EN THE HEGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 28" DAY OF OCTOBER 201Qf =._V
BEFORE
THE HON'BLE MR.JUSTICI$>AH>.BILLJiP!5:'A: "Cf -
RsA.No.284242oQ__'zooA~ .. 3 '
BETWEEN:
1.
Csubramanyam. by
a} Smtsulochana, T _ , ,
W/o.Late Subram.aVny'arVn,. V
Aged about_:7'1_ yea'rs'," ' . .' .
Gold R31:-'gapjpra St'3.'eeit,'"' =
Ma1ur;T'oWn§ " Q V' »
Kolar District '5é§3o 1 .« '
Ravip}'a,}§ash '2. . . "
a) S:nt.Dh'a1'_1a1a;%:rni';-
~ 'W/o'. Late Rm/fiP1'a.kash,
A V"';Ag5e§'d about 43jfears,
V' " ..GoI_d ~ Rarigappa Street,
. "Ma1u1*T'_Ta:Euk,
"~.__Ko}_.a1'.{§~istrict M 563 101.
_
_Sf'o.Late Subramanyam,
Aged about 51 years.
Gold Rangappa Street,
Lg'
-*Ma1'ur Town,
Malur T aluk,
Kolar District.
4. Smt.Geethamn'1a,
W / 0. Plirishnappa,
Aged about 55 years,
Gold Rangappa Street,
Malur Town,
Malur Taluk,
Kolar District -~ 563 I0 1.
5. Sn'1t.Kumudha,
W/o.P0nnuswa3:ny,
Aged about 45 years;_ '~._ _ _ ~ .4 .
7'~'h Cross, W1 Block J eiyanag_ai:,,' }
Bangalore ~ 560 082. H " 1
6. Smt.Amudh:_a,
VV/O.S€1Vi:.1I1'1,_=4 *_ A ' f . '
Aged abput.51é'3 'ys_ars.,_"' "
C /0.Krish'naV'p_pa Berekai,
Bagaiur --R0ad}."*-__"s _
H0sur"'«i'a}uk,* _ 1
Dharmapgri _Dis_trict;
'I'ami.l Nada :3 :"i7'0 001 ...Appe11an'ts
'S1"j§'1'*~E Nagéfaj Hedge, Advs.,)
"
2 'V V V '1 ._ 1f\/[~;._B.l\§a1":jV315.'rA1Tdappa,
, S/0.M;B.Bhadrappa,
.AAged aibout 70 years,
VC."P,Road, Malur T own,
Maiur Taluk,
K0131' District -~ 563 101.
L/
2. An} anappa by LR
a} Smt..Kam3.kshamma,
W/o.Late Anjanappa,
Aged about 78 years,
New Post Office Road,
Malur Town,
Malur Taluk,
Kolar District W 563 101. __
[By Sri.Y.R.Sadasi19a.' Reddy, Adv., foaj C/134§ffi}'4'--oo»..:'.'.' 4' '
****g**_ A d t
This R.S.A is filed under 100 of against the
Judgement and Deer6':§#\\.,,,,,_ dated. oassed in
R.A.No.54/O4 on the file of it-hie Fast Track
Court W 111, tkie-.V:'VgppealV' filed against the
judgement H . V ' ' » 'V28. 1.2004 passed in
o.s.No.439/2003 on~V:'V"tI*.1de~.ftI'e:iof the PR1.Civi1 Judge, (Jr.Dn},
Kolar.
eofningon for Admission this day, the Court
'de_1i{ré;*ed the .to.1iowing:
JUBGMENT
This is plaintiffs second appeal.
L/.
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2. The appeiiants are the LRs of the originai piaintiff
Sri.C.Subrarnanyan'1. The first respondent is defendant No.1.
The second respondent is defendant No.2 and sinceVde.ad.xby
LR Srnt.Kamakshamma, who is the third _
Suit.
3. T he parties will be referred to. to
their rank in the originai suit for the saVkeV_o”f eonvdeniyeneegl
4-. The originai plaintiff S_r_ii.uC.,:Suhranianfirarnfifiied suit
in O.S.No.439/2003 for d’eo}a.ratioVn;, and rnesne
profits. ‘I’hve”easie3o_f oi’i.._,<i§inai'._'piaintiff was that the suit
scheduie property through settlement deed dated
2.9.1978 the ._suit.v"seI'1ed't1ie property was the joint famiiy
an5d1th'e'dei'endant No.2 i.e.. Anj anappa had executed
a feieés-<%"a§e§e;dp 23.2.1962 by taking 1200 /– aiong with
:AAwV'}1iS brother' 'M.~C2.KrisI1nappa and thereafter. the original
Sriv.{E.Subramanyam and his father Chinnapayappa
the owners of the joint family properties. it is stated,
22 t,he-»vpiai11tifi's another brother M.C.Nagaraj also had executed
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5
the release deed dated 23.2.1962. Thus all the sons of late
Chinnapayappa had ceased to be the members of the joint
family by relinquishing their right, title and interest
joint family properties including the suit schedule_pI*olper§y£’. A’
5. It is stated, the father opfmy the ori’gin:al:”plaintiffv
executed a settlement deed dated 02.109. the
original plaintiff transferring his’rig–ht, titleland
suit schedule property and since____tlhe_n’;_y_»the’original plaintiff
became the owner of the suitilllsohed’§.il:.e
6. 3’ltl”is”sVt.ated::fi:ti1e”seeondlldefendant i.e., Anjanappa
had no right, title the suit schedule property
and has il1.egally” sale–deed dated 11.10.1963 in
*llay”o’urV 3–.”i’1is”nwifelV””Sn1t.Karnakshamrna i.e., the third
dete–nda~nt’. . was granted prior to the execution of the
elease the sate deed executed in favour of the third
_. _. f j,”d’e.tei2dant illegal.
