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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. Sandesh, J.
Sri G. Nagaraju S/o. Gurappa Reddy - Appellant
Versus
Mr. Ramesh S/o. Late Yellappa and Ors. – Respondents
R.S.A. NO.1837 of 2017 (PAR)
Decided On : 26-05-2023
Hindu Succession Act, 1956 - Section 8 - Second appeal - Property - Relief of partition - Possession of property - Second appeal is filed by appellant-defendant No.6 praying Court to set aside judgment and decree passed – First Appellate Court failed to take note of law of limitation, since suit filed after 18 years of sale made by mother - Para 31.
Finding of the Court:
First Appellate Court failed to take note of fact that sale deed was registered and very registration itself is notice to public and plaintiff and other defendants i.e., major sons were living together and had knowledge of sale and hence, now plaintiff cannot contend that he came to know same only on intervention - Apart from that, plaintiff and defendant Nos.2 to 5, who have also succeeded to estate of property left by father kept quiet for a period of 18 years and filed suit after 18 years through another brother, who is younger to all of them and that too, seeking relief of only partition, even though they were having knowledge of sale transaction made by mother in favour of appellant and parted with possession of property and cannot claim that not having knowledge, when purchaser is in possession and invested money for improvement and revenue records are also changed to his name - These are aspects which have not been considered by First Appellate Court - Hence, Court is of opinion that First Appellate Court has committed an error in reversing finding of Trial Court.
Result: Appeal allowed.
JUDGMENT :
This second appeal is filed by the appellant-defendant No.6 praying this Court to set aside the judgment and decree dated 09.06.2017 passed by the Court of III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal in R.A.No.5029/2015 and set aside the judgment and decree dated 14.01.2015 passed by the Court of the Senior Civil Judge and JMFC at Anekal, Bengaluru Rural District in O.S.No.88/2013.
2. The parties are referred to as per their original rankings before the Trial Court as plaintiff and defendants for the sake of convenience and brevity.
3. The factual matrix of the case of the plaintiff in O.S.No.88/2013 while seeking the relief of partition is that the suit property was the service inam land re-granted in favour of Thoti Chinnappa, S/o. Thoti Chikkelliga. The said Thoti Chinnappa being the owner in possession of the suit property, out of his love and affection towards Yellappa, S/o. Gabbaiah had gifted the suit property in favour of the said Yellappa through the gift deed dated 08.05.1972. Since the date of said gift deed, he was in actual possession and enjoyment of the suit property. All the revenue documents have been transferred in the name of Yellappa. The said Yellappa died intestate leaving behind his wife Muniyellamma i.e., defendant No.1 and his children i.e., defendant Nos.2 to 5 and plaintiff. The plaintiff being the class-I legal heir and successor to the suit property, continued in joint possession of the suit property. After the death of Yellappa, the revenue records have been continued in the name of the defendant No.1 on behalf of all the joint family members. This being the facts, the plaintiff and defendant Nos.1 to 5 are in actual possession and enjoyment of the suit property. Recently, one Venkataswamy, S/o. Chinnappa attempted to interfere with the possession of the plaintiff over the suit property. At that time, they have filed the suit in O.S.No.473/1991 before the Munsiff and JMFC, Anekal. The said suit was decreed in favour of the plaintiff and his family members through the judgment and decree dated 21.04.1994. The said judgment and decree became final and conclusive, as there is no appeal against the said judgment and decree. Now, the defendant No.6, without having any manner of right, much less possession over the suit property, tried to put up construction on 05.11.2012 in and over the suit property. At that time, the plaintiff with the help of villagers, stopped the illegal act of the defendant No.6. Thereafter, the plaintiff enquired and came to know that the defendant No.1 has purported to have registered the sale deed dated 03.08.1995 in favour of the defendant No.6. On the basis of the sale deed dated 03.08.1995, the defendant No.6 entered his name to the records of the suit property. The plaintiff, immediately conveyed the panchayath on 01.10.2013 and enquired about the alienation. The plaintiff and defendant Nos.1 to 5 being the joint family members, they are entitled to 1/6th share over the suit property. The defendant No.1 has no right to execute the sale deed in favour of the defendant No.6. The said document in favour of the defendant No.6 is a created document and the same does not confer any right, title in favour of the defendant No.6. Now, on the basis of the illegal documents, the defendant No.6 is trying to dispossess the plaintiff from the possession of the suit property. The plaintiff being the joint family member, he is entitled to 1/6th share over the suit property. But, the defendants are not ready to effect the partition. Hence, the defendant No.6 has filed this suit.
4. In pursuance of the suit, notice was ordered to the defendants and the defendants, after service of notice, did not choose to appear before the Trial Court and they were placed exparte.
5. The plaintiff, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 to P10. The defendants have not chosen to examine any witness and di
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