IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 560 OF 2016 (DEC) Between:
MANJUNATHA SON OF LATE S. NANJAPPA AGED ABOUT 62 YEARS RESIDING AT NO.1331 MANDIMOHALLA, BNS STREET 4TH CROSS, MYSURU – 570 024.
... APPELLANT (BY SRI.M.T. JAGAN MOHAN., ADVOCATE ) And:
1. R. SATHYANARAYANA SON OF LATE D. RAMU AGED ABOUT 56 YEARS RESIDING AT NO.1671 KABIR ROAD LASKAR MOHALLA MYSORE – 570 024.
2. SUNDRESH SON OF LATE VISHWANATH AGED ABOUT 50 YEARS RESIDING AT NO.324 KAMAL TAILORING HOUSE K. T. STREET, MYSORE -570024.
3. MANGALA GOWRAMMA WIFE OF S. N. MURTHY AGED ABOUT 70 YEARS RESIDING AT NO.164 EWS, 3RD STAGE KUVEMPUNAGAR MYSORE – 570 024.
4. N. RAMAKRISHNA SON OF LATE NANJAPPA AGED ABOUT 64 YEARS RESIDING AT NO.131 E&F, BLOCK VISHVAGURU MARGA APPELLATE COURT RAMAKRIRHNAGARA, MYSORE -23.
5. MUDDU KUMAR WIFE OF H. S. NAGARAJU AGED ABOUT 60 YEARS RESIDING AT NO.418 D. D. BLOCK HUDCO I STAGE BANNIMANTAPA MYSORE – 570 024.
6 . CHANCHALA @ MUDDU MAHALAKSHMI WIFE OF NINGA SHETTY AGED ABOUT 55 YEARS RESIDING AT NO.26/71 16TH CROSS, 6TH MAIN LAKKASANDRA BANGALORE - 560 027.
7. PADMAVATHY WIFE OF THIMMA SHANKARAPPA AGED ABOUT 56 YEARS RESIDING AT NO.24 1ST CROSS, PANKAJA NILAYA CHIRST SCHOOL ROAD BHARATHI LAYOUT S G PALYA, C. R. C POST BANGALORE - 560 029.
... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.12.2015 PASSED IN R.A. NO. 183/2014 ON THE FILE OF THE II ADDL. DISTIRCT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMED THE JUDGMENT AND DECREE DATED 05.09.2013 PASSED IN OS. NO. 602/2010 ON THE FILE THE IV ADDL. I CIVIL JUDGE & JMFC., MYSORE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant and perused the judgments of the Courts below as well as the lower court records.
2. This appeal is filed by the plaintiff No.2 in OS No.602/2010 on the file of the IV Additional Civil Judge, Mysuru (for short, ‘the civil Court’). The appellant, along with the other plaintiffs viz. the respondent Nos. 4 to 7, has filed this suit in O.S.No.602/2010 for declaration of title to the two immovable properties described in the plaint schedule viz., the residential properties bearing Nos.325 and 326 (new Nos.M.103 and M.104) -suit item No. 1 and Nos.324 and 324/1 (New Nos.M.12/1 and M.12/2) - suit item No. 2 of Kalammanagudi Beedi, Mandi Mohalla, near Dasprakash Hotel, K.T. Street, Mysuru, and for cancellation of the Sale Deed dated 18.7.1956 executed by his father, Sri Nanjappa in favour of Sri D.Ramu. The appellant, and the other plaintiffs, contended that Sri Nanjappa was given to vices and was heavily indebted to late Sri D.Ramu. The respondent Nos.1 to 3, the legal representatives of the purchaser, Sri. D Ramu, compelled his father to execute the Sale Deed conveying the suit schedule properties. This Sale Deed was executed without the consent of either the plaintiffs or their mother, Smt.Sannamma @ Rajamma. The appellant and the respondent Nos. 4 to 7 came to know about alienation about 2 to 3 months prior to the date of the suit. As such, the appellant and the other plaintiffs are entitled to avoid the Sale Deed.
3. The respondent Nos. 1 and 2 resisted the suit.
In fact, the respondent No. 1 filed his written statement and the Respondent No. 2 filed a memo adopting the written statement filed by the respondent No.1. The respondent No.3, though served did not file any written statement. The respondent No.1 asserted that Sri Nanjappa transferred only the properties bearing Nos.325 and 326 - suit item No. 1 - way back in the year 1956 under the Sale Deed dated 18.7.1956 in favour of late D.Ramu. The respondent No.1 continued in possession of these properties after the demise of his father. Late D.Ramu purchased the suit item No.2 property in a Court auction on 10.6.1966. The Court auction was conducted pursuant to the orders of the First Munsiff Court, Mysuru, in Execution No.905/1965. Shri Nanjappa had no title to this property and his father late D Ramu did not purchase this property from Sri Nanjappa. The respondent Nos. 2 and 3 are strangers to the family and they do not have any interest in either of the suit schedule properties, and the appellant and the respondent Nos. 4 to 7 also cannot claim any interest in the suit schedule properties.
