Kasturevva and Others vs Ningappa

B. Veerappa, J.—This is an unsuccessful plaintiffs'' regular second appeal against the judgment and decree dated 16.12.2011 made in R.A. No. 96/2010 on the file of the Fast Track Court, Gadag, affirming the judgment and decree dated 18.9.2010 made in O.S. No. 2/2007 on the file of the Additional Senior Civil Judge (Sr.Dn.), Gadag, dismissing the suit for partition and separate possession.

The plaintiffs are wife and daughters of Parameshwarappa Magalad who is brother of defendant-1 Ningappa. It is the case of the plaintiffs that the suit schedule properties are ancestral joint family properties of plaintiffs and suit 1A land originally belongs to the father of the husband of plaintiff No. 1 i.e. Parameshwarappa, who died on 30.12.1981 leaving behind his wife Yallavva and 3 sons and 3 daughters. To that effect, the mutation M.E. No. 10458 duly certified on 20.5.1987 and subsequently there was a partition amongst them on 7.1.1999 in which southern portion measuring 1 acre 26 guntas was allotted to the share of the 1st plaintiffs husband and father of plaintiffs 2 and 3 and after his death, plaintiffs became owners of suit schedule properties. The defendant who is elder brother of the deceased Parameshwarappa managed to create a sham and bogus document styled as sale deed dated 29.12.99 said to have been executed by Parameshwarappa who was bedridden and was not of sound disposing state of mind as he was suffering from HIV infection about a year before his death and he was treated in Government Hospital at Gadag. For his medical treatment no money was spent by the plaintiffs or the defendant and there was no family necessity for the deceased Parameshwarappa to sell the suit 1A land in favour of defendant. Therefore, the alleged sale deed is not binding on the share of the plaintiffs and therefore, alternatively plaintiffs requested to allot 3/4th share in the suit land. Further, the plaintiffs requested that during the pendancy of the suit defendant dispossessed, for which they requested for possession and also contended that the defendant is trying to disturb the peaceful possession and enjoyment of the suit schedule 1B house. Therefore, the plaintiffs filed the suit.

Defendant filed his written statement and denied the entire averments and contended that the plaintiffs have no cause of action to file the present suit and specifically contended that after partition in the family on 7.1.1999 the defendant became the absolute owner of R.S. No. 846/1+2A/1 measuring 1 acre 28 guntas. The deceased Parameshwarappa became the absolute owner of R.S. No. 846/1+2A/1 measuring 1 acre 26 guntas towards the southern portion and later Parameshwarappa fell ill due to HIV infection and he was in dire necessity of money for his treatment and livelihood of his family. So, he wanted to sell his landed property for which the plaintiff No. 1 gave consent and accordingly defendant purchased the land under registered sale deed dated 29.12.1999 and has received entire sale consideration. Therefore, from the date of purchase, the defendant became the absolute owner in actual possession and enjoyment of the suit schedule property and later on a partition was effected in the family of defendant on 5.1.2007 between the defendant and his sons, in which 1 acre 14 guntas of Southern portion was allotted to the share of defendant and 2 acres of Northern portion was allotted to defendant''s son and same was mutated in the mutation entry No. 337 and since from the date of partition the defendant and his sons are cultivating their respective lands separately, and therefore, he contended that the very suit of the plaintiff is not maintainable and sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves that they are the absolute owners in possession of suit 1A land?

Whether the plaintiff proves that sale deed executed by deceased Parameshwarappa Magalad in favour of defendant on 29.12.1999?

Whether plaintiff proves that alleged interference caused by the defendant in suit 1B property?

Whether the defendant proves that deceased Parameshwarappa sold the suit 1A property for a sum of Rs. 50,000/- with the consent of plaintiff No. 1 for family necessity by executing the registered sale deed on 29.12.1999 in his favour and put in possession?

Whether suit is not bad for non-joinder of necessary parties?

Whether Court fee paid is sufficient?

Whether plaintiffs are entitled to relief sought for?

What order or decree?"

In order to establish his case, plaintiff No. 1 examined PW.1 and two witnesses as PWs.2 and 3 and marked documents Ex. P.1 to P.6 and defendant did not lead any evidence and produced any records.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs failed to prove that they are the absolute owners in possession of the suit schedule 1A land and failed to prove that the sale deed executed by deceased Parameshwarappa in favour of defendant on 29.12.1999 is not binding on them and also failed to prove that the alleged interference by the defendant in suit 1B land and the defendant has proved that deceased Parameshwarappa sold the suit 1A land for Rs. 50,000/- with the consent of plaintiff No. 1 for his family necessity by executing the registered sale deed dated 29.12.1999 and he was put in possession of the same and ultimately dismissed the suit.

Against the said judgment and decree the appellant filed R.ANo.96/2010 before the Fast Track Court at Gadag, who after hearing both parties by the impugned judgment dated 16.12.2011 has dismissed the appeal confirming the judgment and decree of the trial court.

Against the said judgment and decree of the courts below, the present appeal is filed.

I have heard the learned Counsel for the parties to the lis.

Sri. H.N. Gularaddi, learned Counsel for the appellants has contended that the alleged sale deed said to have been executed by the husband of the plaintiff No. 1 and father of plaintiffs 2 and 3 on 29.12.1999 is not binding on the shares of the appellants and there was no legal necessity for the family to alienate the same. Therefore, the said sale deed is not binding on the plaintiffs and also contended that evidence of PWs.2 and 3 clearly disclose that the Parameshwarappa has not alienated the property in favour of defendant. Therefore, he submitted that both the courts below have not considered the oral and documentary evidence on record, which has resulted in miscarriage of justice to the plaintiffs. Therefore, he sought to set-aside the judgment and decree of the court below.

