Shri. Santosh Parashuram @ v. Smt. Sumitra W/O Parashuram @

NC:(2024:KHC-D:15305-DB( RFA(No.(100277(of(2018( ( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA,(DHARWAD(BENCH( RDDATED(THIS(THE(23 (DAY(OF(OCTOBER,(2024(

PRESENT(

THE(HON'BLE(MR.(JUSTICE(SREENIVAS(HARISH(KUMAR(

(AND((

(THE(HON'BLE(MR.(JUSTICE(T.(G.(SHIVASHANKARE(GOWDA(

REGULAR,FIRST,APPEAL,NO.100277,OF,2018,(DEC/INJ), , BETWEEN:( (

1., SHRI,SANTOSH,PARASHURAM,, @,PARASAPPA,SARIKAR, AGE:,33,YEARS,,OCC:,AGRICULTURE,, R/O:,HARUGERI,,TA:,RAIBAG,,, DIST:,BELAGAVI-591220.,

,

2., SHRI,SHANKAR,PARASHURAM,, @,PARASAPPA,SARIKAR, AGE:,27,YEARS,,OCC:,AGRICULTURE,, R/O:,HARUGERI,,TA:,RAIBAG,,, DIST:,BELAGAVI-591220., ,

3., SMT,SUJATA,RAMA,MANG,,

AGE:,24,YEARS,,, OCC:,HOUSEHOLD,WORK,AND,AGRICULTURE,, R/O:,BYAKUD,,TAL:,RAIBAG,,, Digital y signedtiby VINAYAKA0B V DIST:,BELAGAVI-591317., Location: VINAYAKA High0Courttiof Karnataka,B0V Dharwad …APPELLANTS, Bench Date: 2024.10.30 10:08:57 (BY,SRI,SANGRAM,S,KULKARNI,,ADVOCATE), +0530 , AND:( (

1., SMT.,SUMITRA,W/O,PARASHURAM,, @,PARASAPPA,SARIKAR, AGE:,56,YEARS,,, OCC:,HOUSEHOLD,WORK,AND,AGRICULTURE,,, R/O,HARUGERI,,TAL:RAIBAG,,, DIST:,BELAGAVI-591220., ,

2., SHRI,IRAPPA,GIREPPA,MUDASHI, AGE:,45,YEARS,,OCC:,AGRICULTURE,, NC:(2024:KHC-D:15305-DB( RFA(No.(100277(of(2018( ( ( ( ( R/O:HARUGERI,,TAL:RAIBAG,,, DIST:,BELAGAVI-591220., ,

3., SHRI,BASAPPA,GIREPPA,MUDASHI, AGE:,40,YEARS,,OCC:,AGRICULTURE,, R/O:,HARUGERI,,TAL:RAIBAG,,, DIST:,BELAGAVI-591220., ,

4., SMT.,BASAVVA,MUTTEPPA,HANAGANDI, AGE:,43,YEARS,,, OCC:,HOUSEHOLD,AND,AGRICULTURE,, R/O:HARUGERI,,TAL:RAIBAG,,, DIST:,BELAGAVI-591220., ,

5., THE,SPECIAL,LAND,ACQUISITION,OFFICER, AND,ASSISTANCE,COMMISSIONER,, SUB-DIV,,CHIKODI-591201,, CHIKODI,,DIST:,BELAGAVI., ,

6., THE,STATE,OF,KARNATAKA, R/BY,DEPUTY,COMMISSIONER,, BELAGAVI-590001., …RESPONDENTS, (BY, SRI,H,M,DHARIGOND,,ADV.,FOR,R2,TO,R4;, SMT.,GIRIJA,HIREMATH,,HCGP,FOR,R5,&,R6,, NOTICE,TO,R1,IS,SERVED), , , THIS, REGULAR, FIRST, APPEAL, IS, FILED, UNDER, ORDER, XLI, RULE,1,AND,2,R/W,SECTION,96,OF,CPC.,,PRAYING,TO,,SET,ASIDE, THE,JUDGMENT,AND,DECREE,PASSED,BY,THE,SENIOR,CIVIL,JUDGE, AND, JMFC,, RAIBAG, IN, OS, NO.226/2016, DATED, 17.04.2018, BY, ALLOWING, THE, PRESENT, APPEAL, AND, DISMISS, THE, SUIT, IN, THE, INTEREST,OF,JUSTICE,AND,EQUITY., , THIS, REGULAR, FIRST, APPEAL,, COMING, ON, FOR, FINAL, HEARING,, THIS, DAY,, JUDGMENT, WAS, DELIVERED, THEREIN, AS, UNDER:, , CORAM:, THE,HON'BLE,MR.,JUSTICE,SREENIVAS,HARISH,KUMAR, ,AND,, THE, HON'BLE, MR., JUSTICE, T., G., SHIVASHANKARE, GOWDA,

ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR) This appeal is directed against the judgment dated

17.04.2018 in O.S.No.226/2016 on the file of Senior Civil Judge & JMFC, Raibag.

