IN THE HIGH COURT OP KARNATAKA CIRIJIT BENCH AT DHARWAD DATED THIS THE 23 DAY OF’ MAY, 201 1 BEF’( )RE THE HUN’BLE MR .JLSTICE K GU\ l\DRAiUL 013 2001 BETWEE 1 Gulappa. S 0 Huchchappa Angarli Age 40. 0cc Agriculture. R/o Maganur. Tq Hungund. 2 Basavaraj Andaneppa I tagi. Age 40, occ’ Agriculture R/o Maganur, Tq Hungund APPELLANTS (By Sri. Basax araj Cl Godachi Ad AN D: 1. Sm. kardbasa\\a. W/o Pakirappa a Mudkappa likal, Age: , 0cc: Agri and House hid work. R/o Amblikoppa. Tq. Hunagund 2. Sangappa S/o Pakccrappa a Mudl\appa [ikal. Agc major. occ smclcnt. R o Amhhkoppo Tq. Hunagund. 3. Pakirapa a Mudi\ appa S/o Sangappa Ilkal, Age major, occ: agriculture R/o Maganur, Tq. Hungund 4. Yallappa. S/o Sangappa Niruggi. Age major. occ: agriculturc. R/o Maganur. Tq. Hungund. 5. Smt. Mallavva, W/ o Pundalikappa, N iruggi. Age malor. oce: household work. R/o Maganur, Tq. Hungund. 6. Gurabasavva Godadavva 1-liremath. Age major, oce: agriculture R/ 0 Maganur, Tq. hunguncl. REf sporìderits. (By Sri. .Jagadish Patil, Adv. for Ri and R2. R3, R4 and Rd Sd. PS notice d/w) This PEA is filed under Section 96 and CPC against the judgment and decree dated passed in C).S.No.240/98 on the file of the .Judge(Sr.Dn)1, Ba alkot, decreeing the suit for separate possession. This PEA coming on for final hearing Court delivered the following: JUDGMENT o 41 P 1 of 13/09/2001 I Addi. Civil partition and this da\. the Defendants 4 and 5 in O.S. No.240/98 on the file of the I Additional Civil Judge(Senior Division), Bagalkot, are the appellants in this appeal under Section 96 of the Code of Civil Procedure. 2. Parties will be referred according to their status found in the Court below for convenience. 4a 3. The suit is filed by the plaintiffs seeking for a declaration of their 8/27th share. Further declaration that the alienation made by defendant No.1 in favour of defendant No.2 and defendant Nos.2 and 3 in favour of defendant Nos.4 and 5 are not binding upon the plaintiffs and also for such other reliefs. 4. Case of the plaintiffs is that one Sangappa had 3 children namely Fakeerappa/ defendant No.1, YaDappa/defendant No.2 and Mallawwa/defendant No.3. Fakeerappa is married to Karabasavva-plaintiff No.1 and Plaintiff No.2 is the son of defendant No.1 and plaintiff No.1. It is further pleaded by the plaintiffs that plaintiff No.1’s marriage has taken place 29-30 years back with defendant No.1. After the marriage, plaintiff No.1 stayed in the house of defendant No.1 and carried on the marital life for some weeks. Thereafter, defendant Nos. I to 3 started ill-treating plaintiff No.1, so she went to her brother’s house at Ambalikopp village, Hungund taluka. There she has given birth to plaintiff No.2. While so, defendant No.1 has 4. executed a bogus sale deed in favour of defendant No.2 in the year 1976. It is behind the back of the plaintiffs without consent of the plaintiffs. So it is not binding on the plaintiffs. So the transactions by defendant No.1 in favour of defendant No.2 and defendant Nos.3, defendant Nos.4 and 5 is not binding. So pray for decreeing the suit. 5. Defendant No.4 has filed written statement. In the written statement it is contended, the contention of the plaintiffs that the sale deed executed by defendant Nos. 1 and 2 in favour of defendant Nos.2 and 3 in the year 1976 is a bogus, is false and the plaintiffs are called upon to prove the same. It is also contended, the property is sold for consideration and defendant No.4 has purchased the property for consideration from defendants 2, 3. The relevant revenue records stood in the name of the vendors. It is further contended that defendant No.1 has invested money, improved the property, the defendant is the bonafide purchaser of the property. So pray for dismissal of the suit. 4— 5 6. Defendant No.5 also files a similar written statement. 5th defendant has also filed the written statement with similar contentions. 7. Defendants I and 2 have not contested the proceeding. The learned trial Judge has framed the issues. Permitted the parties to lead evidence. First plaintiff examined herself as PW-1. Through her Exs.P-I to P-10 are marked. Ex. P-I is the certified copy of the sale deed dated 20/04/1999, the remaining Exs.P2 to P-10 are the revenue records. Ex.P- 11 is the certified copy of sale deed dated 25.2.1976. 