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HC-KAR NC: 2026:KHC:585 RFA No. 330 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 330 OF 2011 (DEC/INJ)
BETWEEN:
SRI. CHINNAPPA S/O SANJEEVAPPA AGED ABOUT 50 YEARS
SRI. VENKATESH S/O SANJEEVAPPA AGED ABOUT 48 YEARS
SRI. SRINIVAS S/O SANJEEVAPPA AGED ABOUT 45 YEARS
ALL ARE RESIDING AT KUTTIYAPPA GARDEN DEVARACHIKKANAHALLI ROAD BILEKAHALLI, BANGALORE-76. …APPELLANTS
(BY SMT. S.K. NAGARATHNA, ADVOCATE)
AND:
SMT PENNERSELVI W/O S.P.GANDHI MAJOR NO.221, 12TH MAIN ROAD LAKKASANDRA, BANGALORE-20.
SRI. SANJEEVAPPA S/O LATE. THOTADA AYYAPPA
Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA
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2(A)
2(B)
2(C)
2(D)
2(E)
AGED ABOUT 75 YEARS RESIDING AT BILEKAHALLI KUTTIYAPPA GARDEN DEVARACHIKANAHALLI ROAD BANGALORE-10.
SMT. SHARADAMMA W/O LATE MUNISHAMAPPA AGED ABOUT 70 YEARS R/AT THARAGANAHALLI ANEKAL TALUK BANGALORE RURAL DISTRICT
SMT. RAJAMMA W/O KRISHNAPPA AGED ABOUT 65 YEARS R/AT BILEKAHALLI BEGUR HOBLI BENGALURU-560076.
SMT. AKKAMMA W/O LATE MUNIYAPPA AGED ABOUT 60 YEARS R/AT HUSKUR VILLAGE SARJAPURA HOBLI ANEKAL TALUK
SMT. BABY W/O RAJAPPA AGED ABOUT 50 YEARS R/AT MALUR, YESHWANTH HOBLI KOLAR DISTRICT
SMT. BHARATHI W/O KRISHNAPPA AGED ABOUT 45 YEARS R/AT HALASUR, LAKSHMIPURA
SMT. SUJATHA SUDHIR D/O SANJEEV MAJOR
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RESIDING AT NO. 359, 17TH "A" CROSS 26TH MAIN, 6TH PHASE, J.P NAGAR BANGALORE-78. …RESPONDENTS
(BY SMT. S.B. LAKSHMI, ADVOCATE FOR R2(A-E); R1 AND R3 ARE SERVED AND UNREPRESENTED)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.10.2010 PASSED IN O.S.6237/2003 ON THE FILE OF THE XXIV-ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FOR THE DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
The captioned appeal is by the unsuccessful plaintiffs assailing the judgment and decree rendered in O.S.No.6237/2003, wherein the plaintiffs suit seeking relief of declaration to declare the sale deeds executed by defendant No.2 in favour of defendant No.1 and by defendant No.1 in favour of defendant No.3 dated 16.02.1988, 22.07.1989 and 02.05.1991 in respect of schedule 'B' to 'D' properties are null and void and consequently, cancel these registered instruments as not
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binding on the plaintiffs and for consequential relief of injunction restraining the defendants from interfering with peaceful possession and enjoyment over the suit schedule property.
For the sake of brevity, the parties are referred to as per their rank before the trial Court.
The facts leading to the case are as under:
The plaintiffs, who are the children of defendant No.2, instituted the present suit calling in question the alienation made by their father/defendant No.2 in favour of defendant No.1. It is the specific case of the plaintiffs that the suit schedule property originally belonged to the propositus, Thotada Iyappa, who had five sons. Upon the death of Thotada Iyappa, disputes arose among the members of the family, culminating in the institution of a partition suit by the cousins of the plaintiffs against their father/defendant No.2 in O.S.No.5212/1987.