¶2The plaintiffs are the appellants. Their suit is for declaration, injunction, partition and separate possession of the properties in Sy.No.501/3A measuring guntas and Sy.No.502/3B measuring 18 guntas situated at Harugeri village of Raibag taluk, Belagavi District ("suit properties" for short). The plaintiffs claimed that suit properties were ancestral and that Smt.Yallavva and her son Parashuram @ Parasappa sold them to defendant no.2 to 4 under a sale deed dated

23.10.1997. Alleging that sale was not for legal necessities as plaintiffs' father Parashuram @ Parasappa was victim of vices, they challenged the sale deed and also sought partition and separate possession of their share.

¶3Defendant nos.2 to 4 appeared and filed written statement stating that they were bonafide purchasers.

¶4The Trial Court having framed four issues recorded examination-in-chief of PW.1. But PW.1 did not appear for cross-examination. Defendant no.4 adduced evidence as DW.1 and he was not cross-examined by the plaintiffs. Answering the issues against the plaintiffs, the Trial Court dismissed the suit.

¶5We have heard Sri Sangram S.Kulkarni, learned counsel for the appellants, Sri H.M.Dharigond, learned counsel for respondent Nos.2 to 4 and Smt.Girija Hiremath, learned High Court Government Pleader for respondent nos.5 and 6.

¶6The argument of Sri Sangram Kulkarni is that the suit properties actually belonged to Smt.Yallavva, the grandmother of plaintiffs. Plaintiffs' father Parashuram @ Parasappa was addicted to liquor. Both Smt.Yallavva and Parashuram sold the suit properties without there being legal necessity for the family. In this view, the alienation effected by them did not bind interest of the plaintiffs. Though the 1st plaintiff adduced evidence as PW.1, for some reason he could not tender himself for cross-examination and the plaintiffs could not cross-examine DW.1. The lands were acquired subsequently and the compensation amount is still available in deposit. It has not been withdrawn by defendant nos.2 to 4.

The plaintiffs have got a legitimate share in the compensation amount. If an opportunity is given PW.1, he will appear for cross-examination and therefore the appeal is to be allowed and the matter is to be remanded to the Trial court.

¶7Sri H.M.Dharigond submits that properties belonged to Smt.Yallavva, one of the plaintiffs was not born on the day when she and her son sold the suit properties to defendant nos.2 to 4. Absolutely the plaintiffs have no right in the suit properties. Realizing that compensation amount is still available, they filed a frivolous suit in order to claim share in the compensation. He also submitted that PW.1 did not appear for cross-examination and thereby there is no evidence from the plaintiffs' side. Having regard to all these aspects, the Trial Court dismissed the suit. There is no infirmity in it.

¶8Smt.Girija Heremath learned High Court Government Pleader supports the impugned judgment.

¶9It is not for the reason that PW.1 did not tender himself for the cross-examination, a plain reading of the plaint indicates that the property absolutely belonged to Smt.Yallavva. Therefore she had every right to alienate the suit properties. Merely for the reason that her son Parashuram

joined with her in executing the sale deed in favour of defendant nos.2 to 4 on 23.10.1997, it cannot be said that the suit properties were ancestral so that the plaintiffs could lay a claim for share in the suit properties. From the plaint averments itself we notice that the suit properties belonged to Smt.Yallavva absolutely and she had every right to deal with it in any way she liked.

¶10Secondly the sale deed came into existence on

23.10.1997 and the suit was filed in the year 2016. By that time the suit property was acquired by the Government and compensation was awarded. Probably with a view to claiming share in the compensation, plaintiffs might have filed the suit which is not at all maintainable in the eye of law. This being the factual aspect, even if the case is remanded, it serves no purpose. Appeal is devoid of merits and therefore it is dismissed. Sd/- (SREENIVAS HARISH KUMAR) JUDGE

Sd/- (T. G. SHIVASHANKARE GOWDA) JUDGE EM LIST NO.: 1 SL NO.: 31