8. The defendants have examined DW. I to DW.3. Exs.D-l to D-9 are marked. 9. The learned trial Judge has answered the following issues with the following reasons: ISSUES: I. Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants No.1 to 3? p 2. Whether the plaintiffs prove that the defendant. 1 to 3 ill-treated the plaintiff No.1? 3. Whether the plaintiffs prove that the defendant. I is addicted to bad vices like drinking, gambling etc? 4. Whether the plaintiffs further prove that the defendant. 1 has executed a bogus sale deed in favour of defcndant.2 in the year 1976 without the consent of the plaintiffs? 5. Whether the plaintiffs prove that the alienation made by the defendant. 1 in favour of defendant.4 and 5 is not binding on the shares of the plaintiffs? 6. Whether the plaintiffs prove that they have got 8/ 27111 share in the suit schedule properties? 7. Whether the defendants 4 and 5 prove that they are the bonalide purchasers of the portions of the suit land? 8. Whether the defendants 4 and 5 prove that they have invested more than Rs.20,000/- each for improvement of the land purchased? 9. Whether the suit is not maintainable? 10. Whether the plaintiffs are entitled for the reliefs claimed? 11. What order or decree? Findings on issues: I. In the affirmative, 2. In the affirmative, 3. In the negative. q 4. In the affirmative 5. in the affirmative 6. In the affirmative, 7. In the negative, 8. In the negative, 9. In the negative, 10. In the affirmative 11. As per final order. 10. The learned trial Judge has believed the case of the plaintiffs that the plaintiffs have right, title and interest over the suit schedule property, decreed the suit. 11. Learned advocate for the defendants 4 and 5 contend that in the facts of the case, the first sale deed of the year 1976, is challenged in the year 1998 i.e after 22 years. It is not the case of the plaintiffs that they are still in possession of the property, suit is filed as if they are in possession of the property, entry in the revenue records and the evidence adduced would show that it is the purchasers who are in possession of the property. So the suit for declaration without seeking for possession is not maintainable under Section 34 of the Specific Relief Act. So decreeing of the suit by the learned trial Judge is not proper. So pray for allowing the appeal. A 12. In reply, it is contended, suit is a simple suit for partition, the plaintiff No.2 has right in the property, the sale by defendant No.1 without recognizing share of the plaintiff No.2, is bad in law. Document of sale by Defendant No.1 needs no challenge, it is only the right of plaintiff No.2 is claimed. So the approach of the learned thai Judge is proper, so seek for dismissal of the appcal. 13. In the light of the above, the blood relationship between the parties is not disputed, the point that arise for consideration is: Whether the suit for declaration of the share of the plaintiffs without seeking for possession is maintainable? 14. Section 34 of the Specific Relief Act read as follows: “34. Discretion of Court as to declaration of status or right: - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make 9 therein a declaration that he is So entitled. and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any sue h declaration where the plaintiff, being able to seek further relief than a mere declaration of title. omits to do so.” The proviso to the Section clarify that the suit for declaration without seeking for possession. ii the possession ought to have been sought for, is not maintainable. In the facts of the case, admittedly, the suit is not filed seeking for possession but is filed for declaration, it is contrary to the provisions of the Specific Relief Act. This is not considered b the learned trial Judge. So the finding of the learned trial Judge is set aside. The appeal is allowed. The suit is dismissed. In the circumstances, parties to bear their own costs. sat” kmv