1/
7. It is stated, when the original plaintiff went near
the suit schedule property during the last. week of.._dafniia,ry
1986, he found that the first defendant
Cultivating the land. The plaintiffu
defendant as to why he has a11o\ved’.Vth.Aeg
cultivate the land. The second’-defendaiitg to1d”._:hVi:fn””ti1’at he*7
has sold the property favour: first «defendant
Nanjappa for a sum of defendant has
executed reeonxgeyairfce of the second
defendant and redeemed before the
end of fhefiiefved it and went home.
The’reafter,fthe’-piaintiffltriow that the sa1e–deed does
not contain any”condit*ion. regarding reconveyance. Therefore,
I-‘ftv.};1,e’orig;inai”p1aintiff filed suit for declaration, possession
and Ifnesney V
8. it .. first defendant i.e., Nanjappa has filed his
“statement contending that he has purchased the suit
.__sehed.u1e property from the defendants 2 and 3 for valuable
7
consideration of €5,000/W and he is in possession of the suit
schedule property as its owner and he has harvested the
eucalyptus trees. It is also stated, the suit schedulevpropperty
has been granted in favour of the second defendalit
proceedings bearing No.LND.41/60:61′ dated”::._’i.9.’2,’_1E)6l.u”»
Therefore, the first defendant has prlayeifilg for disrr1.ilss:aE:V’l_ofthis
suit.
9. The defendants 2 and–f3’»-haye fi1e’d.._the:ir written
statement contending thatlllthei has executed
sa}e~deed in favolgllilof.’th(§’Vthi’r”cl d:e*fVer1_da’nt.x dated 11.10.1963
and the suit schedluife. has been granted in favour of
the secondfig ” lvide proceedings bearing
“dat_e__c_l_.19.2.i961. it is also stated, the
have sold the suit schedule property
:fV.___along.”With A theVp’a1:eucalyptus trees to the first defendant.
.I§uVrthe1’ll it stated, the land was granted to the second
under the darkasth Vide proceedings bearing
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No.LND.4l/60-61 dated 19.2.1961 and the plaintiff has no
right, title and interest in the suit schedule property.
10. It is stated, the second defendant separated.._from
the family and applied for the grant of land and
has granted the land ie. the suit…»sched1ille”
favour of the second defendant Vide
No.LND.4«l /50-51 dated 19.2.
11. It is stated, ,–in the second
defendant has executed and the suit
schedule pzpropelrtyj’§2vasl.nct.:jtreatedulas the joint family property
and it is theyproperty.jfof”t.he«’second defendant. it is also
stated, they s_econdVAdefend’anzt has executed nominal sale–deed
‘f’f-civdukl diff hlisy_.wifev”lliH.e.. the third defendant. Further it
deed has been concocted to knock off
lithe property’. ‘F.d’rt,her it is stated, the defendants 2 and 3 have
if if the suit ‘schedule property in favour of the first defendant
plaintiff cannot claim any right, title or interest in the
suit schedule property. Therefore, the defendants 2 and 3
have prayed for dismissal of the suit.
12. The Trial Court has framed the folloxving
1) Whether the plaintiff proviesmhis pti’:1e_:1iiv7n;slpe.é:t hr
the suit schedule property’?
2) Whether the pla.int1ff’~._}5qfoVes itthat’~v.thellll”slale ldeedlll
executed by the 2″” defendantin fa’v’o1_1r.–of the 3*”
defendant dt. 1 l”‘;-.1iJp.63p sale deed executed
on 9.5.85 by Asecihond’ defendants in
fav0ur;o1″.+fh’.e deferidant lare__nij11 and void’?
3) Whether lp1’oves that he is entitled to
schedule property?
4) _’Whe’the1’ith_eAAplaintiff is entitled for a decree as
prayed ffor?__ _____
‘ order or decree?
Court has answered issue No. 1 to 4 in
_ _le._tl1eVnegative” consequently, has dismissed the Suit.
V,
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14. The appellants have filed appeal in
R.A.No.54/2004 and it has been dismissed.
