AND

DECREE

DATED

24.07.2006 PASSED IN R.A.NO.11/2006 ON THE FILE OF THE

III ADDL. DISTRICT JUDGE, GULBARGA, DISMISSING THE

APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

14.12.2005 PASSED IN O.S.NO.29/2002. AND SUIT OF THE

PLAINTIFF BE DECREED, IN THE INTREST OF JUSTICE AND

EQUITY.

THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The plaintiffs have filed this second appeal.

The plaintiffs had instituted a suit seeking for a

declaration that they were the owners in possession of land

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bearing Sy.No.173/A measuring 11 acres 5 guntas which

was situate at Aurad Village, Jewargi Taluk of Gulburga

District.

They also sought for a declaration that the Sale Deed

dated

03.06.1995

executed

by

their

grandfather

-

Sharanappa Saradagi in favour of Rajshekar Malipatil, the

brother of defendants 1 and 2 was null and void. They also

sought for a declaration that another Sale Deed also dated

03.06.1995 executed by their mother Indira Bai in favour

of Rajshekar Malipatil (brother of defendants 1 and 2) was

null and void.

A consequential prayer of perpetual injunction to

restrain

the

defendants

from

interfering

with

the

possession and for correction of record of rights ordering

deletion of the name of defendants 1 and 2 was also

sought for.

5.

The basis of the plaintiffs’ claim over the land was

that the land bearing Sy.No.173/A measuring 11 acres 5

- 4 -

guntas and the land bearing Sy.No.188/6 measuring 10

acres 15 guntas were their ancestral properties and since

their father - defendant No.3 - Shankreppa was addicted to

bad habits and was attempting to alienate the properties, a

suit in O.S.No.102/1987 had been filed by them against

their father. They contended that the said suit had been

decreed and they were granted 1/4^th share in Sy.No.173/A

and Sy.No.188/6, subject to release of mortgage which

had been created by their grandfather - Sharanappa

Saradagi.

6.

It was also stated that their names had been entered

in the record of rights to an extent of 2 acres 31 guntas

and despite this decree and entry of their names in the

record of rights, the property was sold to Rajshekar

Malipatil, the elder brother of defendants 1 and 2, who

incidentally was the elder brother of their mother Indu Bai.

It was stated that their grandfather had sold 8 acres 14

guntas of land out of 11 acres 05 guntas in Sy.No.173/A of

land and their mother had sold remaining extent under

- 5 -

another Sale Deed. It was alleged that the sale was not for

any family necessity and no consideration had also been

paid and therefore, the same was required to be cancelled.

7.

This suit was contested by defendants 1 and 2 i.e.,

the brothers of their maternal uncle Rajashekar Malipatil.

The mother and father of the plaintiffs did not file the

written statement.

8.

The Trial Court, on the basis of evidence adduced by

the plaintiffs, came to the conclusion that they had failed

to establish that they were the owners of the suit property

and that they were entitled for seeking for a decree of

cancellation of two Sale Deeds.

9.

It may be pertinent to state here that the brothers of

the maternal uncle of the plaintiffs i.e., defendants 1 and

2, though had filed a written statement, did not adduce

any evidence and had not participated in the proceedings.

10.

Being aggrieved by this dismissal, an appeal was

preferred by the plaintiffs.

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11.

However, the Appellate Court did not find any reason

to disagree with the findings recorded by the Trial Court

and it proceeded to dismiss the appeal. Consequently, this

second appeal has been preferred.

12.

This second appeal was admitted to consider the

following substantial questions of law:

“1. Whether the courts below were justified in

dismissing the suit filed by appellant- plaintiffs by

concluding that they were not entitled to relief of

cancellation of the sale deed dated 03.06.1996

bearing document No. 355/1995-96 by which

plaintiff’s mother alienated 2 acr