IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE $6 DAY OF AUGUST 2011 PRESENT THE HONBLE MR JUSTICE V.G.SABHAHIT AND THE HON’BLE MR JUSTICE B MANOHAR REGULAR FIRST APPEAL No. 1843/2006(PAR) Between: B.Venkatakrishnaiah S/o.Bapatla Bapa Rao Aged 71 years Railway Feeder Road Kovur. Ndllore District 524001 Andhra Pradesh. ... Appellant (By Sri.Shivaraj Hiremath. Adv.) And: 1 .B.Seetharamaiah Aged 65 years. 2.B.Chandrasckhar Rao Aged 63 years. 3.B.B.K.Sundar Rao Aged 57 years. 4.B.Venkatasathyanarayana Aged 48 years, Respondents 1 to 4 are sons of Bapatla Bapa Rao R/at Railway Feeder Road Ar- a. Kovur, Nellore District-52400 1 Andhra Pradesh. 5.Smt.B.Varalakshmi W/o.B.V.Narasimha Rao Aged 68 years Door No.7. Nageshwara Rao Road Opposite to Panagal Park T.Nagar, Madras- 17. 6.Smt.B.Manikvamma W/o.M.LKantha Rao Aged about 60 years Telecom Centre R/at Railway Feeder Road Kovur, Nellore District-524001 Andhra Pradesh. 7.Smt.P.Rama Dcvi W/o.P.V.Ramana Reddy Aged 45 years Kapu Street, Kovur Nellore District-52400 1 Andhra Pradesh. 8.Smt.B.Vijavalakshmi W/o.C.H.Prasada Rao Aged 50 years Accountant. Coramandal Fertilizers Opp. to Parade Grounds Secundcrabad-500003. 9.Smt.B.Kamalamma W/o.Bapatla Bapa Rao Aged 863 ears Railway Feeder Road Kovur, Nellore District-524001 Andhra Pradesh. Since dead, all her legal representatives Are also on record as Appellant and respondents I to 8. k 5 10.Mahaboob Basha S/o.Ibrahim Major, Door No.20/902 Balusnapet, Mulapet Nellore-52400 1. 11.B.Ramana Reddy 5/o.Chenchu Reddy Major, Door No.13/501 Kakarlavari Street Nellore-524001. 12.B.Balarama Reddy S/o.Narayana Reddy Major, Door No.13/548 Kakarlavari Street Neilore-52400 1. 13.Rami Reddv S/o.Narayana Reddy Door No.13/548 Kakarlavari Street Neilore-524001. 14.M.Krishna Reddv 5/o.Narayana Reddy Major, Door No.13/548 Kakarlavari Street Nellore-524001. 15.K.Narendranath Reddy S/o.K.V.Ramana Reddy Major, Kothakodur village Thotapalli Gudur (Mandal) Nellore —524001. 16.GaLi Venkata Rao Choudry S/o.Venkateswara Rao Major, Merchant 23/1150, Arvindnagar Nellore-524001. I- 4 I 7. Manthena Rajendra Prasad Varma S/o.M,Karthika Raju Major. Hindu Babireddv Apartments, Dargametta Nellore- 524001. ... Respondents (By Sri,Y.Lakshmikanth Reddv, Adv for RIO, R14 and R 15. Sri. P.M. Siddamallappa: R. Muniraju: Mvlaraiah Associates, Advs. for RI to R8, (Ri to R8 are Lrs of deceased R9. RI 1 served R12. R13. RiO and R17 Service held sufficient.) This RFA is filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 7-6-2006 passed in O.S.No.217/ 1998 on the file of the Additional City Civil Judge (Sr.Dn.). Bellarv, dismissing the suit for partition and separate possession. This appeal having been heard and reserved coming on for hearing this day, B.MANOHAR, J., delivered the following: JUDGMENT Appellant in this appeal is challenging the legalit\ and correctness of the judgment and decree dated 7-6-2006 macIc in O.S .No.217/1998 passed by the Additional Civil Judge (Sr. Dn.). Bellarv. wherein the suit filed by the appellant seeking for partition and separate possession of IO/541 share in the suit .v-. t properties was dismissed. Hence, he has preferred this appeal. 2. The appellant/plaintiff had filed a suit seeking partition and separate possession of 10/54th share in the plaint schedule properties by metes and bounds. In the plaint, it is contended that the plaintiff and defendants 1 to 4 are the sons, defendants 5 to 8 are daughters of deceased Bapatla Bapa Rao (herein after referred to as ‘B.B.Rao’) and defendant No.9 is the wife of B.B.Rao. The original propositus of the properties is one Bapatla Venkatakrishnaiah who is the father of the B.B.Rao, who died long ago, leaving behind his only son B.B.Rao. The family of the plaintiff and defendants 1 to 9 owned vast extent of agricultural lands and a house. On the death of Bapatla Venkatakrishnaiah, B.B.Rao inherited the said properties. On 2-10-1945, out of joint family nucleus the said B.B.Rao, along with Brahmanandam Lakshminarayana Rao, Ramabayamma Wife of Brahmananda Bapaiah Panthulu and others purchased lands bearing Sy.No.597/B and 601 totally k (1 measuring 290 acres. Subsequently. B.V.LNarayana Rao and others filed O.S.No.1 10/ 1964 on the file of the Civil Judge. Bellar) against Ramabayamma, B.B.Rao and others. seeking for partition and preliminary decree has been passed in the said suit. Thereafter, Misc.Case No.1/ 1Q70. in the final decree proceedings. the Commissioner was appointed and he divided the entire property in the said proceedings. B.B.Rao, i.e. father of the plaintiff and defendants I to 8 was allotted the suit schedule properties. Since then, B.B.Rao was in possession of the suit schedule properties as Kartha of the fa.miiv till his death on 14-3-1998. The suit item No.2 property is situated in Kovur, Neflore District, which is also joint family property. During the lifetime and after the death of B.B.Rao. plaintiff and defendants 1 to 9 have been in joint and constructive possession of the properties. 