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2022 Supreme(Online)(Kar) 44913
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RFA No. 220 of 2006
C/W RFA CROB NO.100001/2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR FIRST APPEAL NO. 220 OF 2006 (PAR)
C/W RFA CROB NO.100001/2022 (PAR/POS)
IN RFA NO.220/2006
BETWEEN:
MOHAMMAD RAHIM KHAN,
S/O MOHAMMAD IBRAHIM KHAN,
AGED 65 YEARS, OCC: TRADE,
R/O KONNUR, GOKAK TALUK,
BELGAUM DIST.
&APPELLANT
(BY SRI. SHIVARAJ S BALLOLI AND
SRI. RAMESH I.ZIRALI, ADVOCATES)
AND:
1.
BASAVARAJ SATTEPPA BANNISHETTI,
AGED 31 YEARS, OCC: AGRICULTURIST,
R/O GOKAK-591307, BELGAUM DIST.
2.
SATTEPPA CHENNAPPA BANNISHETTI
SINCE DECEASED BY LRS.
2A. SMT.MALLAVVA
W/O RAMAPPA JIONARAL,
AGED 53 YEARS, OCC: HOUSEHOLD,
2B. SMT.MAHADEVI,
W/O BASAVANNEPPA TILAGANJI,
AGED 51 YEARS, OCC: HOUSEHOLD,
R/O MADANBHAVI,
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RFA No. 220 of 2006
C/W RFA CROB NO.100001/2022
DHARWAD TQ. & DIST:-581214.
2C. SMT.SHAKUNTALA,
W/O BASARAJ PATIL,
AGED 46 YEARS, OCC HOUSEHOLD,
R/O DHUPADAL, GOKAK-591307,
BELGAUM DIST.
3.
SMT.BASAVVA
W/O SATTEPPA BANNISHETTI,
AGED 66 YEARS, OCC HOUSEHOLD,
R/O GOKAK, BELGAUM DIST.-591307.
4.
CHENNAPPA SATTEPPA BANNISHETTI
SINCE DECEASED BY HIS LRS.
4A. SMT.KAMALAVVA,
W/O CHENNAPPA BANNISHETTY,
AGED 46 YEARS, OCC: AGRICULTURIST,
R/O KOLAVI, GOKAK TQ.
BELGAUM DIST-591307.
4B. KUMARI RENUKA
MINOR, D/O CHENNAPPA BANNISHETTI,
REP BY NATURAL GUARDIAN MOTHER R4A
AND RESIDING WITH HER.
5.
MAHANTESH SATTEPPA BANNISHETTI,
AGED 36 YRS, OCC: AGRICULTURIST,
R/O GOKAK, BELGAUM DIST-591307.
6.
SHANKAR SATTEPPA GANNISHETTI,
AGED 44 YEARS, OCC: AGRICULTURIST,
R/O GOKAK, BELGAUM DIST-591307.
7.
IRAVVA SATTEPPA BANNISHETTI,
MAJOR, OCC: AGRICULTURIST,
R/O GOKAK, BELGAUM DIST-591307.
&RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B.HIREMATH, ADV. FOR R1;
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RFA No. 220 of 2006
C/W RFA CROB NO.100001/2022
SRI. D.B.KARIGAR, ADVOCATE FOR R4(A & B);
SRI. PRASHANTH S.KADADEVAR, ADVOCATE FOR R5;
R2(A, B & C), R3, R6 AND R7 ARE SERVED;
R4(B) IS MINOR REP.BY R4(A))
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
14.09.2005 PASSED IN O.S.NO.101/1995 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.), GOKAK, PARTLY DECREEING THE SUIT
FOR PARTITION.
IN RFA CROB NO.100001/2022
BETWEEN:
MAHANTESH S/O SATTEPPA BANNISHETTI,
AGE: ABOUT 51 YEARS,
OCC: AGRICULTURIST,
R/O GOKAK-591 307,
TQ: GOKAK, DIST: BELAGAVI.
