- 1 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR SECOND APPEAL NO. 1994 OF 2015 (PAR-) BETWEEN: 1. SRI. NARASIMHAIAH S/O LATE. CHIKKABIDDAPPA, AGED ABOUT 54 YEARS, R/A VADERAHALLI, JIGANI HOBLI, BANGALORE URBAN DISTRICT - 562 106. 2. SRI. KAVERAPPA S/O LATE CHIKKABIDDAPPA, AGED ABOUT 49 YEARS, R/A VEERASANDRA VILLAGE, ATTIBELE HOBLI, ELECTRONIC CITY POST, ANEKAL TALUK, BANGALORE DISTRICT - 562 106. …APPELLANTS (BY SRI. VISWANATHA SETTY V., ADVOCATE) AND: 1. SRI. MUNISWAMY S/O LATE CHIKKABIDDAPPA, AGED ABOUT MAJOR R/AT VADARAHALLI, JIGANI HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT - 562 106. Digitally signed by VEDAVATHI A K Location: High Court of Karnataka - 2 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 2. SRI. VENKATESH AGED ABOUT 39 YEARS 3. SMT. MUNILAKSHMI AGED ABOUT 37 YEARS, 4. SMT. VENKATAMMA AGED ABOUT 34 YEARS, THE RESPONDENT NO.2 TO 4 ARE CHILDREN OF LATE SMT. GOWRAMMA AND GRAND CHILDREN OF SRI. MUNIYAPPA @ PAREDAPPA AND ALL ARE R/A. SAKALAVARA VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT - 562 106. 5. SMT. LAKSHMAMMA W/O KRISHNAPPA, MAJOR, 6. SMT. CHAMUNDAMMA W/O LATE MUNISWAMAPPA, MAJOR 7. SMT. MUNITHAYAMMA W/O MUNIYELLAPPA MAJOR THE RESPONDENT NO.5 TO 7 ARE R/A. BELEKALLI VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK-560079 - 3 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 7(a) SRI. ASHOK S/O MUNIYALLAPPA AGED ABOUT 54 YEARS, 7(b) SRI. YALLAPPA S/O MUNIYALLAPPA AGED ABOUT 46 YEARS, 7(c) SRI. RAMAPPA S/O MUNIYALLAPPA AGED ABOUT 44 YEARS, 7(d) SRI. CHANDRA M S/O MUNIYALLAPPA AGED ABOUT 41 YEARS, RESPONDENT NO.7(a) TO (d) ARE R/AT NO.100-1, BILEKAHALLI VILLAGE, PATEL HOUSE ROAD, BENGALURU - 560 076. RESPONDENT NO.7 DIED ON 13.02.2017 AND LRS ARE BROUGHT ON RECORD ON 19.04.2024. …RESPONDENTS (BY SRI. CHETHAN GOWDA L., ADVOCATE FOR R1; R2, R3 & R4 SERVED & UNREPRESENTED; SRI. D.C.DEEPAK, ADVOCATE FOR R5 & R6, R7(a) TO (d) ) THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED:30.10.2015 PASSED IN RA.NO.139/2011 ON THE FILE OF THE IIIRD ADDL. DITRICT & SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, PARTLY ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:16.12.2010 PASSED IN OS.NO.898/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., ANEKAL. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 CORAM: HON'BLE MR JUSTICE K.NATARAJAN ORAL JUDGMENT This second appeal is filed by the unsuccessful Plaintiffs No.1 and 2, under Section 100 of the CPC, for setting aside the judgments of dismissal of their suit filed by them for partition and separate possession of 1/3rd share, out of half share in the 'A' and 'B' schedule property in OS No. 898/2006 (Old O.S.No.1228/2004) passed by Senior Civil Judge and JMFC at Anekal, which came to be dismissed by the Trial Court and the also upheld by the First Appellate Court in R.A.No.139/2011. 2. Heard arguments of learned counsel for appellants and learned counsel for the respondents. 3. The appellants were the plaintiffs before the Trial Court, while the respondents were the defendants before the Trial Court. The ranks of the parties are retained for the sake convenience of the parties. 4. The case of the plaintiffs before the Trial Court in nutshell is that the 'A' scheduled property belonged to their ancestor, one Muniswamappa prepositor, his wife - 5 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 Smt. Thomakka who was deceased and had five children namely (1) Muniyellappa @ Paredappa, (2) Gullamma, (3) Gangamma (both are daughters married prior to 1956) (4)ChikkaBiddappa (father of plaintiff Nos.1 and 2 herein) and (5)Nyathappa said to be died issue less, his wife also pre- deceased, prior to 1963. These suit scheduled properties said to be ancestral property of the family and it was issued in the name of the senior uncle of the plaintiff i.e., Muniyellappa @ Paredappa and for the family necessities, the senior uncle and ChikkaBiddappa (wrongly referred as it was sold by the defendant No.1.) sold to one Sanjeevappa on 16.05.1963 by registered sale deed. Though it was registered sale deed, but it was only nominal sale deed with a condition to repurchase the same. Therefore, on 27.10.1966, the said property was repurchased or reconveyed from Sanjeevappa which was marked to the name of senior uncle Muniyellappa @ Paredappa which is a joint family property and subsequently, defendant No.1 said