3. The plaintiff further averred that the father of the plaintiff and defendants 1 to 8 has sold the suit schedule properties on 4-11-1996 in favour of I’ 7 defendants 10 to 15. The plaintiff as well as defendants 1 to 9 have never consented for such sale and there is no necessity or requirement of the family to sell the said properties. Since, B.B.Rao had purchased the suit schedule properties out of the nucleus of the joint family properties, he has no right to alienate the suit schedule properties. Further no consideration was passed in such transaction. At the time of death, the father of the plaintiff and defendants I to 8 was aged about 80 years and he was not in a position to execute the sale deed. Hence, the defendants 10 to [5 will not get any right and valid title on the said transaction. Since the plaintiff is a permanent resident of Chennai, he is not aware of the sale of the properties. Further, no consent was obtained from the plaintiff to alienate the properties though he was a co-owner. Hence, he is entitled for 10/54th share in the suit schedule properties and filed the suit with the above prayer. 4. The defendants 1 to 4 and 6 to 9 appeared through their counsel and filed common written 4, SI statement. The 5th defendant remained exparte. In the written statement, they have admitted tile plaint averments and stated that defendants I to 4 will get 11/60 share and defendants 5 to 9 will get 1 /60t1 share in the suit schedule properties and sought for passing the decree. 5. The defendant 16 and 17 though appeared through their counsel, have not filed written statement. 6. Defendants 10 to 15 have appeared through a common counsel and filed separate written statements and the said written statements are identical with each other. In the written statement. they have admitted the relationship between the plaintiff and defendants I to 9 and admitted about O.S.No. 110/1964 and Misc.Case No.1/1970 and denied all other averments made in the plaint. They have contended that the defendants 10 to 15 are the bona Me purchasers of the suit schedule properties for the valuable sale consideration. Further, B.B.Rao who is the owner of the properties has 4’ C) alienated the property on 4-10-1996. neither plaintiff nor defendants I to 9 have any right, interest in respect of the suit schedule properties since they are the self- acquired properties of B.B.Rao, Further, the propositus i.e. Bapatla Venkatakrishnaiah was the resident of Guntur District. Andhra Pradesh State, he died long back and he has not left any property to his son B.B.Rao. B.B.Rao was brought up under the care and protection of a benevolent lady from Brahmanandam family by name Smt.Ramahayamma W/o. Sri.Bapaiah Panthulu of Bapatla of Nellore District. The p1aintiffs father served the Royal family of Late Sri. Brahmanandam Venkatalakshminarayana Rao, who owned vast extent of properties in Nellore District and surrounding area in Andhra Pradesh State. B.B.Rao has grown up under the patronage of late B.V .L. Naravana Rao of Brahmanandam family, ultimately he became the relative of said Brahmanandam family. In view of that on 2- 10- 1945, the father of the plaintiff along with Brahmanandam Lakshminarayana Rao, Ramahayamm a and others jointly purchased the lands bearing 10 Sy.No.597/B and 601 in all measuring 317.25 acres in Bellary village from one Ammaranimal Mudaliyar for a valuable sale consideration of Rs.4 1,000/- and the sale consideration was paid by Ramabayamma wife of Brahmanandam Bappaiah Panthulu. Subsequently, B.V.LNarayana Rao filed O.S.No. 110/1964 seeking for partition and in Misc.Case No.1/1970, the property was partitioned and the father of the plaintiff and defendants I to 8 got the suit schedule properties. Hence, at no stretch of imagination, the suit schedule properties can be treated as joint family properties. No document has been produced before the court to show that Bapatla Venkatakirshnaiah left any property for B.B.Rao. Hence, the father of the plaintiff and defendants I to 8 has right to alienate his self acquired property. Accordingly, as per the sale deed dated 4-10-1996, he sold the suit properties in favour of defendants 10 to 15. Neither plaintiff nor defendants I to 8 have any right in respect of the properties belonging to B.B.Rao. He can dispose of the same according to his wishes. The allegation made in the P plaint that B.B.Rao is aged about 80 years and he was brought to Bellarv from Kovur for the purpose of cancelling the