IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.625 OF 2019 Between:
SMT. B.C.PUSHPALATHA W/O PUTTARAJU D/O CHALUVANNA AGED ABOUT 36 YEARS R/O NO.44, ALLAMAPRABHU ROAD GAVIPURAM, HANUMANTHANAGAR BENGALURU-560019. ... APPELLANT (BY SRI S.B.HALLI, ADVOCATE) And:
1. CHALUVANNA WHO IS ALSO CALLED AS CHANNUVANNA S/O LATE CHANNAIAH @ CHIKKAHYDAEGOWDA AGED ABOUT 66 YEARS R/O MALLAIAHINA DODDI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT.
2. MANGALA @ MANGALAGOWRAMMA D/O HONNAMMA W/O VARDARAJU AGED ABOUT 41 YEARS R/O HANIYUR VILLAGE VIRUPAKSHIPUR HOBLI MALURU HOBLI CHANNAPATNA TALUK-562160 RAMANAGAR DISTRICT.
3. GEETHA M.C D/O CHALUVANNA W/O BOREGOWDA AGED ABOUT 41 YEARS R/O MALLAIAHINA DODDI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT-577401.
4. SHIVANANJU S/O CHANNAPPA AGED ABOUT 44 YEARS R/O MALLAIAHINA DODDI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT-577401.
5. M.C.MANJULA D/O B.C.MADAPPA AGED ABOUT 52 YEARS R/O MALLAIAHINA DODDI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT-577401.
6. B.C.YOGESH S/O CHALUVANNA AGED ABOUT 33 YEARS R/O MALLAIAHINA DODDI VILLAGE KASABA HOBLI MANDYA TALUK AND DISTRICT-577401.
7. B.C.SHOBHA D/O CHALUVANNA W/O KEMPARAJU AGED ABOUT 40 YEARS R/O GORAVANHALLI ROAD VISHWESHWARAIAH NAGAR 6TH CROSS, MADDURU MANDYA-577401.
8. B.C.SHYLAJA D/O CHALUVANNA W/O MRUTHYUNJAYA AGED ABOUT 32 YEARS R/O ARALERI VILLAGE MALURU TALUK KOLAR DISTRICT-563130. ...RESPONDENTS (BY SRI M.G. RAVISHA, ADVOCATE FOR R1-R3, SRI R.S. RAVI, ADVOCATE FOR R5, SRI M. SHIVAPRASAD, ADVOCATE FOR R7, SERVICE OF NOTICE TO R6 & R8 IS HELD SUFFICIENT V/O DATED 20.06.2019) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.03.2018 PASSED IN RA.NO.19/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.01.2016 PASSED IN O.S.NO.161/2007 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MANDYA AND ETC., THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the plaintiff calling in question the judgment dated 31.03.2018 passed in RA No.19/2017 on the file of the IV Additional District and Sessions Judge, Mandya (for short, ‘the appellate Court’). The appellant has filed the suit in OS No.161/2007 on the file of the Principal Senior Civil Judge and CJM., Mandya (for short, ‘the trial Court’) for partition of different immovable properties described in the plaint schedule, and the suit is decreed by the trial Court by the judgment dated 29.01.2016 declaring that the appellant is entitled for 1/5th share in the suit schedule properties along with the respondent Nos. 1, 6, 7 and 8. The respondent No.1, along with the respondent Nos.2 and 3 have impugned the Trial Court’s judgment in RA No.19/2017. The appellate Court has set aside the trial Court’s judgment and dismissed the appellant’s suit. As such, the present appeal.
2. The appellant has filed this suit for partition asserting that the respondent No.1 is her father who was married to Smt. Jayalakshmamma and Smt.Honnamma. The appellant and the respondent Nos.6, 7 and 8 are the children of Smt. Jayalakshmamma and the respondent Nos.2 and 3 are the children of Smt. Honnamma. The respondent No.1 is addicted to vices and spends his time gallivanting. He has acquired certain properties in a partition with his brothers. However, with the sole purpose of ensuring that the respondent No. 1 would not unjustly alienate the properties so acquired, at the time of partition the properties described as item Nos.6 and 7 were shown to be allotted to the respondent No.7 and to the children to be born to the appellant’s mother, Smt. Jayalakshmamma, who participated in the partition as the natural guardian of the respondent No.7.
3. The respondent No.1, apart from the properties acquired in the partition above mentioned, has also acquired title to certain other properties set apart in such partition for his parents as “Ajjapalu” and, the item No.5 is one such property. The appellant and the other children along with the respondent No.1 constitute the joint family and each one of them is entitled for a share in all the suit schedule properties. The respondent No.1 has continued his gallivanting ways and has never taken up the responsibility in providing for the children.
4. The respondent No.1 and the respondent No.7 have filed their written statement. They have contended that the appellant’s mother, Smt. Jayalakshmamma could not be in the family way even after many years of marriage and therefore, she consented for the marriage between the respondent No.1 and Smt. Honnamma. They have not disputed the relationship inter se parties. They have essentially contended that the coparcenary is amongst the respondent No.1 and the respondent Nos.2 and 3. The respondent No.1 has transferred to the respondent Nos.2 and 3, the suit schedule item No.5 property in recognition of their pre-existing rights in all the suit schedule properties. The respondent No.1 has sold a portion of the suit item No.4 in favour of the respondent No.4 and 5 to discharge a loan. The purchaser-respondent No.4 has filed his written statement contending that he is a bona fide purchaser of the value of portion of the property described in item No.4 and that, he has put up construction after availing certain benefits under the Governmental Scheme.