to be sold the property to the defendant Nos.5 to 7 (respondent Nos.5 to 7) on 15.05.1974. The plaintiffs continued in joint possession without the knowledge of the sale deed executed in 1974. In the year 2004, when the defendant - 6 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 was trying to interfere, at that time they came to know about the sale deed. Hence, suit came to be filed for partition and separate possession contending that the father of the plaintiffs will get half share and senior uncle Muniyellappa @ Paredappa will get half share. Out of that, the plaintiffs Nos.1 and 2 and defendant No.1 are the children entitled for 1/3rd share, out of half share to be fallen to the share of plaintiffs and hence prayed for granting decree. 5. The defendant No.1 appeared and not contested the matter. The defendant Nos.2 to 4 said to be children of Muniyellappa @ Paredappa appeared and filed written statement stating that they also got share in the schedule property. Whereas the defendant Nos.5 to 7 who are the purchaser of the property from the defendant No.1 filed written statement contending that though the property belongs to Joint Family property, it was sold by both brothers Muniyellappa @ Paredappa and ChikkaBiddappa to one Sanjeevappa on 16.05.1963 for fullfilling family necessities. Subsequently, defendant No.1, purchased the property from one Sanjeevappa on 27.10.1966 vide sale deed it is self acquired property of - 7 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 Muniswamy (son of Chikkabiddappa). Therefore, he has got right to sell. After purchase, the revenue record stands in the name of Muniswamy son of ChikkaBiddappa and on 15.05.1974 the said property was sold to defendant Nos.5 to 7, thereby they become the owners and the revenue records were mutated in their names and they are in continuous possession and enjoyment of the property and there is inordinate delay in challenging the sale deed and seeking partition. Therefore, it is also contended that the suit scheduled property is not joint family property and hence prayed for dismissing the suit. 6. Based upon the pleadings, the trial court framed the following issues, 1. Whether the plaintiffs prove that the suit schedule properties Hindu undivided joint family properties of plaintiffs and defendant Nos. 1 to 4 and the plaintiffs are entitled to 2/3rd share in the suit schedule properties? 2. Whether the plaintiffs prove that the alienation made by the 1st defendant under registered sale deeds dt. 15.5.1974 in respect of suit A and 'B' schedule properties in favour - 8 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 of D5 to 7 are not binding on the plaintiffs 2/3rd share in the suit schedule properties? 3. Whether the defendant No.2 to 4 prove that they are entitled to ½ share in the suit schedule properties and the sale deeds dated 15-4-1974 executed in favour of defendant no.5 to 7 in respect of suit 'A' and 'B' schedule properties are also not binding on them? 4. Whether the defendant no. 5 to 7 prove that they are the bona fide purchasers of suit 'A' and 'B' schedule properties as contended by them in their written statement? 5. Whether the defendant no.5 to 7 prove that the suit of the plaintiffs is barred by limitation? 6. Whether the defendant no.5 to 7 prove that even if there were to be any defect in their application of suit 'A' and 'B' schedule properties, they have perfected their titles over the said properties by land, continuous and uninterrupted possession of the same? 7. Whether the plaintiffs and defendant no.2 to 4 are entitled to the relief of partition - 9 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 and separate possession of their alleged shares in suit properties as claimed by them? 8. What order or decree? 7. On behalf of the plaintiff, plaintiff No.1 himself examined as PW1 and got marked 27 documents and on behalf of defendant Nos.5 to 7, GPA holder was examined as DW1. They got marked 48 documents. After hearing the arguments, the trial court answered issue Nos.1 to 3 in the negative against plaintiff and issue Nos.4 to 6 in favour of defendants and issue No.7 in the negative and finally dismissed the suit vide judgment dated 16.12.2010. Being aggrieved by the same, the plaintiff preferred first appeal, before the District and Sessions Judge, Bengaluru Rural, Anekal, by filing RA.No.139/2011, which also came to be dismissed. Hence they are before this court. 