Per contra, Shri Gangadhar J.M. learned Counsel for respondent sought to justify the impugned judgment and decree of the courts below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties to the lis and perused the entire material on record.

The relationship of the plaintiffs and the defendant as stated is not in dispute. It is also not in dispute that there was partition in the joint family between the husband of 1st plaintiff Parameshwarappa and the defendant who are brothers, on 7.1.1999 and in the said partition R.S. No. 846/1+2A/1 measuring 1 acre 28 guntas was allotted in favour of defendant and remaining land in R.S. No. 846/1+2A/1 measuring 1 acre 26 guntas towards Southern side was allotted to Parameshwarappa. The only dispute is whether Parameshwarappa has alienated his share of the suit property or not. According to the defendant his brother Parameshwarappa has alienated his portion of the land in his favour under registered sale deed dated 29.12.1999 for his legal necessity and for the benefit of his family and to meet his medical expenses. The trial court considering both oral and documentary evidence has recorded a finding that Plaintiff No. 1 who is examined as PW.1 during his cross-examination had admitted the partition and also it clearly stated she is having knowledge of the sale deed as on the date of its execution in favour of defendant. But the said sale deed is not at all challenged till the date of filing of the suit and in pursuance of the registered sale deed, mutation also effected in the name of the defendant. The said mutation is also not challenged and the recitals in Ex. P.6-sale deed clearly discloses that late Parameshwarappa for his family necessity and to meet his medical expenses has sold the suit property in favour of his brother- defendant. Moreover the land of the defendant is abutting to the suit land. The said aspect is not denied by the plaintiffs either in the plaint or in their evidence. The recitals of sale deed clearly disclose that the late Parameshwarappa alienated the suit property for his family necessity and for his medical expenses as he was suffering from HIV infection.

PWs.2 and 3 have only deposed regarding possession of the suit land by the plaintiffs. PW.2 in his cross examination has admitted that he has no personal knowledge regarding title and possession of the suit land. PW.3 deposed regarding possession of the suit land. During cross-examination P.W3 has clearly admitted in order to help the plaintiffs he has come to Court to give evidence. So evidence of PW.3 is not helpful to support the contention of the plaintiffs. There is no rebuttal evidence on the defendant''s side but plaintiffs have not at all proved issue Nos. 1 and 2, the documents produced by the plaintiffs fairly goes to show that the defendant purchased the suit land for valuable consideration under registered sale deed dated 29.12.1999 and from the date of purchase he is in possession and enjoyment of the suit land. The contention of the plaintiffs is that defendant is obstructing enjoyment of the suit 1B house property cannot be accepted. A perusal of the entire evidence on record clearly disclose that plaintiffs have not proved issue No. 3 and plaintiffs 2 and 3 have not at all whispered any single word that the defendant has obstructed the plaintiffs peaceful possession and enjoyment of suit 1B property and only they have deposed regarding possession of plaintiff No. 1 over the suit land. On these admissions and based on material on record the trial court dismissed the suit.

On re-appreciation of entire material on record, the lower appellate court concurring with the finding recorded by the trial court has recorded a finding that on going through Ex. P-6, certified copy of the registered sale deed dated 29.12.1999 executed by Parameshwarappa in favour of defendant/Ningappa in respect of the suit land for a consideration of Rs. 50,000/- and there is a recital in the sale deed to the effect that the sale of suit land by Parameshwarappa in favour of Ningappa is for maintenance of his family and for his medical expenses in respect of his long standing illness. PW-1 admitted in her cross-examination that her husband was suffering from illness due to HIV infection and the amount of Rs. 50,000/- received by her husband Parameshwarappa by way of sale of suit land from the defendant, has been used for his medical expenses. Therefore, the lower appellate court dismissed the appeal, confirmed the judgment and decree of the Trial Court.

The facts clearly depicts that there was a partition in respect of the joint family properties between the husband and father of the plaintiffs 1 to 3 and the defendant, and in pursuance of the partition, the mutation entries also reflect their respective shares and subsequently, the share in respect of suit 1A property of Parameshwarappa, he has alienated the same in favour of his brother-defendant. The said fact is not in dispute and inspite of the same, the plaintiff filed the present suit again for partition and the suit is not for declaration that the sale deed is not binding on them. Once, the partition is effected and reached finality, the second suit filed for partition is not maintainable and the prayer sought in the present suit is not maintainable and moreover, it is also not in dispute that the deceased Parameshwarappa has got three daughters and three sons and all the parties are not impleaded in the present suit. In view of the admitted fact that the plaintiff failed to prove that they are the absolute owners and in possession of the suit 1A property and failed to prove the sale deed executed by the deceased Parameshwarappa-the husband and father of plaintiffs dated 29.12.1999 is not binding on them and the courts below have concurrently, held that the defendant has proved that the deceased Parameshwarappa has sold the suit 1A property for a sum of Rs. 50,000/- and the recital in the sale deed also discloses that it was for his family necessity and his medical expenses. The said finding of fact recorded by the courts below is based on the cogent and legal evidence on record. The same is in accordance with law. The plaintiffs have not made out any ground to interfere in this appeal. No substantial question of law is involved in the present appeal. Accordingly, the appeal is dismissed.