IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 294 OF 2018 (PAR) Between:
SHRI G. GOVINDARAJU SON OF M. V. GOPALAIAH AGED ABOUT 42 YEARS RESIDING AT CHUNCHANAKUPPA VILLAGE THAVAREKERE HOBLI BANGALORE SOUTH TALUK BANGALORE DISTRICT PIN – 562 130.
... APPELLANT (BY SRI. Y.R. SADASHIVA REDDY, SENIOR ADVOCATE FOR; SRI. MANJUNATH R ., ADVOCATE) And:
1. SHRI M. V. GOPALAIAH SON OF LATE K. VENKATAPPA AGED ABOUT 60 YEARS RESIDING AT CHUNCHANAKUPPE VILLAGE THAVAREKERE HOBLI BANGALORE SOUTH TALUK, BANGALORE DISTRICT PIN - 562 130.
2. M/S MAHARSHI VEDA VIGYAM VISHWAVIDYAPEETHAM NO.A-14, MOHAN CO OP INDL ESTATE NEW DELHI – 110 044 REP BY THE GPA HOLDER SHRI R. P. DESHAPANDE SON OF P. N. DESHAPANDE AGED ABOUT 57 YEARS RESIDING AT NO.201, VANDANA RESIDENCY 107, 2ND MAIN CHAMRAJPET BENGALURU – 560 018.
3. SHRI ANJAY SHARMA SON OF UMESH SHARMA RESIDING AT MAHARISHI BALA VIDYA MANDIR BAGLUR ROAD, HOSUR T.N - 635109 ( AMENDMENT CARRIED OUT AS PET THE ORDER DATED 13.08.2019) 4. SHRI G. C. SAMBAIAH SON OF LATE CHIKKANNA AGED ABOUT 63 YEARS RESIDING AT 548, 4TH MAIN, II STAGE, WEST OF CHORD ROAD MAHALAKSHMIPURAM BANGALORE – 560 086. REPRESENTED BY HIS GPA HOLDER SHRI T. H. VASUDEVA MURTHY SON OF LATE T. HANUMANTHAIAH AGED ABOUT 47 YEARS, RESIDING AT NO.83 SHUBHAMANGALA NIVASA VIJAYANAGARA , BENGALURU – 560 040.
... RESPONDENTS (BY SRI.T.B. MANJUNATH, ADVOCATE FOR R-1 NOTICE HELD SUFFICIENT TO R-2 TO R-4 BY ORDER DATED 20.06.2019 ) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 11.07.2017 PASSED IN RA NO.52 OF 2016 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.08.2016 PASSED IN OS NO.564 OF 2014 (OLD NO. 579/2012) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MAGADI.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the plaintiff in O.S.No.564/2014 (initially numbered as O.S.No.579/2012) on the file of the Senior Civil Judge, Magadi (for short, ‘trial Court’). This suit is decreed in part by the trial Court by its judgment dated 20.08.2016. The appeal filed by the appellant in R.A.No.52/2016 on the file of the III Additional District and Sessions Judge, Ramanagar, (for short, ‘appellate Court’) is dismissed by the judgment dated 11.07.2017 confirming the trial Court’s judgment.
2. Heard Sri Y.R. Sadashiva Reddy, the learned Senior counsel for the appellant and Sri T.B. Manjunatha, the learned counsel for the respondent No.1. The other respondents, though served, have remained absent. Perused the impugned judgments by the trial Court as well as the appellate Court, and the application filed by the appellant in IA No.2/2018 under Order XLI Rule 27 of the Code of the Civil Procedure seeking leave of this Court to produce the additional documents.
3. The appeal is taken up for final disposal with consent of the learned Senior counsel for the appellant as well as the learned counsel for the respondent No.1.
4. The undisputed facts necessary for disposal of this appeal could be stated thus:
a) Sri K. Venkatappa was the undisputed owner of the land in Sy.No.44 of Chunchunakuppe village, Thavarekere Hobli, Bengaluru South Taluk. Sri K.Venkatappa’s sons - Sri M.V.Gopalaiah (respondent No.1) and Sri.M.V.Srinivasaiah succeeded to the properties left behind by Sri K.Venkatappa. These two brothers entered into a partition prior to 10.03.1997 dividing the properties left behind by Sri K.Venkatappa. The properties left behind by Sri K.Venkatappa included the aforesaid land in Sy.No.44 and the land in Sy.No.45/3 of the same village. In this partition, an extent of 7 acres 5 guntas in Sy.No.44 was allotted to the elder son, the respondent No.1, and an extent of 6 acres 35 guntas was allotted to the other son – Sri M.V.Srinivasaiah.