15. Therefore, this second appeal.
16. The learned counsel for the
that the Courts below have errcdin dis’1nissingv:tlre-suiti
also submitted that the suit s_cl1led_u1~e_v property has been
granted in favour of who was the
Manager of the joint enures to the
Furthefr hemsubmitted that the
benefit of the
second executedllllthe release deed dated
23.2.1962 relii’1quishin;g.lll’a1.l:”‘hi’s rights in the joint family
properties .. suit schedule property and
jlsruit schedule property has come to the original
plaintiff thi§Vd*t1gii.l’.i’Vsettlement deed and therefore, the original
llplaintiffiis .._j’che.’«lo\lvner of the suit schedule property and the
were not justified in dismissing the suit. He
.subfnitted that it is clear from the recitals of Ex.P.3 that
T -thc”‘second defendant and M.C.Krishnappa have relinquished
L/..
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all their rights in the joint family properties including the suit
schedule property. Further he submitted that as per
ie, the settlement deed, the suit schedule H
settled in favour of the original plaintiff t1j”e~..
original plaintiff is the owner of the-._su_l’taschedule
and therefore, the Courts be_loxzgr vsfere
dismissing the suit. He also subn’_1__itt~e_d V.that..tl1«e:v.Cou?rts below
have failed to consider “”e;fil1-il3’itsff-,’P§43–Vff:aind_ 13-4 in proper
perspective. He, tliereforellv’ the impugned
judgment and deeifeesv-ci–annot;’be sustairred in law. In support
of his subzniissiorn_Vhed7’§.pla_eed’ relianflcle on the decision of this
Court reportedin A?l,9ll87.l::Karnataka page 2883.
xagair1’st,.__t_h:ls, the learned counsel for the first
responde1_’1t._,’subrhitted that the Courts below on proper
if’-,.pvconside’r’ation’.V*Vo’f material on record have rightly held that
.the__ origiIial”;_plaintiff is not the owner of the suit schedule
the suit schedule property has been granted in
H of the second defendant and it is not relinquished and
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schedule property and therefore, the impugned judgment and
decrees do not call for interference. He also submittetlthat
no substantial question of law arises for consideragtionfini this.
appeal and therefore, the appeal is liable to ”
18. I have carefully considered’the._subniiss’ions”
by the learned counsel for the parties.
19. I do not find anypmeritfinullielfieilsubmission of the
learned counsel for_ti1.e if tilt is relevant to
note. the suit and mesne profits.
The original suit schedule property
came to hirn’ deed dated 2.9. 197 8 and the
suit schle-dule prope1’ty virasllllgranted in favour of the second
:’V’:_lVefei*ida’1’1Vt Managerllllof the joint family and the second
.l’.i’pe.fl;ecuiied release deed dated 23.2.1962
lVIelinqu’i’shi:ig his rights in the joint family properties
4H_::’l.’4.includ,ing the suit. schedule property and thereafter, through
spe_ttleVri’1ent deed, the suit schedule property has been settled
“favour of the original plaintiff and therefore, the original
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plaintiff is the owner of the suit schedule property. Both the
Courts below on proper consideration of the mat€;rialr._Von
record have concurrently held that Ex.P.3
deed has been executed only in respect of”ti’1-ell’_pro.perties”‘V
standing in the name of Chinnapayappaw. they-..’stiu;it
schedule property and therefo1:e3″‘–~the
anything through E3x.P.4. The “haye_l’1eld that
the second defendant was five to six years
prior to the exepcution suit schedule
property has second defendant
by the defendant has not
relinquisheldljiis of the suit schedule property.
The learned appellants contended that the
defeliidaiapt was Manager of the joint family and the
suit. has been granted in favour of the
AllVsecond”‘««..defendant prior to the execution of Ex.P.3 and
i.”.f’ne”r’e.fore, the grant enures to the benefit of the joint family
a:n_d’=th’e~Asecond defendant has executed EX.P.3 relinquishing
T “his rights in the joint family properties including the suit
l,/My
15
schedule property and therefore, the Courts below were not
justified in dismissing the suit. it is difficuit to believe
is in the evidence of P.W.} that the second ”
residing separately five to six years priorto t_,he_. .e§(eci,1tioi1
Ex.P.3. The recitals of E:-c.P.3 ValsodA:’Sho\_ylfthfatiltlie2
defendant was residing separate«ly”‘~-tat the
Apart from this, it is clear froin tlie’ What is
relinquished is the right,%in standing
in the name of ‘property. By no
stretch of the second defendant
has relinqtjiisheld of the suit schedule
property. below were justified in
holding schedule property has not been
If the suit schedule property is
notirelinquisiied,fthien, Ex.P.4 is of no consequence and it
“cannot convey anything. Therefore. in my considered View,
below were justified in holding that the plaintiffs
hlaafe’–failed to prove the title to the suit schedule property and
if eonseqi.1e’nt1y, dismissing the suit. The findings recorded by
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the Courts do not (tail for interference. There is no merit in
this appeal and no substantial question of law arises for
consideration in this appeal and therefore, the appeal isiiiable
to be dismissed.
20. Aecordingiy. the appeal is dismissec}Vi””-.::.
No costs.
Bss/JS