4. The civil Court framed as many as 7 Issues including the Issues regarding, whether the plaintiffs (including the appellant and the respondent Nos.4 to 7) are able to prove that they are the owners of the suit schedule properties and that the Sale Deed dated 18.7.1956 executed by their father is null and void, and whether the suit is barred by limitation. The appellant and these respondents examined three witnesses on their behalf as PW.1 to PW.3 and marked different exhibits as Exs.P1 to P7. The appellant examined himself as DW.1 and marked Exs.D.1 to D.25.
5. The civil Court, on appreciation of the evidence on record, has specifically concluded that the appellant and the respondent Nos.4 to 7 are not able to establish that their father was given to vices and because he was given to such vices, he executed Sale Deed for the suit schedule Item No.1 property in favour of Sri D. Ramu. The civil Court has further concluded that the evidence of PW.2 and PW.3 does not enure to the advantage of the appellant because these witnesses have stated that they have no personal knowledge about late Nanjappa’s vices or about the transfer of the properties by him. The civil Court has also, on appreciation of the evidence on record, concluded that the respondent No. 1 is able to demonstrate his title to the suit item No.2 property based on the documents executed in favour of his father pursuant to the Court auction on 10.6.1966, and the appellants and respondent No. 4 to 7 have not been able to establish any title in this property in favour of Sri. Nanajappa.
6. Insofar as the question of limitation, the trial Court has concluded that the suit is barred by limitation and in arriving at this conclusion, the civil Court has referred to different decisions. The civil court has also referred to the decision of the Hon’ble Supreme Court in T.Arivandandam vs. T. V. Satyapal and another, (1977) 4 SCC 467), and concluded that the proposition enunciated in this decision would aptly apply to the present case.
7. The appellate Court has formulated the following points for determination:
1. Whether the trial Court was justified in holding that the suit of the plaintiff/s was barred by limitation.
2. Whether the plaintiffs were competent to challenge the sale deed executed by their father on 18.07.1956.
3. Whether the impugned judgment and decree of the trial Court calls for interference by this Court.
4. What order.
8. The appellate Court has considered both the point Nos.1 and 2 simultaneously. The appellate Court has concluded that the appellant has premised his claim on the assertion that his father was the absolute owner of the suit schedule properties, and if he has premised his claim on such assertion, he cannot challenge the sale by his father on the ground that he sold the suit schedule properties without legal necessity. The concept of challenge to the sale by the absolute owner of the properties on the ground that there was no legal necessity is alien to law. Insofar as the question of limitation, the appellate Court has concluded that even if it could be said that the appellant could challenge the Sale Deed executed by his father when he was minor, the appellant had to file the necessary suit within three years from the date he attained majority, but the appellant has filed the suit much beyond the time so reckoned.
9. The reasoning by the Courts below, more specifically the appellate Court that the sale by the absolute owner of the suit schedule properties cannot be questioned by his legal representatives on the ground that there was no legal necessity, is unexceptional in the facts and circumstances of the case and does not call for any interference. In fact, the Courts below have rightly appreciated the ambivalence in the pleadings by the appellant and the respondent Nos.4 to 7. They contended that their father sold the suit schedule properties under the Sale Deed dated 18.7.1956, but the evidence on record shows that one of the properties viz., suit item No.1 was owned by the father, Sri Nanjappa and transferred under the Sale Deed dated 30.7.1956. Though they contended that suit item No.2 properties were also transferred by their father, Sri Nanjappa, they have not been able to place any evidence on record in this regard. In fact, the evidence on record is that this property was purchased by the respondents’ father in a court auction. The ambivalence in their case also establishes that the suit claim is vexatious and the Courts below have rightly appreciated the same.
10. The learned counsel for the appellant contends that the sale is by the father, Sri. Nanjappa and therefore, the limitation for filing the suit impugning the sale by the father would be under Article 109 of the Limitation Act, 1963. The appellant has specifically contended that he came to know about the same after institution of the suit. However, the Courts below have not considered the question of limitation in the light of the aforesaid assertion and the applicable provisions of the Limitation Act,1963. The question of limitation need not detain this Court in this second appeal because the Courts below, on appreciation of the evidence on record, have concluded that the appellant/ respondent Nos.4 to 7 cannot impugn the Sale Deed for the reasons discussed above. As such, no substantial question of law arises in this appeal and the appeal is accordingly dismissed.
Sd/- Judge SA Ct:sr