years ago the plaintiff has left his company and he started living at Jamakhandi in Mahadev temple of Todalbagi village and has taken shelter under one Swamiji and he had been totally neglected. It is stated that plaintiff pressurized to sell entire property and to settle at Jamkhandi. Since defendant No. 1 was not agreeable, they asked their share in the suit schedule property. However, during 1992 the property was divided by way of oral partition between defendant No. 1 and plaintiffs. Defendant No. 1 retained 1 acre 26 guntas and allocated 3 acres 14 guntas in Sy. No. 33 of Savalagi village to the plaintiffs. After oral partition, the plaintiffs have sold their share by putting pressure on defendant No. 1. As the property was standing in the name of defendant No. 1, he had executed the sale deed at the instance of plaintiffs and the plaintiffs have took the entire sale consideration and out of the sale proceeds, acquired the property at Jamakhandi. As such in the year 1992 itself the joint family status was disrupted and hence, plaintiffs have no interest over the suit schedule properties. It is stated that defendant No. 1 sold his share measuring 1 acres 26 guntas in favour of defendant No. 2 for his livelihood with the consent of the plaintiffs. It is further stated that from 1992 plaintiffs were not in possession of the suit schedule property and that there is no cause of action and the suit schedule property acquired by the plaintiffs out of the sale proceeds is not included in the suit.

According to the plaintiffs, the sale deed is binding on the them as the property which fell to the share of defendant No. 1 in the partition is sold to defendant No. 2. The trial Court based on the pleadings, framed as many as 9 issues for consideration and after enquiry, decreed the suit stating that legal representatives of deceased plaintiff No. 2 and plaintiff No. 3 are entitled for 1/3rd share in the suit schedule property and also defendant No. 2 is permanently restrained by way of permanent injunction from causing any obstruction to the peaceful and enjoyment of the plaintiffs. As against which, appeal was preferred by defendant No. 1 and 2 before the Addl. Civil Judge (Sr. Dn.), Jamkhandi with the same contention raised by them in their written statement. The property in Sy. No. 33/1B measuring 1 acre 26 guntas of Todalbagi village was the subject matter. The lower appellate Court set aside the judgment and decree of the trial Court and dismissed the suit. It is stated there is non-consideration of Exs. D-1 and D-2 in respect of joint family status of the parties to the suit and also the lower appellate Court has noticed that the trial Court has failed to consider the entire oral and documentary evidence on record.

In para 37 of the lower appellate Court judgment, it is noted that according to the evidence of., PW-1, he was the owner of 4 acres of land and 3 acres 14 guntas has fallen to the plaintiffs'' share, as admitted by the plaintiffs themselves. The evidence of DW 3 is taken into consideration wherein he has stated that defendant No. 1 sold only 1 acre of land and retained the remaining area. On the other hand, the plaintiffs contention is that defendant No. 1 has sold 1 acre 26 guntas in favour of defendant No. 2 without any legal necessity. What is being noted is that lower appellate Court without going into the pleadings of the plaintiffs, held that defendant sold the suit property for legal necessity, also noting that plaintiffs have not discharged their burden. Rather taking the evidence of DWs-1 and 3 into consideration that defendant No. 1 was staying in a temple and as he was in need of money for his maintenance and to repay the debts, he sold the property, the said evidence of defendants has been accepted and the stand of the plaintiffs that defendant No. 1 is addicted to bad vices is neither admitted nor proved and accordingly, held that the suit schedule property was sold for legal and family necessity.

The substantial question of law that arises for consideration is:

Whether the lower appellate Court is justified in dismissing the suit of the plaintiffs on the ground that the property situated at Savalagi was made available to the plaintiffs and that the property was sold for legal necessity by defendant No. 1 in favour of defendant No. 2?

It is seen, there was property available to the extent of 4 acres and odd to the family of defendant No. 1. One property is situated at Savalagi village to the extent of 3 acre 14 guntas, another is 1 acre 26 guntas at Todalbagi village. The lower appellate Court has taken note of the fact that property at Savalagi village was given to the share of the plaintiffs and the property at Todalbagi village was given to the share of defendant No. 1. The defendant No. 1, out of 1 acre 26 guntas, sold the land only to the extent of 1 acre in favour of defendant No. 2 and also having noted that defendant No. 1 was not taken care of by the plaintiffs and he is residing in a temple, to clear all debts and for his maintenance, he sold the property to the extent of 1 acre of Todalbagi village in favour of defendant No. 2. At an undisputed point of time, the property at Savalagi is claimed to be sold by the plaintiffs and also as stated by defendant No. 1, out of the property measuring 1.26 acres, 1.00 acre was sold to 2nd defendant. Out of the total property to an extent of 1 acre 26 guntas including 3 acres and odd, 1/3rd share is given to the defendant No. 1. Out of which, he has sold 1 acre in favour of the defendant No. 2, which need not be discharged. For the remaining extent, the plaintiffs would have a claim. Accordingly, in modification of the order of the lower appellate Court while answering the substantial question of law, the suit of the plaintiff is decreed in part. The property which has fallen to the share of defendant No. 1 is binding on the plaintiffs. For the remaining extent, the order is modified thereby granting injunction. The defendant No. 1 has retained 1 acre 26 guntas and remaining extent of 3 acres 14 guntas of Savalagi village is enjoyed by the plaintiffs. That aspect of the matter was not visualised by the trial Court but taking into consideration the fact of earlier family arrangement, the lower appellate Court reversed the judgment of the trial Court. However, even as per the sale deed executed by the defendant No. 1 in favour of the defendant No. 2, he sold the land only to the extent of 1 acre and retained 26 guntas with him. Therefore, plaintiffs have no right over the property to the extent of 1 acre 26 guntas, which is retained by the defendant No. 1 who has disposed of the property in favour of defendant No. 2 to the extent of 1 acre.

Appeal is dismissed.

However, liberty is given to the appellants to verify and seek for reconsideration of the issue as to the property which is not made available to the extent of 3 acres 14 guntas, in the property which is said to have fallen to the share of defendant No. 1, through family partition amongst his brothers and in partition, if the share is not given to the plaintiffs, then they can seek for reconsideration of the issue.