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The plaintiffs have averred that during the pendency of the said partition suit, and before the passing of a final decree therein, their father/defendant No.2, who was allegedly addicted to vices and was acting to the detriment of the joint family, proceeded to alienate portions of the suit schedule ‘A’ property, more particularly the properties described in Schedules ‘B’ to ‘D’, in favour of defendant No.1 under registered sale deed dated 16.02.1988. According to the plaintiffs, the said alienations were effected without any legal necessity or benefit to the joint family and were squarely hit by the pendency of the partition proceedings in O.S. No.5212/1987. 5. It is further the case of the plaintiffs that the suit schedule ‘A’ property is joint family ancestral property and that Schedules ‘B’ to ‘D’ form an integral and inseparable part thereof. The plaintiffs contend that defendant No.2 had no authority or competence to alienate the joint family properties, particularly during the
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subsistence of the partition suit, and that such alienations are not binding on their share. It is alleged that in the month of May 2003, the defendants attempted to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit schedule properties, which compelled the plaintiffs to institute the present suit in O.S. No.6237/2003 seeking appropriate reliefs and questioning the validity of the alienations made in favour of defendant No.1. 6. Upon service of summons, defendant No.1 entered appearance and filed a detailed written statement, stoutly denying all the averments made in the plaint. Defendant No.1 specifically contended that the suit, as framed, is not maintainable either in law or on facts. Placing reliance on the registered sale deed executed by defendant No.2, defendant No.1 asserted that she is in exclusive and lawful possession of the entire suit schedule property and that she has been paying the requisite taxes in respect thereof ever since the date of purchase.
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Defendant No.1 further disputed the plaintiffs’ contention that the suit schedule property is agricultural land and, on the contrary, asserted that the lands in question have been duly converted for non-agricultural purposes by the competent authority. It is also contended that pursuant to the decree passed in O.S.No.5212/1987, defendant No.2 was allotted a 1/5th share in the joint family properties and that it is out of the said share that defendant No.2 executed the sale deeds in favour of defendant No.1. On this premise, defendant No.1 claimed to be a bona fide purchaser for value without notice of any alleged infirmity. 8. Defendant No.1 further pleaded that the plaintiffs were fully aware of the alienations made by their father/defendant No.2 at the relevant point of time and, having remained silent for several years, are now estopped from questioning the same. It was contended that the suit is hopelessly barred by limitation and is also hit by the doctrine of acquiescence. Defendant No.1
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additionally asserted that even after the alienations, defendant No.2 had retained an extent measuring about 2000 square feet out of his 1/5th share and, therefore, the plaintiffs have no manner of right, title or interest in the properties conveyed to defendant No.1. On these grounds, defendant No.1 sought dismissal of the suit in its entirety. 9. On the basis of the rival pleadings, the Trial Court proceeded to frame the following issues: "1) Were sons of Thotada Iyyappa declared to be entitled to 1/5th share each in present suit property which was the subject matter in O.S.No.5212/1987 on the file of City Civil Court, Bangalore? 2) Did 2nd defendant sell present suit schedule property in favour of 1st defendant during the pendency of O.S.No.5212/87? 3) Was the present suit schedule property allotted to 2nd defendant's share at partition? 4) Can the sale deed executed by 2nd defendant in favour of 1st defendant and the sale deeds executed on 16-2-1988 and 22-7-1989 and 2-
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5-1991 in respect of schedule property be cancelled as not binding on the plaintiffs? 5) Are the plaintiffs entitled to seek injunction against defendants? 6) What decree or order? 7) Is the suit schedule property valued and the court fee paid is sufficient? 8) What decree or order?"
The Trial Court thereupon called upon the parties to adduce their respective oral and documentary evidence in support of their pleadings. Upon a careful appreciation of the entire evidence on record, both oral and documentary, and in particular taking cognizance of the testimony of PW.1, the Trial Court recorded a categorical finding that the plaintiffs had, in unequivocal terms, admitted that defendant No.2, after selling the suit schedule ‘A’ property, had invested the sale proceeds in the purchase of other immovable properties situated at Sarjapur. The said fact was evidenced by Ex.D-2.
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The Trial Court, upon a detailed consideration of Exs.D-3, D-5 and D-6, further held that defendant No.2 had indeed purchased the Sarjapur property and that this factual matrix stood admitted by the plaintiffs themselves. The Court also took note of the fact that the three sale deeds executed by defendant No.2 in respect of the suit schedule properties fetched a total sale consideration of Rs.43,000/-, whereas the consideration paid for the purchase of the Sarjapur property was Rs.40,000/-. In the light of this evidence, the Trial Court concluded that the proceeds derived from the alienation of the suit schedule ‘A’ property were substantially invested in the acquisition of the Sarjapur property, thereby negativing the contention of the plaintiffs that the sale was wasteful or without justification. 12. The Trial Court further adverted to the admissions elicited during the cross-examination of the plaintiffs and found that they had clearly and unequivocally admitted that the schedule ‘A’ property
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allotted to their father’s share in the partition proceedings was the self-acquired property of their grandfather. On this count also, the Trial Court was of the considered view that, in the absence of any cogent or reliable evidence to establish that defendant No.2 was addicted to vices or had alienated the property for immoral or illegal purposes, the plaintiffs had failed to make out any legally sustainable ground to invalidate the sale transactions. Consequently, the Trial Court dismissed the suit. 13. Aggrieved by the judgment and decree passed by the Trial Court, the unsuccessful plaintiffs have preferred the present appeal. 14. Heard the learned counsel appearing for the plaintiffs and perused the entire records. On consideration of the rival submissions and the material on record, the following points arise for consideration: 1) Whether the Trial Court was justified in dismissing the suit by recording a finding that
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the sale deeds executed by defendant No.2 in favour of defendant No.1 are binding on the plaintiffs, particularly in the light of the finding that the schedule ‘A’ property had fallen to the share of defendant No.2 in the partition effected in O.S. No.5212/1987? 2) What order?
