In The High Court Of Karnataka At Bengaluru DATED THIS THE 09TH DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 446 OF 2018 (par) Between:
1. KEMPANNA SON OF LATE POOJAPPA, AGED ABOUT 67 YEARS.
2. P. NARYANAPPA SON OF LATE POOJAPPA, AGED ABOUT 63 YEARS.
BOTH ARE RESIDING AT GORAVIGERE VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK – 560 049.
... APPELLANTS (BY SRI. R. SHAMA, ADVOCATE ) And:
1. N. MANJUNATHA SON OF LATE P. NARAYANAPPA, AGED ABOUT 55 YEAS, RESIDING AT KALKERE VILLAGE, K.R. PURAM HOBLI, BANGALORE EAST TALUK – 560 036.
2. N. SOMASHEKAR SON OF LATE P. NARAYANAPPA, AGED ABOUT 43 YEARS.
3. SIDDAMMA DAUGHTER OF LATE KEMPANNA, AGED ABOUT 72 YEARS.
4. LAKSHMAKKA DAUGHTER OF LATE KEMPANNA, AGED ABOUT 58 YEARS.
5. PILLA SIDDAMMA DAUGHTER OF LATE KEMPANNA, AGED ABOUT 66 YEARS.
6. NARAYANAMMA DAUGHTER OF LATE KEMPANNA, AGED ABOUT 62 YEARS.
7. MUNIYAMMA DAUGHTER OF LATE KEMPANNA, AGED ABOUT 72 YEARS.
RESPONDENT NO.2 TO 7 ARE RESIDING AT GORVIGERE VILLAGE, BIDARAHALLI HOBLI, BANGALORE EAST TALUK – 560 049.
(BY SRI. R.S. RAVI., ADVOCATE FOR SRI. V. CHANDRAPPA., ADVOCATE FOR R-1 VIDE ORDER DATED 21.08.2019 NOTICE TO R-2 TO R-7 IS DISPENSED WITH) ... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC. 100 R/W ORDER 42 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.12.2017 PASSED IN R.A.NO.266 OF 2012 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.10.2010 PASSED IN O.S.NO.1296 OF 2005 ON THE FILE OF THE ADDITIONAL II CIVIL JUDGE (JR.DN) BANGALORE RURAL DISTRICT BANGALORE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellants and the learned counsel for the caveator – respondent No.1. The notice to the other respondents is dispensed with at the risk of the appellants.
2. This appeal is by the defendant Nos.1 and 2 in O.S.No.1296/2005 on the file of the II Additional Civil Judge (Jr.Dn.), Bengaluru Rural District, Bengaluru (for short, ‘trial Court’). This suit in O.S.No.1296/2005 is filed by the respondent No.1 for partition of two immovable properties viz., the land in Sy.No.42, measuring 2 acres 11 guntas and the land in Sy.No.44/4, measuring 1 acre 17 gutnas situated at Goravigere village, Bidarhalli Hobli, Bengaluru East Taluk. The trial Court has decreed the suit granting to the respondent Nos.1 and 2 (the plaintiff and the defendant No.8) a common 1/3rd share in the aforesaid properties. The appellants have challenged the trial Court’s judgment in RA No.266/2012 on the file of the VII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (for short, ‘appellate Court’). Hence, this second appeal by the appellants.
3. The appellants have filed in this appeal an application under Order XLI Rule 27 of the Code of Civil Procedure (for short, ‘CPC’) seeking leave of this Court to produce the certified copies of five sale deeds as additional documents, and this application is also supported by additional affidavit filed on 23.8.2019. It is stated in the affidavits that the appellants, upon being served with the summons in the proceedings before the trial Court, entered appearance and filed written statement. However, they could not led evidence to substantiate their defence that there was neither joint family nor partible properties as the parties’ ancestors had entered into a partition many decades prior to the initiation of the suit and that they held different portions of land in Sy.No.42 of Goravigere village as their absolute properties in terms of the partition. The appellants were handicapped in producing necessary documents because they did not have the details of transfers which would establish the case of prior partition. The transactions were much prior to the initiation of the suit. They are illiterate and hail from a rural setting. However, after the disposal of the first appeal, they could secure the details of the transactions and the certified copies of the deeds of conveyance have been secured. It is also stated that their own title deed to the land in Sy.No.44/4 (the second of the suit schedule properties) was misplaced and as such, they could not even produce their own sale deed.
4. The controversy between the parties arises in the circumstances hereinafter stated, and for the purpose of convenience, the parties are referred to as they are arrayed before the trial Court.
