IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL NO.1271 OF 2014 BETWEEN:
SRI.B.RANGASHAMAIAH S/O LATE BANDEEVEERAPPA AGED ABOUT 72 YEARS R/AT BANAGARAHALLI VILLAGE DODDERI HOBLI MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT … APPELLANT (BY MR.A.LOURDU MARIAPPA, ADVOCATE) AND:
1. SRI.B.RANGAIAH S/O LATE BANDEVEERAPPA AGED ABOUT 74 YEARS R/AT BANAGARAHALLI VILLAGE DODDERI HOBLI, MADHUGIRI TALUK NOW R/AT NEAR GIRLS PRIMARY SCHOOL K.R.EXTENSION MADHUGIRI TOWN – 572 312 2. SRI. SANNA VEERAPPA S/O LATE BANDEEVEERAPPA AGED ABOUT 73 YEARS 3. ASHWATHAPPA S/O LATE DODDAVEERAPPA AGED ABOUT 53 YEARS 4. RAJANNA S/O LATE DODDAVEERAPPA AGED ABOUT 46 YEARS 5. BANDIVEERAPPA S/O LATE DODDAVEERAPPA AGED ABOUT 72 YEARS 6. SANNARANGAPPA S/O LATE DODDAVEERAPPA AGED ABOUT 41 YEARS 7. VISHWANATH S/O LATE DODDAVEERAPPA AGED ABOUT 38 YEARS 8. ERANNA S/O LATE DODDAVEERAPPA AGED ABOUT 35 YEARS RESPONDENT NOS.2 TO 8 ARE R/AT BANAGARAHALLI VILLAGE DODDERI HOBLI MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT 9. LAKSHMAMMA D/O LATE DODDAVEERAPPA AGED ABOUT 53 YEARS R/AT BADIGONDANAHALLI VILLAGE DODDERI HOBLI, MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT 10.SMT.MUDDUGANGAMMA W/O LATE KALVE RANGAPPA AGED ABOUT 58 YEARS 11.SMT.PUTTEERAMMA D/O LATE KALVE ERAPPA AGED ABOUT 43 YEARS 12.RANGAIAH S/O LATE KALVE ERAPPA AGED ABOUT 32 YEARS 13.PUTTARAJU S/O LATE KALVE ERAPPA AGED ABOUT 22 YEARS 14.CHIKKERAPPA S/O LATE PUTTARANGAPPA AGED ABOUT 52 YEARS 15.ERANAGPPA S/O LATE PUTTARANGAPPA AGED ABOUT 45 YEARS RESPONDENT NOS.10 TO 15 ARE R/AT BANAGARAHALLI VILLAGE DODDERI HOBLI MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT 16.SMT.PUTTEERAMMA D/O LATE PUTTARANGAPPA AGED ABOUT 53 YEARS R/AT BADIGONDANAHALLI VILLAGE DODDERI HOBLI MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT 17.SMT.NAGAMMA W/O RAMANNA AGED ABOUT 44 YEARS R/AT OBALALLI VILLAGE DODDERI HOBLI MADHUGIRI TALUK – 572 112 TUMKUR DISTRICT … RESPONDENTS (MR.G.S.BALAGANGADHAR, ADVOCATE FOR RESPONDENT NO.1 MR.HARISH H.V., ADVOCATE FOR RESPONDENT NOS.2 TO 17) ***** THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.4.2014 PASSED IN R.A. NO.120/2012 ON THE FILE OF 4TH ADDL. DISTRICT JUDGE, MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 6.6.2012 PASSED IN O.S. NO.3/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC, MADHUGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is by the defendant No.2. The respondent No.1 being the plaintiff filed a suit in the Court of Principal Senior Civil Judge, Madhugiri, seeking relief of declaration and permanent injunction in respect of ‘A’ schedule properties. Alternatively, he also sought relief of partition and separate possession of his 1/6th share in the entire ‘B’ schedule properties.
