Case: Shivasharanappa Vs. Sri Amarappa &amp; Others

1. We have heard learned counsel for the parties.2. This appeal by special leave petition arises out of a common judgment passed by the High Court of Karnataka in R.S.A. Nos. 725 and 726 of 2001, dated 18th January, 2006 whereby the High Court dismissed RSA No. 725 of 2001 and partly allowed RSA No. 726 of 2001.3. The whole dispute revolves around one acre of non-agriculture land allegedly purchased by the appellant-plaintiff from one Sharabanna Wanikihal, father of respondent/defendant Nos. 1-4 and husband of respondent No. 5, by way of a registered sale deed dated 23-02-1987 for a consideration of Rs. 15,000/-. When the defendants/ respondents were allegedly interfering with the peaceful possession and enjoyment of the property, the appellant filed O.S. No. 17 of 1994 seeking perpetual injunction in respect of the suit schedule property. On the other hand, respondent No.1 herein filed O.S. No. 72 of 1995 seeking declaration that the sale deed dated 23-02-1987 is null and void.4. The trial Court though decreed the Suit filed by the appellant for permanent injunction by restraining the respondents from interfering with the peaceful possession and enjoyment of the suit schedule property, the first appellate Court reversed the finding by allowing the appeal mainly on the basis of the earlier judgment in the suit filed by the respondent for declaration. Aggrieved by the judgment and decree passed by the 1st appellate Court the appellant carried the matter in second appeal in RSA No. 725/2001. Whereas, O.S. No. 72 of 1995 was preferred by the defendant/Respondent No. 1 for annulment of the sale deed which was dismissed by the trial Court, but the 1st appellate Court allowed the appeal thereby declaring the sale deed dated 23-02-1987 as null and void. Aggrieved thereby, the appellant-purchaser carried the matter by filing regular second appeals before the High Court. The High Court heard both appeals of the appellant and by way of common judgment dismissed RSA No. 725 of 2001 arising out of the injunction suit and partly allowed RSA No. 726 of 2001 by directing return of property subject to refund of the sale consideration. Dissatisfied with the judgment of the High Court, the purchaser of the land is before us in this appeal.5. Learned counsel for the appellant argued that his client has purchased the land for a valid consideration by way of a registered sale deed which was lawfully executed and the view taken by the High Court that there was no proof of legal necessity is baseless. The legal necessity can be inferred from the fact that other pieces of land have also been sold by the father of respondents to other persons.6. Learned Senior counsel appearing for the respondents submitted that there was no substantial question of law in this appeal for determination by this Court. He contended that the sale deed in question was got registered in a fraudulent manner and the appellant has failed to prove the execution of sale deed inasmuch as PW2--Mallikarjun in O.S. No. 72 of 1995 has categorically denied to have attested the sale deed as witness. Moreover, there was no evidence to reflect existence of legal necessity in support of the alleged sale deed and the father of respondents had not sold any piece of land to any person.7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. We have given our thoughtful consideration to the submissions made on behalf of either parties and perused the material available on record. First and foremost, the appellant fails to draw our attention to the substantial question of law which warrants interference of this Court. In respect of joint family properties when the property is sold by the kartha of the joint family defeating the interest of the plaintiff/respondent the burden heavily lies on the appellant to prove that property was sold for the necessity of joint family. In this case, the appellant failed to discharge his burden when admittedly it is a joint family property. Apart from that even the attester of the sale deed has not supported the appellant and he has gone to the extent of deposing that he has never gone to the Registrars office. Hence the High Court was perfectly right in partly decreeing the suit by directing the plaintiff to return the sale consideration as he could not prove fraud as alleged by him.8. Considering the facts and circumstances of the case in their entirety, we are of the considered opinion that the High Court has rightly dealt with the matter.