8. Learned counsel for the appellants has contended that both the courts below committed error in dismissing the suit. The suit schedule property is the ancestral property. The sale deed executed in favour of the Sanjeevappa, is only nominal - 10 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 sale deed with a condition to reconvey the same. Accordingly, it was reconveyed in the year 1966. 9. The First Appellate Court had allowed the appeal in part, by granting the share in 'C' scheduled property and as regards to 'A' and 'B' schedule property, the appeal came to be dismissed. Hence, the appellants are before this court. 10. Learned counsel for the appellants contended that both the courts below, committed error in dismissing the suit. Even the First Appellate Court considered the 'C' schedule property is a joint family property, but failed to consider that 'A' and 'B' schedule property is also joint family property. Therefore, the judgment of the First Appellate Court requires to be reversed in this appeal. It is also contended that the properties are jointly in possession of the family of the plaintiffs and defendant Nos.1 to 4 and the said aspect is not considered before the courts below. Hence, prayed for allowing the appeal. 11. Per contra, learned counsel for the defendants contended that the very PW.1/plaintiff No.1 himself admitted in - 11 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 the cross examination that though the schedule 'A' and 'B 'properties were sold to Sanjeevappa in the year 1963, but the same was purchased by the defendant No.1 who is brother of plaintiff. The sale deed was not reconveyed in favour of Muniyellappa @ Paredappa or in the name of the father of the plaintiff ChikkaBiddappa but Muniswamy S/o Chikka Biddappa purchased the schedule property in 1966, thereby he became the owner, acquired the properties and therefore the revenue records were transferred in his name. Later in 1974, he has sold the property to defendant Nos.5 to 7 and they are in the possession and all the records were standing in their name. As there were no records to show that after 1953 or 1966, the property continued in the name of the plaintiff's father or senior uncle Muniyellappa @ Paredappa. Therefore, the contention of the learned counsel for the appellants shall not be acceptable and schedule property is not joint family properties and it is self acquired by the defendant No.1 and he has sold the same. Even otherwise, sale deed of 1966 is in the name of defendant No.1 and it was sold in the year 1974. The suit came to be filed in the year 2004, after 30 years. Therefore, the suit is barred by law. Hence, prayed for dismissing the same. - 12 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 12. Having heard the arguments perused the records, on perusal of the same, it is not in dispute that the Propositus one Muniswamy who is having 5 children 1) Muniyellappa @ Paredappa, (2) Gullamma, (3) Gangamma (both are daughters married prior to 1956) (4) ChikkaBiddappa (father of plaintiff Nos.1 and 2 herein) and (5) Nyathappa. The Nyathappa died issue less. His wife also was pre-deceased. Hence, only two male children Muniyellappa @ Paredappa, ChikkaBiddappa are the only two sons, who are the legal heirs of Muniswamy. However, these two sons of Muniswamy sold the 'A' and 'B' properties to one Sanjeevappa on 16.05.1963 for the family, necessities. Though the learned counsel for the appellants submits this is only a nominal sale deed and subsequently it was reconveyed by Sanjeevappa in the name of Muniyellappa @ Paredappa and the same was purchased out of the family nucleus or joint family funds. But on perusal of the records, especially as per the sale deed dated 27.10.1966 which reveals the suit schedule property was not reconveyed to Muniyellappa @ Paredappa. In fact it was purchased by the defendant No.1 who is none other than the brother of the plaintiff Nos.1 and 2. - 13 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 This is the registered sale deed dated 27.10.1966. Nowhere it is stated that, it is purchased by Muniswamy, on behalf of the joint family. If at all it is joint family property or the sale deed is reconveyed by Sanjeevappa, it could have reconveyed in the name of either Muniyellappa @ Paredappa or ChikkaBiddappa, but it is