5. The trial court on appreciation of the evidence, which include the oral evidence led in by the appellants and the documentary evidence like the revenue records/sale deeds and certain photographs, decreed the suit as aforesaid with the observation that the respondent No.4 is entitled for working out on equities as regards the portion of the property purchased by him under the sale deed dated 11.07.2005. The respondent Nos.1, 2 and 3 impugned the trial Court’s judgment in the first appeal, and in support of their challenge, they filed an application under Order XLI Rule 27 of Code of Civil Procedure seeking leave to produce the partition deed dated 16.02.1979. The appellate Court, which framed the points for consideration, including as to whether the respondent Nos.1 to 3 have established any ground to allow the application filed under Order XLI Rule 27 of Code of Civil Procedure, concluded that the partition deed dated 16.02.1979 is essential for adjudication of the dispute. As such, the appellate court allowed the application. While allowing the application, the appellate Court also decided the appeal on merit relying upon the partition deed.
4. The learned counsel for the appellant contends that once the appellate Court decided to allow the application under Order XLI Rule 27 of Code of Civil Procedure and received the partition deed dated 16.02.1979 as additional evidence, the appellate Court ought to have framed the necessary point for consideration and recorded the evidence as contemplated under Order XLI Rules 28/29 of Code of Civil Procedure. The Court has neither framed the issues nor has it afforded to the appellant any opportunity to lead rebuttal evidence. The appellate Court could not have decided the appeal on merit. The appellate Court’s failure is not only an infraction of the mandate in law, but also has resulted in miscarriage of justice.
6. The substantial question of law that arises for consideration is:
“ (1) Whether the appellate Court, after allowing the application under Order XLI Rule 27 of Code of Civil Procedure, should have had recourse to Order XLI Rules 28/29 of Code of Civil Procedure affording an opportunity to the appellant to lead rebuttal evidence, and (2) Whether the failure to have recourse to the provisions of Order XLI Rules 28/29 of Code of Civil Procedure renders appellate Court’s judgment perverse and irregular.”
The learned counsel for the appellant and the learned counsel for the respondent have been heard on the aforesaid substantial questions of law and the appeal is taken up for final disposal with their consent.
7. The appellant, though she did not refer to the registered partition deed dated 16.02.1979 specifically in the plaint, referred to the same in her evidence and, in consonance with the plaint, she stated in her evidence that at the time of execution and registration of the partition deed dated 16.02.1979, a property was set apart as being allotted to the respondent No.7 and the children to be born to Smt. Jayalakshmamma because, the family members wanted to prevent unjustified alienation as the respondent No.1 was addicted to vices and would spend his time gallivanting. Therefore, all the children of the respondent No.1 including the appellant, would be entitled for a share. The question for adjudication therefore was, whether the appellant, being the daughter of Smt.Jayalakshmamma, is entitled for a share in the suit schedule property despite the partition deed dated 16.02.1979.
8. The trial Court has found in favour of the appellant inter alia because this partition deed was not produced by the contesting respondents. It is to fill up this lacuna that the contesting respondents have filed their application under Order XLI Rule 27 of Code of Civil Procedure. The appellate Court, for the reasons recorded, has found that this registered partition deed dated 16.02.1979 would be a crucial piece of evidence. After receiving this document as additional evidence, the appellate Court has proceeded to interfere with the Trial Court’s judgment on the premise that the registered partition deed dated 16.02.1979 establishes a prior partition inter se the appellant’s mother and her children, (including the appellant) and the respondent No.1. The appellate Court has not adjudicated the real controversy between the parties as mentioned supra. This controversy requires adjudication because the appellant is consistent in her stand that there is a registered partition deed dated 16.02.1979 was also executed for a particular purpose viz., to prevent the respondent No.1 from wasting ancestral properties, otherwise there is no partition between Smt.Jayalakshmamma’s children and the respondent No.1.
9. The appellate Court, on receiving the additional evidence viz., partition deed dated 16.02.1979, should have extended an opportunity to the appellant to lead evidence as necessary under the provisions of Order XLI Rules 28/29 of Code of Civil Procedure and decided this particular controversy. The appellate Court’s failure to afford an opportunity to the appellant to lead evidence and decide on the real controversy renders its judgment contrary to law. Therefore, the substantial questions of law framed are answered accordingly.
10. For the reasons discussed above, this Court is of the considered opinion that it would be appropriate to set-aside the appellate Court’s judgment and to restore the appeal to the file of the appellate Court calling upon the appellate Court to accord an opportunity to the appellant and the respondents to lead further evidence and decide the appeal on merits in the light of the observations made herein. Therefore, the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment dated 31.03.2018 in R.A.No.19/2017 passed by the IV Additional District and Sessions Judge at Mandya is set-aside and the appeal is restored to the Board of the appellate Court for disposal of the appeal in the observations made hereinabove.
(iii) The parties shall appear before the appellate Court on the next date of hearing on 18.11.2019.
Sd/- Judge GH