IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO.536 OF 2017 BETWEEN:
MUNIYAPPA SON OF LATE VENKATAPPA, AGED ABOUT 73 YEARS RESIDING AT GUNDAMANTHA VILLAGE, KASABA HOBLI SRINIVASPUR TALUK-563 135.
(BY SRI. KALYAN R., ADVOCATE) AND:
SMT. NAREMMA W/O C. NARAYANAPPA AGED ABOUT 69 YEARS RESIDING AT VIVEKANANDA ROAD KUMBARA BEEDHI SRINIVASPUR TOWN - 563 135.
(BY SRI. N. MURALI, ADVOCATE) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 3.12.2016 PASSED IN RA NO.16 OF 2016 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., KOLAR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 30.11.2015 PASSED IN OS NO.65 OF 2013 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., C/C PRL. CIVIL JUDGE AND JMFC., SRINIVASPUR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant, the respondent and perused the appeal papers.
2. This appeal is filed by the defendant in O.S.No.65/2013 on the file of the Principal Civil Judge and JMFC at Srinivasapura (for short ‘the trial Court’). The respondent – plaintiff has filed the suit in O.S.No.65/2013 for partition of five agricultural lands situated in Gundamanatha village, Kasaba Hobli, Srinivasapura Taluk. The trial Court by its judgment dated 30.11.2015, has decreed the suit only insofar as the suit item Nos.2, 3 and 5 properties declaring that the respondent – plaintiff is entitled for ½ share in the properties. However, insofar as item Nos.1 and 4 of the suit schedule properties, the suit is dismissed. The appellant – defendant carried this judgment and decree in appeal in R.A.No.16/2016 on the file of the II Additional Senior Civil Judge & JMFC, Kolar. The appellant – defendant filed an application under Order XLI Rule 27 read with Section 151 of CPC, seeking leave of the Court to produce the mutation extract in M.R.No.64- 5/1995-96 as additional document. The appellate Court has rejected this application, modifying the trial Court’s judgment declaring that the respondent – plaintiff was entitled for 1/4th share, as against the ½ share declared by the trial Court in suit Item Nos.2, 3 and 5 properties. As such, the appellant – defendant has filed this second appeal.
3. The appellant – defendant and respondent – plaintiff are brother and sister. The appellant – defendant contested the suit asserting that the suit schedule properties were his self-acquired properties. The appellant asserted that the suit item No.1 was purchased by him under the sale deed dated 13.12.1966 and the suit item No.4 was granted to him in the year 1995. The Courts below have found that the suit item Nos.1 and 4 are the self-acquired properties of the appellant – defendant. The respondent – plaintiff has not called in question the dismissal of the suit as against item Nos.1 and 4 of the suit scheduled properties.
4. The learned counsel for the appellant – defendant submits that even the suit item Nos.2, 3 and 5 are appellant – defendant’s self-acquired properties. The appellant – defendant resided with Sri Chennappa, Sri Ramappa and Sri Chikka Lingappa, and in a partition amongst the family members of these three persons, the suit item Nos.2, 3 and 5 were allotted to him. It is because of such allotment in a partition amongst the family members of the aforesaid these persons, the Katha for these properties are made in his name pursuant to the mutation entry in M.R.No.64-5/95-96. The respondent – plaintiff produced RTCs which only speak of the Katha being made in the name of the appellant – defendant on succession without detailing the reasons for such change of Katha. The mutation entry in M.R.No.64-5/95-96 is a vital document, and necessary for the appellant – defendant to discharge the burden of establishing his defence. As such, the appellant – defendant filed an application under Order XLI Rule 27 of CPC. The Appellate Court has erred in rejecting the application on the ground that the appellant had not produced any document to establish the relationship with Sri.Chennappa, Sri.Ramappa and Sri.Chikka Lingappa, and without necessary evidence as regards the relationship between him and others, the said document would not be necessary for adjudication.