&CROSS-OBJECTOR
(BY SRI. PRASHANT S.KADADEVAR, ADVOCATE)
AND:
1.
BASAVARAJ SATTEPPA BANNISHETTI,
AGED ABOUT 46 YEARS, OCC: AGRICULTURIST,
R/O GOKAK-591307, TQ: GOKAK,
DIST: BELAGAVI.
SATTEPPA S/O CHENNAPPA BANNISHETTI
SINCE DECEASED BY HIS LRS.
2.
SMT.MALLAVVA
W/O RAMAPPA JINARAL,
AGED ABOUT 68 YEARS,
OCC: HOUSEHOLD WORK,
R/O JODAHATTI-591 222,
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RFA No. 220 of 2006
C/W RFA CROB NO.100001/2022
TQ: RAIBAG, DIST: BELAGAVI.
3.
SMT.MAHADEVI,
W/O BASAVENAPPA TILAGANJI,
AGED 66 YEARS, OCC: HOUSEHOLD WORK,
R/O MADANBHAVI-581 105,
TQ: DHARWAD, DIST: DHARWAD.
4.
SMT.SHAKUNTALA,
W/O BASAVARAJ PATIL,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD WORK,
R/O DHUPADAL-591218,
TQ: GOKAK, DIST: BELAGAVI.
5.
SMT.BASAVVA,
W/O SATTEPPA BANNISHETTI,
AGED ABOUT 81 YEARS,
OCC: HOUSEHOLD WORK,
R/O GOKAK, BELGAUM DIST.-591307.
CHENNAPPA SATTEPPA BANNISHETTI
SINCE DECEASED BY HIS LRS.
6.
SMT.KAMALAVVA,
W/O CHENNAPPA BANNISHETTY,
AGED ABOUT 61 YEARS,
OCC: AGRICULTURIST,
R/O KOLAVI, GOKAK TQ.
BELGAUM DIST-591307.
7.
KUMARI RENUKA,
D/O CHENNAPPA BANNISHETTI,
AGE: 31 YEARS,
OCC: NOT KNOWN,
R/O KOLAVI-591 307,
TQ: GOKAK, DIST: BELAGAVI.
8.
SHANKAR S/O SATTEPPA BANNISHETTI,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST,
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RFA No. 220 of 2006
C/W RFA CROB NO.100001/2022
R/O GOKAK, TQ: GOKAK,
DIST: BELAGAVI -591307.
9.
IRAVVA D/O SATTEPPA BANNISHETTI,
AGE: MAJOR, OCC: AGRICULTURIST,
R/O GOKAK-591307, TQ: GOKAK,
DIST: BELAGAVI.
10. MOHAMMADRAHIMKHAN,
S/O MOHAMMADIBRAHIMKHAN KHAN,
AGE: ABOUT 80 YEARS,
OCC: TRADE,
R/O NAKA NO.1, GOKAK-591307,
TQ: GOKAK, DIST: BELAGAVI.
&RESPONDENTS
THIS REGULAR FIRST APPEAL CROSS-OJECTION IN RFA
NO.220/2006 IS FILED UNDER ORDER XLI RULE 22 R/W
SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE
DATED 14.09.2005 PASSED IN O.S.NO.101/1995 ON THE FILE
OF THE CIVIL JUDGE (SR.DN.), GOKAK, PARTLY DECREEING
THE SUIT FOR PARTITION.
THIS APPEAL AND THE CROSS-OBJECTION COMING ON
FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
['SHIVARAJ S BALLOLI', '', 'RAMESH I ZIRALI', 'VK NOT FILED', 'S V DESHPANDE', '', 'R A : MALLAVVA - SERVED', 'R B : MAHADEVI - SERVED', 'R C : SHAKUNTALA - SERVED', 'R : BASAVVA - SERVED', 'D B KARIGAR & I M SHEREGAR', 'FOR R A & B', 'MINOR R/BY : R A', 'PRASHANTH S KADADEVAR', 'FOR R', 'R : SHANKAR - SERVED', 'R : IRAVVA - SERVED']
RFA No.220/2006 is filed by the defendant No.7 in
O.S.No.101/1995 on the file of the Civil Judge (Sr.Dn.), Gokak
challenging the judgment and decree dated 14.09.2005.
