Back
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
ANAND BYRAREDDY & S. SUJATHA, JJ.
Leharchand & Others – Appellants
Versus
Gulabchand & Others – Respondents
Regular First Appeal Nos. 100016, 100017, 100018, 100099 of 2015
Decided On : 30.9.2015
Watan Properties - Bombay Hereditary Offices Act, 1874, Karnataka Village Offices Abolition Act, 1961 - The court held that the plaintiff had perfected his title to the property by continued possession, and was entitled to claim partition as a co-owner. The plaintiff was not bound by the arbitration clause in the agreement of sale dated 23.3.2001. Defendants 18 to 25 were restrained from interfering with the plaintiff's possession. The suit of the plaintiff and the counter claim of defendant no. 1 and defendant nos. 2 to 4 were decreed, with each entitled to a 1/5 share in the suit schedule properties.
Fact of the Case:
The plaintiff, Gulabchand, aged about 58 as on the date of the suit, was said to be of unsound mind. The suit was brought on his behalf by his son, Nilesh. The plaintiff had died during the pendency of the suit. The plaintiff and defendants no. 1 to 4 were said to be the owners of property bearing CTS Nos. 361 and 366, Kusugal Road, Keshwapur, Hubli. The said properties measuring 3 acres 4 guntas and 1 acre 25 guntas, respectively, were said to be in the possession of the plaintiff and the said defendants to the extent of 5/8 share and M/s. Gadag Co-operative Cotton Sales Society, Defendant no. 17, was said to be in possession of the remaining 3/8 share of the said properties.
Finding of the Court:
The court held that the plaintiff had perfected his title to the property by continued possession and was entitled to claim partition as a co-owner. The plaintiff was not bound by the arbitration clause in the agreement of sale dated 23.3.2001. Defendants 18 to 25 were restrained from interfering with the plaintiff's possession. The suit of the plaintiff and the counter claim of defendant no. 1 and defendant nos. 2 to 4 were decreed, with each entitled to a 1/5 share in the suit schedule properties.
Issues: The court addressed the issues of the plaintiff's entitlement to claim partition as a co-owner, the necessity of seeking a declaration of title, the applicability of the arbitration clause, the right of defendants 18 to 25 to contest the suit, and the injunctory reliefs sought by the plaintiff.
Ratio Decidendi: The plaintiff's continued possession led to the perfection of his title to the property. The plaintiff was not bound by the arbitration clause in the agreement of sale. Defendants 18 to 25 were restrained from interfering with the plaintiff's possession. The plaintiff and defendants no. 1 to 4 were each entitled to a 1/5 share in the suit schedule properties.
Final Decision: The appeals were allowed, and the suit of the plaintiff and the counter claim of defendant no. 1 and defendant nos. 2 to 4 were decreed, with each entitled to a 1/5 share in the suit schedule properties. Defendants no. 5 to 25 were restrained by a permanent injunction from interfering with the peaceful possession of the plaintiff and others of the suit properties.
ANAND BYRAREDDY, J.
1. These appeals are heard and disposed of by this common judgment, as the appeals are all directed against the same judgment of the trial court.
2. The parties are referred to by their rank before the trial court, for the sake of convenience.
3. The appeal in R.F.A. No. 100016 of 2015 is filed by the legal representatives of the deceased defendant no. 2.
The appeal in R.F.A. No. 100017 of 2015 is filed by the legal representatives of the deceased plaintiff no. 1.
The appeal in R.F.A. No. 100018 of 2015 is filed by the legal representatives of the deceased defendant no. 1 and by defendants no. 3 and 4.
The appeal in R.F.A. No. 100099 of 2015 is filed by Defendant no. 17.
4. The facts of the case are said to be as under:-
The plaintiff, Gulabchand, aged about 58 as on the date of the suit, was said to be of unsound mind. The suit was brought on his behalf by his son, Nilesh. The plaintiff had died during the pendency of the suit.
The plaintiff and defendants no. 1 to 4 were said to be the owners of property bearing CTS Nos. 361 and 366, Kusugal Road, Keshwapur, Hubli. The said properties measuring 3 acres 4 guntas and 1 acre 25 guntas, respectively, were said to be in the possession of the plaintiff and the said defendants to the extent of 5/8 share and M/s. Gadag Co-operative Cotton Sales Society, Defendant no. 17, was said to be in possession of the remaining 3/8share of the said properties. The boundaries to the said properties and other particulars were indicated in the Schedules to the plaint.
The above said properties were said to be Watan properties, governed by the provisions of the Bombay Hereditary Offices Act, 1874 (Hereinafter referred to as the BHO Act, for brevity). The property bearing CTS No. 361 was said to have been obtained under a permanent lease dated 9.3.1920. And the property bearing CTS No. 366 was said to have been acquired under a lease deed dated 23.10.1915, for a term of 50 years, by the ancestors of Defendants no. 5 to 16, namely, Adiveppagouda, who is said to have held 50% share in the said properties, Basanagouda to the extent of 25% and Marigouda to the extent of 25%. The said lessees are said to have transferred the lease hold rights to others.
It transpires that the property bearing no. 361 was at a point of time the subject matter of recovery proceedings and is said to have been brought to auction sale in terms of the decree. The father of the plaintiff, Shah Veljee Kanjee, is said to have purchased the same at the auction, held in the year 1941.
The lease hold rights of the other property bearing no. 366, is also said to have been acquired by the father of the plaintiff from its erstwhile lessees, in the year 1943.
The plaintiff's father is said to have expired on 2.12.1957. Immediately on his expiry one, K.H. Patil is said to have instituted arbitration proceedings against the family, for recovery of certain money. In lieu of the award amount the said Patil and another are alleged to have brought pressure on the family, to execute two sale deeds in favour of Gadag Cooperative Cotton Sales Society Limited, Gadag, and another society of Annigeri, as on 19.12.1957. The plaintiff and defendants no. 1 to 4 are said to have challenged the arbitration award in a civil suit in O.S. No. 9 of 1969. The same is said to have been decreed in their favour, as on 26.8.1977. In terms of the said decree, the plaintiff and his family members were declared owners of the lease hold rights to the extent of 5/8 share of the properties. The said judgment and decree is said to have been unsuccessfully challenged before this court and the Apex court, as well.
In the above background, M/s. Eureka Developers, defendant no. 18, a partnership firm, said to be engaged in real estate business, allegedly with the active connivance of defendants no. 19 to 25, are said to have got instituted two civil suits in the Court of Civil Judge, (Senior Division), Hubli, in O.S. No. 364 of 2004 and O.S. No.
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