power of attorney executed in favour of one B,V.Javaram is totalh misconceived. Further, the 4th defendant i.e. Venkatasathvanaravana has signed the sale deed as an attesting witness. Hence, neither the plaintiff nor defendants 1 to 8 have any right over the said property. Further, the plaintiff has not sought for any declaration with regard to the sale deed executed by B.B.Rao in favour of defendants 10 to 15. In the absence of the same, the plaintiff and defendants I to 8 are not entitled to any relief and sought for dismissal of the suit. 7. On the basis of the pleadings of the parties. the court below framed the following issues: (i) Whether plaintiff proves that the Item No. 1 and 2 of suit properties are joint family properties and were treated as joint family properties, wherein plaintiff and defendants I to 9 have equal rights and interest over the properties? /‘ 12 (ii) Whether plaintiff further proves that his father never executed any sale deeds in favour of defendant Nos. 10 to 15 nor there was any family necessity to sell suit properties in favour of defendants 10 to 15 and no consideration was passed? (iii) Whether plaintiff further proves that defendants 10 to 15 by playing fraud, took signature of his father on various documents and plaintilYs father had no right to alienate the interest and shares of plaintiff and defendants I to 9? (iv) Whether plaintiff further proves that his father never executed power of attorney in favour of defendants 16 and 17 on 10-3 1997? (v) Whether defendants prove that the suit schedule properties were self acquired properties of plaintiff’s father, in which, plaintiff and defendants I to 9 did not have any right to question the alienation? k I, I 3 (vi) Whether defendants 10 to 15 prove that they are bonafide purchasers for the value without notice from the father of plaintiff? (vii) Whether defendants 10 to 15 further prove that ever since the date of purchase they have been in possession and enjoyment of suit properties in their own rights and title? (viii) Whether plaintiff is entitled for 10/54th share in the suit properties? (ix) What order or Decree, parties are entitled? 8. In order to prove his case, the plaintiff got examined himself as P.W. 1 and got marked the documents as Ex.P1 to Ex.P6. On behalf of the defendants, 10th defendant got himself examined as D.W. 1 and 3rd defendant was examined as D.W.2 and got marked the documents as Ex.D1 to Ex.D1 1. 9. The court below after considering the oral and documentary evidence let in by the parties held issue 1- Nos. 1, 2, 3 and 8 in the negative; issue No.5 and 6 in the affirmative and deleted issue Nos.4 and 7 and by its judgment and decree dated 7-6-2006 dismissed the suit. Being aggrieved by the judgment and decree dated 7-6-2006, the plaintiff preferred this appeal. 10. Sri.Shivaraj Hiremath. learned counsel appearing for the appellant contended that the judgment and decree passed by the court below is contrary to law and evidence on record. The reasoning assigned by the court below while dismissing the suit filed by the appellant is also contrary to law. The Trial Court further failed to consider that the father of the plaintiff and defendants 1 to 8 was holding the properties as Kartha of the joint family, as they are ancestral properties. He has no right to alienate the said properties without the consent of his children. Purther there is no need or family necessity to sell the joint family properties. The Trial Court had failed to consider that paper notification was also issued notifying the public that the suit schedule properties are the joint 15 family properties and father has no right or power to alienate the properties belonging to the joint family, In spite of the same, the respondents 10 to 15 purchased the same. These aspects of the matter has been completeh overlooked by the Trial Court. in support of his contention, learned counsel for the appellant has relied upon some of the judgments reported in 2000(4) KCCR 2609 in the case of SRI RAMESH SR1N1VAS JANNU v/s SRINIVASA VITTOBA JANNU AND OTHERS and AIR 1971 SC 1865 in the case of SAlT TARAJEE KHIMCHAND AND OTHERS \/s YELAMARATI SATHYAM AND OTHERS. 11. On the other hand, learned counsel appearing for respondents I to 9 argued in support of the appellant and sought for partition oF the suit schedule properties b\ allowing the appeal. 