RFA
CROB
No.100001/2022
is
filed
by
the
defendant No.4 challenging the judgment and decree insofar as
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it related to refusal of the declaration of his share in the suit
schedule properties.
The suit in O.S.No.101/1995 was filed for partition
and separate possession of the plaintiff9s 1/7th share in the suit
schedule properties. The plaintiff claimed that land bearing
Sy.No.151/1+2/2/3, Sy.No.152/2 and Sy.No.520 situated at
Gokak and house properties bearing CTS No.4698, 4703 and
4700 were properties of a joint family comprised of the plaintiff
and defendants 1 to 6. He claimed that defendants 3 to 6 were
his siblings while the defendants 1 and 2 were their parents.
Defendant No.1 got the land in Sy.No.520 converted for non-
agricultural use in the year 1985. He alleged that defendant
No.1 was addicted to alcohol, was a womanizer and indulged in
gambling. Defendant No.3 was also addicted to vices at a very
young age. The plaintiff claimed that his family was financially
sound and there was no need to raise any loan to maintain the
family. Defendants No.1 and 3 together sold the land bearing
Sy.No.520 measuring 32 guntas in favour of defendant No.7 in
terms of a sale deed dated 03.09.1985. He alleged that the sale
was without any corresponding legal necessity and the sale
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consideration was never utilized for the benefit of the joint
family. He contended that the sale in favour of defendant No.7
was therefore not binding upon him. Defendants No.1 and 3
died during the pendency of the suit and their legal
representatives were brought on record. Defendant No.1(a) to
1(d) admitted the claim of the plaintiff and prayed that their
share be allotted in the suit properties. Defendants No.2, 3(a),
3(b), 4 and 5 also conceded to the suit claim and prayed for
allotment of their share in the suit schedule properties.
Defendant No.7 filed a separate written statement
denying the claim of the plaintiff. He contended that defendants
No.1 and 3 were god-fearing persons and they had offered, in
the presence of elderly persons in the village that they would
sell the land bearing Sy.No.520 to defendant No.7 for the
purpose of establishment of an oil mill. He claimed that
pursuant to such offer, the defendant No.7 got the land
converted for non-agricultural use and thereafter purchased it
in terms of the sale deed referred above. He claimed that the
sale deed was for the benefit of the joint family. He also
contended that none of the defendants had challenged the sale
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in his favour and therefore, the suit was an oblique attempt by
the plaintiff to deprive defendant no.7 of the suit schedule
property.
Based on the rival contentions, the trial Court
framed the following issues:
(1) Whether
the
plaintiff
proves
that
the
defendants 1 and 3 were addicted to bad vices
at the time of alienation of the suit property?
(2) Whether the plaintiff proves that the registered
sale deed dated 3.9.1985 is bogus, sham and
not binding on the share of the plaintiff?
(3) Whether the defendant No.7 proves that there
was legal necessity for the sale of the suit land
for the family of the defendant No.1 or it was
for the benefit of the family or that he made
proper
and
bonafide
enquiry
as
to
the
existence of such necessity and did all that was
reasonable
to
satisfy
himself
as
to
the
existence of such necessity?
(4) Is this suit a collusive suit at the instance of
the plaintiff9s parents and his brothers to gain
some illegal benefit from the defefendant No.7?
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(5) Whether the suit is maintainable without
bringing the other family properties into the
hotch-pot?
(6) Whether
defendant
No.7
proves
that
he
invested the amount for getting the suit land
converted as Non Agricultural land in the name
of
the
defendant
No.1
prior
to
getting
registered sale deed?
(7) Whether the plaintiff prove