Finding on Point No.1:
Before this Court adverts to the case on hand, this Court deems it fit to ascertain the conduct of the plaintiffs who have chosen to challenge the alienation made by the father/defendant No.2 by filing a suit in 2003 pertaining to alienations made in 1988. The prayer sought in the plaint would be relevant and significant to address the core controversy between the parties. This Court deems it fit to extract the prayer column in the plaint, which reads as under: "a) Declaring that the sale deeds executed by the second defendant in favour of the first defendant, in turn the first defendant executed sale deed in
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favour of third defendant on 16.2.88, 22.7.89 and 2.5.91 with respect to the B to D to the plaint schedules are null and void and consequently cancel the same by declaring that the sale deed are not binding on the plaintiffs; b) Judgment and decree of permanent injunction restrain the defendants, their agents or anybody claiming through them permanently from interfering with the peaceful possession, occupation and enjoyment of the A-schedule properties to the plaintiffs; c) And to grant such other relief/s that this Hon'ble court deems fit to grant in the facts and circumstances of the above suit by awarding cost throughout to meet the ends of justice."
This Court has bestowed its anxious consideration to the cross-examination of plaintiffs where several crucial admissions are elicited. This Court deems it fit to extract the relevant cross-examination, which reads as under: "Cross Examination by Sri VBS Advocate for the defendant No 1:-
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I studied up to X std. I completed my SSLC in the year 1976. I studied at MEW High School. I know Kannada language. I know little English Language. The plaintiff No.3 is working in Jigani and plaintiff No.2 is an agriculturist. Suit schedule property is the self acquired property of my grandfather. It is true to suggest that my paternal grandfather purchased the suit schedule property by self earned income. My grandfather had 5 children. There is misunderstanding between my father and his brothers. My two uncles are no more, their children are alive. I am not aware of your suggestion suggesting that my grandfather died in the year 1966- 67. We have not seen our grandfather. We have no other properties in the name of my father except suit schedule properties. It is false to suggest that my father is having other properties. It is true to suggest that my father is residing with me and also depending on me. It is true to suggest that all the relevant documents of the properties are in my possession. Sy. No.57/1 consists 1 acre 20 guntas. It is true to suggest that my father and my farther's brothers partitioned Sy. No. 57/1 between them. It is true to suggest that my uncles are in possession of their respective shares. I can say the boundaries of the share went to the share of my uncle Shamanna. Towards East: Muniyappa's property, West: Abayappa Layout, North: Private Layout, South: Private Layout. I can say the boundaries of my another uncle Muniyappa's property. Towards East: Muni Sanjeevappa's property, West: Shamanna's property, North: Private layout and South: Private Layout. I can
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say the boundaries another uncle Muni Sanjeevappa's Towards East: Defendant No.2 property, West: Muniyappa's property, North and south: Private Layout. I can say my father's share property boundaries East: Yellappa's property, West: Muni Sanjeevappa's property, North and south: Private Layout. It is true to suggest that all my uncles are in possession of their respective shares and they are paying taxes to the concerned authorities. It is false to suggest that some of them formed layout. Now a sketch is shown to me it is true to suggest that as per the said sketch my uncles and my father's divided Sy. No. 57/1. (Since the sketch is admitted by the witness it is marked as Ex.D1). It is true to suggest that as per Ex.P1 and Ex.P2 there is a physical division of the property, hence Ex.P1 suit did not be persuaded. It is true to suggest that as per Ex.D1 my father and uncles made entry in mutation register as per Ex.P5 and Ex.p6. There is no property is Puttenahalli in the name of my father. There is no property at Sarjapur in the name of my father. Now a Mutation Extract is shown to me. It is true to suggest that the said extract reveals that my father purchased the property in the year 1989. Witness Volunteers that the said property was purchased by the income of myself and my brothers. Since the witness admitted the entries of Mutation Extract. The said Mutation Extract is marked as Ex.D2. We purchased that property for Rs. 40000/-. We are in possession of the said sale deed. I can produce that sale deed. Myself nor my father are Income Tax Assessee, I am agriculturist in my