12. Sri. Y,Lakshmikanth Reddv, learned counsel appearing for the respondents 10, 14 and 15 argued in support of the judgment and decree passed by the court k 16 below and sought for dismissal of the appeal. They have contended that the appellant has not produced any documents to show that their grandfather owned vast extent of property and out of nucleus of the joint family properties. the father of the appellant and respondents No. I to 8 has purchased the suit properties. No revenue entry is also produced before the court. On the other hand, the documents produced by them clearly disclose that the suit schedule properties were purchased by B.B.Rao and others on 2-10 1945 and in O.S.No.1 10/ 1964. the suit schedule properties were allotted to the share of B.B.Rao in Misc.Case No.1/1970. Hence, it is clear that the suit schedule properties are the self-acquired properties of B.B.Rao and he has all the right to alienate the properties. Neither the appellant nor respondents 1 to 8 have right, title over the said properties and sought for dismissal of the appeal. 13. The plaintiff in his evidence has reiterated the averments made in the plaint and also got marked the Ar documents Ex.Pi to Ex.P.6 and he also rehed upon the sale deed dated 26-6-1909 wherein the wife of Bapatla \ 7 enkatakrishnaiah purchased some properties at Hadavi village, Andhra Pradesh State. Further, the copy of the sale deed dated 18-7-1911. under which one Venkata krishnaiah son of Bapatla Ramaiah has purchased the property who is the son of Bapatla Venkatakrishnaiah. Ex.P.3 is the sale (Iced dated 25-12-1965 under which. Veeraiah son of Adinaravana purchased some properties of B.B.Rao and Ex.P.4 is the Xerox copy of the agreement dated 10-6-1963 under which, B.B.Rao agreed to sell the property to one Bapatla Krishnaiah. Ex.P.5 is the cop\ of the paper notification given on 21-3-1997 by the plaintiff. Ex.P.6 is the hand pamphlet. In the cross-examination, the plaintiff stated that he was a permanent resident of Chennai. He was born after the death of his grandfather. The respondents I to 4 are his brothers and 5 to 8 are his sisters and respondent No.9 is his mother. I—fe has never seen Bellary prior to 1997. As on 2-10-1945, he was aged about 10 years, he does not /fr 18 know whether their family owned 35 to 40 acres of land. He does not have any document to show that their family owned 35 40 acres of land. He does not know what is the income from those lands. Except Ex.Pl to Ex.P4 he does not have any other records to show that their family owned the properties. Further. he has nOL seen the village where the property is situated. He does not have any revenue records or RTC entries to show that neither plaintiff nor defendants I to 8 are in possession of the said properties. Their family has not cultivated the said land at any point of time. He does not know when Sy.No.597 was sub divided into 597/B I and 597/BI /B3. The plaintiff further admiited that his father B.B.Rao has sold the said property in the year 1996. 14. The defendant No.10 who was examined himself as D.W. I reiterated the aerments made in the written statement. In the cross-examination, he deposed that lie was a bona fide purchaser of the suit schedule property for a valuable consideration. The son of V ‘9 B.B.Rao i.e. Venakatasathyanarayana has signed the sale deed as an attesting witness. The sale consideration has been paid on the said date of sale deed. Further, the suit schedule property is the self- acquired property of B.B.Rao and his children have no right over the self-acquired properties of B.B.Rao. For the last 50 years, nobody has cultivated the said lands. The 3rd defendant was examined as D.W.2 who supported the case of the plaintiff and sought for partition of the suit schedule properties. In the cross- examination, he has deposed that he was born on 1-3-1952 and his father along with others purchased the suit schedule properties on 2-10- 1945. He has not êeen the lands and he does not know the survey numbers of the said lands. The said properties have been alienated by his father. He does not have any document to show that the suit schedule properties are the ancestral properties of B.B.Rao. Further, Sy.No.60 1 was acquired by the State Government and they have received the compensation from the State Government. 4.- 20 15. We have carefully considered the arguments addressed by the learned counsel for the parties and perused the materials available on record. 16. On considering the oral and documentary evidence of the parties, the points that arise for our determination in this appeal are: (i) Whether the appellant proues that the suit schedule propeflies are the ancestral properties of the father of plaint(ffand defendants I to 8? (ii) Whether the defendants 10 to 15 are the bonafide purchasers of the property from B.B.Rao? (iii) Whether the appellant has made out a case to interfere with the judgment and decree passed by the Court below? 