not registered in their names, but it was purchased by defendant No.1 in the year 1966. All the revenue records were mutated in the name of defendant No.1, till 1974, thereafter in 1974, the defendant No.1/Muniswamy son of ChikkaBiddappa, who is none other than the brother of the plaintiff Nos.1 and 2 sold the property to defendant Nos.5 to 7 on 15.5.1974. Thereafter, all the revenue records stood in the name of the purchasers/defendant Nos.5 to 7 till 2004, even till today after passing the judgment. The only contention of the plaintiffs is that it is joint family property, the Trial Court, as well as First Appellate Court has considered the evidence on record, especially admission given by PW.1, the first plaintiff himself, that the property was purchased by the Muniswamy son of ChikkaBiddappa. Thereafter, he has sold the property to defendant Nos.5 to 7. Nowhere it is mentioned in the sale deed at Ex.P.3, that it is reconveyed to the family of the plaintiffs - 14 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 and the senior uncle. Once the property was purchased in the name of defendant No.1, who is none other than brother of plaintiff Nos.1 and 2, it was not questioned till 1974, by any of the parties. Even in the revenue records, the names of either ChikkaBiddappa, the father of plaintiff, or senior uncle Muniyellappa @ Paredappa, name was not mentioned, after purchase of the same by Muniswamy in the year 1966. Whereas, once the property was purchased by Muniswamy in his individual capacity, it becomes self acquired property of defendant No.1/Muniswamy. Therefore, he can sell the same to any third party. Accordingly, he has sold it in the year 1974 to the defendant Nos.5 to 7. The sale deed was not challenged by the parties even till 2004 and there are no documents produced by them to show they are in joint possession and they will be cultivating the same in order to show there are no Revenue records for the purpose of cultivation in Column no.9, the names of either plaintiff's family or Muniyellappa @ Paredappa, names were mentioned after 1966 or 1963, to show it is joint family property. Therefore, considering the evidence on record, the trial court rightly held that the schedule property 'A' and 'B' were sold which was joint family property, - 15 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 but it was self acquired property of defendant No.1 and there was inordinate delay of 30 years in challenging the same, even the plaintiff did not challenge the sale deed of Sanjeevappa, which was sold on 16.05.1963, by the Muniyellappa @ Paredappa, and ChikkaBiddappa for family necessities. Thereafter, in 1966, the defendant No.1 had purchased the same, this sale deed also was not challenged. In 1974 defendant Nos.5 to 7 purchased the property and the suit was filed only after 30 years, which is utterly barred by law. It cannot be said that they were not aware about these 3 sale deeds executed between 1963 to 1974 more than 10 years. They waited for 30 years for filing the suit, only under the guise that it was family nucleus. They continue in possession and it is reconveyed to the plaintiff's family, which is not correct. Therefore, the trial court dismissed the suit of the plaintiff. 13. However, the First Appellate Court has considered the 'C' schedule property which was not alienated by the either defendant No.1 in favour of third party and there is no reference in the plaint that 'C' scheduled property was retained or reconveyed in their name. Even Sanjeevappa was not made as party in the suit. Such being the case, the First Appellate - 16 - NC: 2025:KHC:7454 RSA No. 1994 of 2015 Court granted 1/3rd share, out of half share in the 'C' schedule property. The respondent Nos.5 to 7 not concerned about the 'C' schedule property, if at all 'C' Schedule property share was granted to the plaintiff, it is to Sanjeevappa to challenge the same, but not the respondent Nos.5 to 7. Therefore, considering the same, the First Appellate Court rightly held that the suit is utterly barred by law. It is self acquired property of defendant No.1. Therefore, in my opinion there is no substantial question of law, in order to admit the appeal or hearing the matter. Hence, appeal is devoid of merits and requires to be dismissed. Accordingly, this appeal is hereby dismissed. Sd/- (K.NATARAJAN) JUDGE AKV List No.: 1 Sl No.: 50 CT:SK