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occupation. I do not know how much money my father received in the sale transaction between the defendan- No.2 and defendant No.1. I enquired with my father Inspite of asking many times my father did not revealed how much money he received. It is false to suggest that my father need not reveal the actual sale consideration to me. It is true to suggest that the said sale transaction was concerned with only the heirs of Thotada Aiyappa because the said property was actually belongs to Thotada Aiyappa. It is false to suggest that grandson are not the legal heirs in the lifetime of my father. As per Ex.D2 we purchased the property measuring 3 acre 15 guntas. The said property is situated at Sarjapur. The distance between the suit schedule property and the properties which we purchased is about 20 kms. It true to suggest that there are big buildings around the suit schedule properties. It is true to suggest that the suit schedule property is not fit for the agricultural operations." (Emphasis Supplied)
On a conjoint reading of the prayer sought in the plaint and the categorical admissions elicited in the cross-examination of PW.1, this Court is of the considered view that the reliefs claimed in the present suit are wholly untenable. The admissions extracted supra clearly demonstrate that the plaintiffs, who are the children of
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defendant No.2, have unequivocally acknowledged that their father had exercised due care and prudence in dealing with the properties that fell to his share. The plaintiffs have further admitted that defendant No.2 had furnished proper explanations at the time of effecting change of khata. More importantly, the plaintiffs have conceded that the property allotted to their father in the partition proceedings was the self-acquired property of their grandfather, Thotada Iyappa. The plaintiffs have also admitted, with reference to Ex.D-2, that a property measuring 3 acres and 15 guntas situated at Sarjapur was purchased after the alienation of the schedule ‘A’ property. Though an attempt is made during oral evidence to suggest that the plaintiffs themselves contributed towards the sale consideration for the Sarjapur property, such a contention is conspicuously absent in the pleadings and, therefore, remains a bald and unsubstantiated assertion, which cannot be accepted.
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In the light of the aforesaid crucial admissions, this Court is of the clear opinion that the plaintiffs deserve to be non-suited on the ground of limitation. The alienations in question were effected by defendant No.2 under registered sale deeds dated 16.02.1988 and 22.07.1989, as evidenced by Exs.P-7 and P-8. The present suit, however, came to be instituted only in the year 2003, nearly fifteen years thereafter. Admittedly, the plaintiffs have not sought the relief of partition, but have confined themselves to challenging the alienations made by their father, coupled with a consequential relief of permanent injunction. The evidence adduced by defendant No.1 clearly establishes that possession was parted with in favour of the transferee as early as in the year 1988. In such circumstances, the relief of declaration sought by the plaintiffs is ex facie barred under Article 58 of the Limitation Act. Even the relief of partition, which the plaintiffs could have otherwise sought, stands barred under Article 109 of the Limitation Act. The deliberate
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omission on the part of the plaintiffs to include the Sarjapur property, which is admittedly purchased out of the sale proceeds, further fortifies the inference that the challenge to the alienations is a mere afterthought, unsupported by any serious or substantiated allegation that the transactions were detrimental to their interest. 19. The admissions made by the plaintiffs that the schedule ‘A’ property, which fell to the share of defendant No.2 in the partition proceedings, was the self-acquired property of their grandfather, strike at the very root of the plaintiffs’ case. Having acknowledged such a factual position, the plaintiffs could not have maintained a suit solely questioning the alienations made by their father, while consciously refraining from seeking partition of the properties subsequently acquired by him out of the sale proceeds. The selective challenge mounted by the plaintiffs, without assailing the entirety of the transactions and without seeking comprehensive reliefs, clearly disentitles them from any equitable or legal relief. Their
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own admissions unmistakably establish that defendant No.2 had absolute right, title and authority to deal with and alienate the property that had fallen to his share. Accordingly, Point No.1 is answered in the affirmative. Finding on Point No.2:
For the foregoing reasons, this Court proceeds to pass the following: ORDER
Appeal is devoid of merits and accordingly, dismissed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE
CA List No.: 1 Sl No.: 39