17. The oral and documentary evidence clearly disclose that the suit schedule properties were purchased by B.B.Rao along with others on 2-10-1945 and sale consideration was paid by 21 Smt.Ramabayamma. In O.S.No.1l0/1964 filed by the B.V.LNarayana Rao on the file of Civil Judge, Bellary and in Misc.Case No.1/1970 seeking for partition, the suit schedule properties were allotted to the share of B.B.Rao. He was a permanent resident of Andhra Pradesh. The records disclose that no cultivation has been made for more than 35 years. The said properties were alienated on 4-11-1996 in favour of the respondents 10 — 15 for valuable sale consideration and received the sale consideration. The suit schedule properties are situated at Bellary District. The plaintiff himself admitted that he is a permanent resident of Chennai and he has never seen the suit schedule properties at any point of time. Though the appellant contended that the suit schedule properties are the ancestral properties and B.B.Rao has no right to alienate the properties, no document has been produced in this regard. The Ex.P.l to Ex.P.6 are not related to the suit schedule properties. The suit properties were purchased by the grandmother of the appellant and some other properties have been purchased by the k Uncle of the appellant. He has produced some documents to show that his father had alienated the properties in the year 1963. If the father has alienated some properties in the year 1963, it is only for the family necessities. The father being the Kartha of the family can alienate the properties for family necessities, in the instant case, B.B.Rao himself had purchased the properties along with others. In O.S.No.1iO/l964, the suit properties were allotted to his share and he became the absolute owner. No document has been produced before the court below to show that B.B.Rao has purchased the suit schedule properties out of the nucleus of the joint family properties. Further no document is produced before the court below to show that Bapatla Venkatakrishnaiah left any property to B.B.Rao. In the absence of the same, the contention of the appellant that the suit schedule properties are joint family properties cannot be accepted. Hence. we hold point No.1 against the appellant. 18. Further it is the case of respondents 10 to 15 that they had purchased the suit schedule properties from B.B.Rao on 4-1 1-1996, for a valuable sale consideration and the suit schedule properties are the self-acquired properties of B.B.Rao and he has right to alienate said properties according to his own wish and will. In view of the finding given in point No.1, we hold that the respondents 10 to 15 are the bona fide purchasers of the suit schedule properties. Hence point No.2 is held against the appellant. 19. The records clearly disclose that the suit schedule properties are the self-acquired properties of B.B.Rao. No cultivation has been made in the suit lands for the last 35 years. B.B.Rao was a permanent resident of Nellore District and the suit schedule properties were situated at Bellarv District. Further, the appellant as well as respondents 1 to $ have never seen the suit schedule properties and they were also permanent residents of Chennai and Andhra Pradesh respectively. Further, the appellant is fully aware of alienation of the e a 24 property in the year 1996. The paper notification has been given as per Ex.P.6 in the year 1997 after alienation of the properties. In the suit, he has not sought for any declaration declaring that the sale deed executed in favour of respondents 10 to 15 is contrary to law. In the absence of the same, the suit filed by the plaintiff seeking for partition and separate possession does not arise since B.B.Rao ceased to be the owner of the said properties. Further, the brother of the appellant, i.e. Venkatasathyanarayana was one of the attesting witnesses to the sale deed. Hence it is clear that the appellant as well as the respondents 1 to 8 are fully aware of the sale deed. Hence, the suit filed by the appellant seeking for partition itself is not maintainable, since he has not sought for declaration. The court below after considering the oral and documentary evidence has clearly held that suit schedule properties are not the ancestral properties of the appellant and respondents 1 to 8 and they are the self-acquired properties of B.B.Rao. He has right to alienate the properties and appellant and respondents 1 to 8 are not entitled to any share. We find that there is no infirmit or irregularity in the judgment and decree passed by the court below, The appellant has not made out a case to interfere with the welhconsidered judgment and decree passed by the court below, The judgements relied upon by the appellant are not applicable to the facts of the case. Hence, we pass the following ORDER The appeal is dismissed. Parties to bear their own costs. Sdtm JUDGE Sd/ JUDGE mpk/*