5. There is no dispute that the propositus - Sri Siddappa was survived by his three sons - Sri Pillappa, Sri Poojappa and Sri Kempanna. The propositus as well as the aforesaid three sons are no more. It is also not in dispute that Smt.Malamma, wife of Sri Siddappa (the propositus) as well as the spouses of three brothers are no more. The plaintiff and the defendant No.8 (respondent Nos.1 and 2) claim under the eldest son-Sri Pillappa; the defendant Nos.1 and 2 (appellants) claim under the second son-Sri Poojappa and the defendant Nos.3 to 7 claim under the third son-Sri Kempanna. The plaintiff’s case is that the plaintiff and the defendants are members of a Hindu Undivided Joint Family and the defendant No.1 is the kartha of such family who is managing the affairs of the family. Both the lands in Sy.No.42 and Sy.No.44/4 of Goravigere village are the properties purchased out of the joint family nucleus in the name of the defendant No.1. There is no partition and though a Panchayath was convened to advise the defendant No.1, he refused to partition the properties.
6. The defendant Nos.1 to 5 filed their written statement denying the existence of the joint family and the joint enjoyment and possession of the aforesaid lands. They contended that there was an oral partition inter se the aforesaid three brothers viz., Sri Pillappa, Sri Poojappa and Sri Kempanna. In this partition, the land in Sy.No.42 of Goravigere was divided into three portions with each of the brothers taking about 30 and odd guntas. The land in Sy.No.44/4 of Goravigere village is the absolute property of the defendant No.1 and that he had purchased this property out of his earnings after such partition.
7. The plaintiff examined himself as PW.1 and marked different exhibits, including the sale deeds as Ex.P.2 and Ex.P.3 and RTCs as Exs.P.4 to P.11. The defendants did not lead evidence, either ocular or documentary. The trial Court, while answering the Issues which required the plaintiff to prove the existence of a Hindu Undivided Joint Family and that he was entitled for 1/3rd share along with his brother, concluded that the suit schedule properties are joint family properties because names of the aforesaid three brothers were shown in the revenue records and the defendants had not entered the witness box to establish their defence. The trial Court decreed the suit essentially on the ground that the unchallenged ocular and documentary evidence would suffice to conclude that the aforesaid lands were joint family properties and that the plaintiff and the defendant No.8 are entitled for 1/3rd share. The appellate Court confirmed the trial Court’s judgment because the appellants did not make any effort to substantiate their defence of prior partition or the land in Sy.No.44/4 of Goravigere village is the self acquired property of the defendant No.1.
8. The substantial question of law that arises for consideration in this appeal is, “a) Whether the appellants have established justifiable cause for allowing the application under Order XLI Rule 27 of CPC, and b) If the defendants have established justifiable reason to allow the application under Order XLI Rule 27 CPC, what would be appropriate course of action in the facts and circumstances of the case.”
The learned counsel for the appellants and the contesting respondents have been heard on the aforesaid substantial question of law, and with their consent the appeal is taken up for final disposal on the aforesaid substantial question of law.
9. There is no dispute that the parties to the proceedings claim under a common ancestor who was the undisputed owner of the land in Sy.No.42 of Goravigere village. But, the plaintiff contends that the defendant No.1, being the senior most member of the family, has been managing the affairs of the family and from the proceeds of the joint family the agricultural land in Sy.No.44 is purchased. On the other hand, the defendants, while admitting the relationship and the ownership of the land in Sy.No.42 of Goravigere village with the propositus, contend that there was a partition inter se the sons many decades back, and in that partition, the land in Sy.No.42 of Goravigere village is divided into three equal parts with each of the brothers taking one portion. It is after this partition, the other land viz., the land in Sy.No.44/4 of Goravigere village is purchased by the defendant No.1. However, the defendants have not led any evidence to substantiate their defence. They have now filed application under Order XLI Rule 27 of CPC seeking leave to produce the certified copies of five sale deeds. The defendants contend that with the aid of these sale deeds, the defendants will be able to establish that the three brothers, after the oral partition, have dealt with the respective portions under registered deeds and therefore, the very premise for the suit is fallacious.
10. Therefore, the controversy between the parties revolve round the questions, whether there was a partition inter se the brothers as contended by the defendants, and if indeed there was a partition, whether subsequent suit for partition would be maintainable. In the absence of proof of oral partition, the judgments by the Courts below would be just and reasonable. However, the defendants now seek leave to produce documents to justify oral partition.