b) The appellant filed the suit in O.S.No.564/2014 inter alia for partition of the land in Sy.No.44 allotted to his father - respondent No.1 contending that after the partition, which is recorded on 10.03.1997 in writing as a Panchayath Parikath, the brothers, viz., his father and Sri M.V.Srinivasaiah entered into a subsequent arrangement in the year 1998 identifying the lands allotted to them in Sy.No.44 in different portions. The respondent Nos.2 and 3 claiming that they had the benefit of power of attorney executed by the respondent No.1 transferred the suit schedule lands in favour of the respondent No.4 under the sale deed 25.02.2006. The appellant contended inter alia that one of the suit schedule properties viz., the land measuring 6 acres 35 guntas in Sy.No.44, being ancestral properties, the respondent No.1 (father) could not have executed such power of attorney, and in fact, the respondent No.1 has not executed such power of attorney. Therefore, the sale deed dated 25.2.2006 executed by the respondent No.1 in favour of the respondent No.4 would not bind the appellant’s share in Sy.No.44 measuring 6 acres 35 guntas.
5. The appellant examined himself as PW.1 and marked different exhibits which include the genealogical tree, mutation extracts, record of rights (RTC) and certified copy of the sale deed dated 25.2.2006 in favour of the respondent No.4 The respondent Nos.1 and 2 were served, but did not file their written statement, and they also did not participate in the proceedings. The other respondents remained exparte. The trial Court on appreciation of the evidence concluded that the appellant was not able to establish his right in the land in Sy.No.44, because though the appellant had contended that there was a subsequent arrangement modifying the earlier partition, the appellant had not produced any document in proof thereof. In the absence of any evidence as regards the subsequent arrangement as contended, the appellant’s case could not be accepted. The trial Court also concluded that the appellant had not included the other properties owned the family and which were the subject matter of the partition and the asserted subsequent arrangement. As such, the appellant cannot succeed in the suit.
6. The appellate Court decreed the suit insofar as the residential property (the other suit schedule property) because the appellate Court was of the opinion that there cannot be any dispute about the appellant being entitled for a share in the residential property. The appellate Court while considering the points formulated for consideration as regards whether the appellant was able to prove that the land in Sy.No.44 was ancestral property and that he was entitled for relief as claimed, concluded that the appellant had indeed established the suit schedule properties were joint family properties. However, as regards the point for consideration on whether the appellant was entitled for share in the land in Sy.No.44, the appellate Court concurred with the finding of the trial Court that the appellant had failed to establish that all the joint family properties were included in the suit, and because the appellant had not established that all the suit schedule properties were included in the suit, the trial Court was justified in dismissing the suit.
7. The learned senior counsel for the appellant submitted that it is undisputed that Sri K.Venkatappa owned only lands in Sy.Nos.44 and 45/3 other than the residential property and these properties were partitioned prior to 1997 as recorded in the Panchayath parikath dated 10.03.1997 and subsequently modified insofar as the different portions that two brothers had specifically identified in the shares allotted to them in the earlier partition. The brothers along with their family members, including the appellant, had transferred the land in Sy.No.45/3 under the sale deed dated 14.8.2003, and as such, the only property available for partition other than the residential property, as of the date of the suit, was the land in Sy.No.44. The arrangement in the year 1998 is evidenced by mutation register extract in MR No.1/1998-
99. The appellant being illiterate and having not been properly advised, placed on record neither the mutation extract in MR No.1/1998-99 nor the sale deed dated 14.8.2003 nor the other revenue records which established the appellant’s case. It was only after necessary due diligence on the dismissal of the appeal, the appellant has secured the aforesaid documents. As such, these documents are filed along with IA No.2/2018 filed under Order XLI Rule 27 of the Code of Civil Procedure.
8. The learned Senior Counsel for the appellant further submits that as there has been no effective and complete adjudication of the questions because the appellant had not produced the documents, it would be just and proper to set aside the impugned judgments and remand the appeal back to the appellate Court for reconsideration.
9. The learned counsel for the respondent No.1, does not contest the factual assertions made by the appellant in this appeal including the assertion as regards the reason for not producing the documents now produced along with IA No.2/2018 filed under Order XLI Rule 27 of the Code of Civil Procedure. Neither the learned counsel contests the prayer for setting aside of the impugned judgment and remanding the appeal to the appellate Court.
