IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR R.F.A.NO.148 OF 2015 BETWEEN:
1. Smt. Nagarathna W/o Narasimhamurthy Aged about 39 years 2. Mr. Murali S/o K.Papaiah @ Papaiah Aged about 37 years 3. Smt. Manjula W/o Krishnamurthy Aged about 34 years 4. Mr. Shekhar S/o K.Papaiah @ Papaiah Aged about 30 years Appellants No.1 to 4 are R/at No.83, Kothihosahalli village Sahakara Nagara Post Yelahanka Hobli Bengaluru – 560 092 5. Smt. Chinnamma W/o Mr. Chikkamuniyappa D/o Late Kaiyappa and Smt. Poojamma Aged about 62 years R/at No.72, I Main Gowdanapalya Bengaluru – 560 092 …Appellants (By Sri Suresh D Deshpande, Advocate) AND:
1. Mr. K.N.Manjunatha S/o Mr. Nanjundappa Aged about 48 years 2. Mr. K.N.Vasanthappa S/o Nanjundappa Aged about 50 years Respondents No.1 and 2 are R/at No.2131, III Main D Block, Sahakaranagara Near BBMP Office Bengaluru – 560 092 3. Mr. K.Papaiah @ Papaiah S/o Kaiyappa Aged about 64 years 4. Mr. K.Gopal S/o K.Papaiah @ Papaiah Aged about 44 years 5. Mr. K.Suresha S/o K.Papaiah @ Papaiah Aged about 44 years Respondents No.3 to 5 are R/at No.83, Kothihosahalli village Sahakaranagara Post Yelahanka Hobli Bengaluru – 560 092 ... Respondents (By Sri Chethan B, Advocate for R1 & R2-Absent; R3 – R5 Served) This RFA is filed under Section 96 of CPC against the judgment and decree dated 05.11.2014 passed in O.S.No.7545/2013 on the file of the V Additional City Civil Judge, Bengaluru, dismissing the suit for partition and separate possession.
This appeal coming on for admission this day, the Court made the following:
ORDER Heard the appellants’ counsel at the time of admission. Plaintiff Nos.1 to 4 and defendant Nos.4 & 5 are children of defendant No.3. Plaintiff No.5 is the sister of defendant No.3.
2. The plaintiffs brought a suit for partition in respect of 12 guntas of land in Sy.No.3/5 of Kothihosahalli village, Bengaluru North Taluk. According to the plaintiffs, this property belonged to the joint family and it was the ancestral property. The plaintiffs demanded the defendant No.3 to effect partition. Their request was refused and therefore they filed the suit.
3. Defendant Nos.1 and 2 appeared before the Court and filed their written statement. But the trial Court did not take that written statement on record as they did not pay the cost imposed on them. Thereafter, the trial Court proceeded further and recorded the evidence of one witness PW-1 i.e., second plaintiff and marked Exs.P.1 to P.9. On scrutinizing the evidence the trial Court came to conclusion that the suit property had been sold by defendant Nos.3 to 5 in favour of defendant Nos.1 and 2 on 01.02.1997 itself. The trial Court is of the opinion that the plaintiffs had not made any allegation in the plaint that the suit property was not sold for legal necessity of the family. Defendant No.3 being the elder male member of the family, was also its kartha. Not only he, but also defendant Nos.4 and 5 joined defendant No.3 in execution of the sale deed in favour of defendant Nos.1 and 2. There is another observation that the RTCs marked as per Exs.P.2 to 7 disclose that there was a division in the family and therefore the theory of plaintiffs that there was no partition, was impossible to be accepted. The plaintiffs should have brought the suit within 12 years from the date of sale that took place in the year 1997. Giving these reasons, the trial Court came to conclusion that the plaintiffs were not entitled to seek partition.
4. Learned counsel for the appellants argues that the above findings of the trial Court are erroneous, that no inference can be drawn about the division in the family based on the revenue records, and in fact the plaintiffs have pleaded very much that the sale that took place in the year 1997 was not for legal necessity. The defendants’ written statement was also rejected. In view of these facts and circumstances, the trial Court should not have dismissed the suit.
5. After going through the findings given by the trial Court I am of the opinion that these findings are sustainable. Plaintiffs themselves have stated that defendant Nos.3 to 5 sold the property in favour of defendant Nos.1 and 2 in the year 1997. That being so, they should have assailed the sale deed within the period of limitation. Moreover when the property was sold long back, they cannot claim to be the coparceners to claim partition. Long before the Central amendment was brought to Section 6 of the Hindu Succession Act, the property had been sold through a registered sale deed. Therefore, the plaintiffs were debarred from seeking partition. Appeal is devoid of merits, it is dismissed.
KMV/-
Sd/- JUDGE