11. It is submitted by the learned counsel for the contesting respondents that the elder son - Sri Pillappa transferred his portion of 30 and odd guntas in Sy.No.42 of Goravigere village in favour of Sri Chikkabyanna under the sale deed dated 9.10.1972 and the younger brother, Sri Kempanna purchased this extent from Sri Chikkabayanna under the sale deed dated 30.5.1973. The sale in favour of Sri Chikkabyanna and the subsequent sale in favour of Sri Kempanna from Sri Chikkabyanna would be subject to transfer of 15 ankanas (east to west 66 feet and north to south 30 feet) in favour of Sri Poojappa under whom the defendant Nos.1 and 2 claim title. The learned counsel also submits that Sri Poojappa for certain reasons transferred his extent of 30 and odd guntas in Sy.No.42 of Goravigere village in favour of Sri Munishamappa, but it was repurchased under the sale deed dated 19.11.1964. Thus, Sri Kempanna acquired ownership of 2 extents viz., one extent allotted to him in the oral partition and the another extent purchased by him under the sale deed dated 30.5.1973. Sri Poojappa retained 30 and odd guntas allotted to him in the oral partition and 15 ankanas, the residential property purchased by him from his elder brother - Sri Pillappa. This chain of transaction, which the learned counsel for the contesting respondents submits would establish the defence of prior partition. The other sale deed viz., the sale deed dated 28.6.1974 is that piece of evidence which would establish that the land in Sy.No.44/4 was purchased by the defendant No.1 after severance of the joint family. This evidence is also not on record, much less tested.
12. It is settled that the Courts must endeavor to see whether there is a complete adjudication of the counter claims to the immovable properties, and the appellate Court is invested with the jurisdiction for that purpose under Order XLI Rule 27 of CPC to receive additional evidence subject to the conditions prescribed therein. The Hon’ble Supreme Court in Union of India vs. Ibrahim Uddin and Another1 has held as follows:
1 (2012) 8 SCC 148 38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence.
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
This enunciation is also reaffirmed by the Hon’ble Supreme Court in A.Andisamy Chettiar vs. A. Subbaraj Chettiar reported in (2015) 17 SCC 713. The test, under the provisions of Order XLI Rule 27 (1)(b) of CPC, is whether the proposed evidence would enable pronouncement of judgment on the real controversy between the parties. The real controversy is already highlighted, and there is no adjudication on this controversy. In the facts and circumstances of the case as well as the reasons assigned by the defendants viz., the transactions being made many decades prior to the initiation of the suit and the defendants being illiterate were not able to access the necessary data and secure the certified copies, this Court is of the considered view that for the purpose of ensuring complete and effective adjudication of the counter claims to the properties, and pronounce judgement on the real controversy, it would be just and necessary to allow the applications. The first of the substantial question of law is answered accordingly.
13. It is settled that the appellate Court should in appropriate cases itself record additional evidence instead of remanding the matter for re-adjudication by the trial Court. This would essentially be so when an application under Order XLI Rule 27 is allowed. In fact, the provisions of Order XLI Rule 28 of CPC postulate that when an application under Order XLI Rule 27 of CPC is allowed, the appellate Court may take such evidence and direct the trial Court to take such evidence and sent to the appellate Court and when additional evidence is permitted to be taken on record, the appellate Court shall specify the points to which the additional evidence shall be confined.
14. In the present case, there is no real adjudication of real controversy and the judgements of the courts below are premised in the reasoning that uncontested evidence would suffice to grant a decree. This Court, therefore, is of the considered view that it would be appropriate to set aside the appellate Court’s judgment and restore the appeal in RA No.266/2012 on the file of the VII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, calling upon the appellate Court to receive the documents filed along with the application filed in this appeal under Order XLI Rule 27 of CPC as additional evidence and permit the appellants to lead necessary ocular evidence in support thereof with liberty to the respondent Nos.1 and 2 (the plaintiff and the defendant No.8) to lead rebuttal evidence.
15. This Court has not made any observation on merit and it is needless to observe that the appellate Court shall dispose of the appeal on merits strictly in accordance with law without being influenced by its earlier decision or any possible observation by this Court.
Therefore the following:
Order a) The appeal is allowed in part. The judgment and decree dated 7.12.2017 in R.A.No.266/2012 on the file of the VII Additional District and Sessions Judge, Bengaluru Rural District Bengaluru, is set aside and the appeal in RA No.266/2012 is restored to the board of the appellate Court allowing the application (IA No.2/2018) filed under Order XLI Rule 27 of CPC permitting the appellants to place the five sale deeds as additional documents.
b) The appellate Court shall formulate necessary issues/points for consideration and permit both the appellants and the contesting respondents to lead evidence/rebuttal evidence in support of their respective cases.
c) The appellate Court shall dispose of the appeal as expeditiously as possible but within an outer limit of one year from the date of receipt of certified copy of this order.
d) The appellants shall pay a sum of Rs.10,000/- as cost to the respondent No.1 on the first date of appearance before the appellate Court. The parties shall appear before the first appellate Court without further notice on 10.11.2019.
SA Ct:sr Sd/- Judge