10. In the light of the above, the following substantial questions of law that would arise for consideration are:
a) Whether the appellant has made out necessary grounds to allow the application filed under Order XLI Rule 27 of the Code of Civil Procedure, and whether the documents now sought to be produced as additional evidence would be necessary for complete and effective adjudication of the dispute.
b. Whether it would permissible in law, and appropriate in the facts and circumstances of the case, to set aside the impugned judgment and decree and remand the appeal to the appellate Court for fresh consideration.
11. The appeal is admitted for consideration of the aforesaid substantial questions of law. The learned counsel for the parties have consented for disposal of the appeal on the aforesaid substantial questions of law. In the facts and circumstances of the case, this Court is of the considered view that it would be just and reasonable to answer these questions at the threshold, and if necessary, set aside the impugned judgments and remand the appeal to the appellate Court for reconsideration.
12. The question in the suit essentially being whether the appellant is entitled for a share in the land in Sy.No.44 is held against the appellant on the twin-fold that the appellant has failed to produce evidence to establish modification/arrangement post the partition evidenced by Panchayath parikath dated 10.03.1997 and the appellant has not included all the joint family properties in respect of which he could make a claim. The appellant has placed reliance upon the documents now produced with the application to buttress his case that the suit could not have been dismissed on either of the aforesaid twin fold. It is asserted that the subsequent modification/arrangement, which is also oral, is established by MR No.1/1998-99 and the subsequent revenue records. Further, all the joint family properties are included in the suit is established when this M.R extract is read in conjunction with the sale deed dated 14.8.2003 executed by all the members insofar as other properties held by them.
13. The revenue records pertaining to the land in Sy.No.44, though not all, are part of the records as evidence. The appellant relied upon these revenue records and the oral testimony to assert that he was entitled for a share even in the land in Sy No.44. Neither the trial Court nor the appellate Court has examined whether these could be conjointly read. Further, the Courts below should have examined these revenue records and the oral evidence to ascertain the factum of modification as asserted by the appellant and whether all the joint family properties were included in the suit. In the absence of such scrutiny, the finding of the courts below cannot be sustained.
14. The appellant has stated that he is not educated and he did not have custody of all the documents. It is only after the disposal of the appeal, he has been able to secure appropriate legal advise and on proper due diligence, he has been able to secure additional documents which bolster the evidence on record to substantiate his case. Though the reasons assigned in the affidavit may not satisfy the requirement of Order XLI Rule 27 (2)(aa) of the Code of the Civil Procedure, it is trite that in appropriate cases, when the appellate court is of the considered opinion that the additional documents are required for complete and effective adjudication, the appellate Court can grant leave to produce the additional documents under Order XLI Rule 27 (2)(b) of the Code of Civil Procedure. In the facts and circumstances of the case, this Court is of the considered view that the complete and effective adjudication would only be when the appellant’s case is considered in the light of the evidence already brought on record, and the additional documents now sought to be produced.
15. When an application under Order XLI Rule 27 of the Code of Civil Procedure is allowed, the Courts below will have to examine whether it would be appropriate to take recourse to the provisions of Order XLI Rules 28 or 29 of the Code of Civil Procedure. If recourse is had to the provisions of Order XLI Rules 28 or 29 of Code of Civil Procedure, and the questions are formulated with the appellate Court itself recording the evidence and deciding on the additional evidence, interest would be served and it would be within the jurisdiction of the appellate Court. In this case, there is no complete adjudication of the lis, and consideration of documents would involve adjudication on facts. Therefore, this Court is of the considered view that while setting aside the impugned judgments of the trial Court as well as the appellate Court and allowing the application under Order XLI Rule 27 of the Code of Civil Procedure, the appeal in R.A.No.52/2016 on the file of the III Additional District and Sessions Judge, Ramanagar, be restored to the board of the appellate court calling upon the appellate Court to formulate such points as would be necessary and to receive additional evidence on record and dispose of the appeal in accordance with law. Therefore, the substantial questions of law formulated for consideration are answered accordingly. For the foregoing, the following order:
a) The appeal is allowed in part and the impugned judgments and decrees are set aside. The appeal in R.A.No.52/2016 on the file of the III Additional District and Sessions Judge, Ramanagar, is restored allowing IA No.2/2018 and permitting the appellant to produce documents as per the list mentioned therein as additional documents in the appeal before the appellate Court.
b) The appellate Court is directed to formulate necessary points for consideration and record evidence and dispose of the appeal on merits in light of the provision of the Order XLI Rule 28/29 of the Code of Civil Procedure.
c) The appellant and the respondent No.1 shall appear before the appellate Court without further notice of the first hearing on 23.09.2019, and insofar as other respondents who have remained absent in this appeal, the appellate Court shall pass necessary orders to ensure that they are duly served.
SA Ct:sr Sd/- Judge