5. The learned counsel for the appellant – defendant argues that the substantial question of law for consideration in this appeal is, whether the Appellate Court could have rejected the application filed under Order XLI Rule 27 of CPC seeking leave to produce mutation entry in M.R.No.64-5/95-96 as additional evidence without examining the reasons assigned in the light of the provisions of Order XLI Rue 27 of CPC. One the other hand, the learned counsel for the respondent – plaintiff submits that the appellant – defendant did not take a plea that he had acquired rights to item Nos.2, 3 and 5 of the suit schedule properties in a partition amongst the family members of the aforesaid persons and there is no evidence in this regard. This is only a belated and futile effort by the appellant – defendant to introduce a new cause of action to avoid a share to the respondent – plaintiff even in these properties. As there is no plea or evidence to establish this new case now introduced, the appellate Court is justified in rejecting both the application and the appeal.
6. In the light of the rival contentions and in the facts and circumstances of the case, the substantial question of law proposed by the learned counsel for the appellant – defendant would arise for consideration. Accordingly, the following substantial question of law is formulated for consideration.
“Whether the Appellate Court could have rejected the application filed under Order XLI Rule 27 of CPC seeking leave to produce mutation entry in M.R.No.64-5/95-96 as additional evidence without examining the reasons assigned in the light of the provisions of Order XLI Rue 27 of CPC.”
However, given the nature of the dispute, and the substantial question that arises for consideration, the appeal is not only admitted for consideration of the aforesaid substantial question of law, but is also taken up for disposal with the consent of the counsel for both the parties.
7. The provisions of Order XLI Rule 27 of CPC enable a party to the appeal proceedings to file application seeking leave to produce additional evidence in the circumstances circumscribed thereunder. The appellate Court may allow additional evidence if the parties seeking leave to produce additional evidence are able to establish that they were not able to produce such evidence before the trial Court despite exercise of due diligence or such evidence was not within their knowledge or that the trial court unjustly kept out such evidence. The appellant – defendant in support of the application has stated that he did not know about the existence of Mutation Register extract in M.R.No.64-5/95-96 and therefore, he could not produce the document earlier. The appellate Court has not examined whether the reason offered by the appellant – defendant would suffice or meet the requirements contemplated under Order XLI Rule 27(1)(aa) of CPC. Even otherwise, it is settled that if appellate Court is of the considered view that a particular document or additional evidence would be necessary for complete adjudication of the dispute between the parties, the appellate Court in view of the provisions of Order XLI Rule 27(1)(b) of CPC, may permit additional evidence. The appellate Court, in dismissing the application under Order XLI Rule 27 of CPC, has not examined the application from these perspectives.
9. The appellant – defendant has asserted that the suit scheduled properties were his self acquired properties and of course, he has not delineated how the properties described item Nos.2, 3 and 5 would be his self acquired properties. The question whether the pleadings by the appellant – defendant would suffice to sustain a defence based on the additional document could also be examined after the application is considered in accordance with the law. In the considered opinion of this Court, the averment that the aforesaid properties are self-acquired properties would suffice to sustain a request to produce evidence under Order XLI 41 Rule 27 of CPC. Therefore, the appellate Court could not have rejected the application under Order XLI Rule 27 of CPC on the ground that there is no pleadings as regards the defence taken to justify that the suit item Nos.2, 3 and 5 are also the appellant’s self- acquired properties. Importantly, the appellate Court has erred in rejecting the application filed under Order XLI Rule 27 of CPC without examining whether the request for allowing the application could be allowed in the light of the provisions thereof.
10. Therefore, it would be just and reasonable to set-aside the impugned judgement and decree and restore the appeal for reconsideration of the application filed by the appellant – defendant under XLI Rule 27 of CPC. It would also be necessary to observe that if indeed the appellate Court, upon reconsideration of the application under Order XLI Rule 27 of CPC, is of the opinion that the application ought to be allowed, the appellate Court shall have recourse to the provisions under Order XLI Rule 28 & 29 of CPC. As such, the substantial question of law is answered in favour of the appellant, and the following order:
1. The appeal is allowed, and the impugned judgment and decree dated 03.12.2016, in R.A.No.16/2016 is set aside and the appeal is restored to the Appellate Court to reconsider the application filed under Order XLI Rule 27 of CPC in the light of the observations made by this Court and thereafter proceed in accordance with law.
2. The Appellate Court shall decide the application under Order XLI Rule 27 of CPC/the appeal expeditiously within an outer limit of Nine (9) months from 05.9.2019.
3. Neither the appellant – defendant nor the respondent – plaintiff shall seek unnecessary adjournment.
4. The parties shall appear before the first Appellate Court without further notice of first hearing on 05.09.2019.
SD/- JUDGE nvj