2. The plaintiff’s case is that one Bandiveerappa, his father and father of the defendant Nos.1 and 2, grandfather of the defendant Nos.3 to 9 by name Eranna, grandfather of the defendant Nos.10 to 13 by name Rangappa, father of the defendant Nos.15 to 18 and husband of defendant No.14 by name Puttarangappa, were cousins. Eranna and Rangappa died about 30 to 35 years back. The father of the defendant Nos.14 to 18 died on 30.12.2009. The father of the defendant Nos.3 to 9 by name Doddaveerappa and father of the defendant Nos.14 to 18 by name Puttarangappa died about 12 to 13 years back. During the lifetime of these persons, there had taken place an oral partition of the entire joint family properties. To evidence this oral evidence, there came into existence an unregistered partition deed on 13.6.1996. On the basis of this oral partition, the plaintiff succeeded to ‘A’ schedule properties. When he tried to get the khata of ‘A’ schedule properties transferred to his name, the defendant Nos.1 and 2 took objection for that. The revenue entries were made in the joint names of the plaintiff and the defendant Nos.1 and 2. Taking advantage of these joint entries, the defendants denied the right of the plaintiff in respect of ‘A’ schedule properties. In these circumstances, the plaintiff filed a suit for declaration and permanent injunction. He also prayed that in case the Court would come to a conclusion that the unregistered partition had not been acted upon, the partition of ‘B’ schedule properties be effected and 1/6th share be given to him.
3. The defendant No.2 did not contest the suit upon service of notice on him. He was placed ex-parte.
4. The defendant Nos.1 and 3 to 18 filed their written statement admitting that there had taken place an oral partition about 20 years back and also admitted that there came into existence an unregistered partition deed on 13.6.1996. Their specific contention was that the suit items 1, 2 and 6 to 16 fell to the share of the plaintiff and that items 4 and 5 were not allotted to the share of the plaintiff’s father. With respect to these two properties there was a dispute between the defendant Nos.1 and 2 and the third parties, namely, Dasappa, Govindappa and Giriyappa before the Land Tribunal, Madhugiri. The Land Tribunal, granted occupancy rights in favour of the plaintiff and the defendant Nos.1 and 2. This order of Land Tribunal was challenged before the High Court. Further, it is stated in the written statement that item Nos.26 and 27 are the self acquired properties of 1st defendant. The plaintiff and other defendants do not have right over these two items.
5. The trial Court after evaluation of evidence came to the conclusion that in the partition that took place long ago, ‘A’ schedule properties fell to the share of the plaintiff. It also negatived the specific plea of the defendants 1, 3 to 18 that item Nos.4 and 5 of ‘A’ schedule were wrongly included in the partition. The trial Court decreed the suit of the plaintiff and granted the relief of declaration and permanent injunction.
6. Aggrieved by the judgment of the trial Court, 2nd defendant preferred an appeal in R.A.No.120/2012 before the 4th Additional District and Sessions Judge, Madhugiri. 1st defendant also filed an appeal in R.A.No.122/2012. The District Court passed a common judgment and dismissed both the appeals concurring with the findings of the trial Court. Hence the second appeal by the 2nd defendant.
7. The main argument of the appellant’s counsel is that 2nd defendant was placed ex-parte in the trial Court. Ex.P1 is an unregistered partition deed. It does contain the signature of the 2nd defendant. When the 2nd defendant disputes this document, the 1st Appellate Court should not have concurred with the findings of the trial Court. According to him, Ex.P1 has no evidentiary value as it is unregistered document and in support of his argument, he has placed reliance on the judgments of the Supreme Court in the case of NARENDRA KANTE VS. ANURADHA KANTE AND OTHERS (2010 AIR SCW 305) and in the case of M.N.ARYAMURTHY AND ANOTHER VS. M.D.SUBBARAYA SETTY ((1972) 4 SCC 1). Another point of argument is, just because defendant no.2 was placed ex-parte in the trial Court, it does not mean that the suit of the plaintiff should be decreed and in support of this argument, he places reliance on the judgment of this Court in the case of M.BASAVEGOWDA AND ORS. VS. SMT.SHIVALINGAMMA AND ORS. (AIR 2006 KAR 145).
Regarding interpretation of the document, he relies on the judgment of the Supreme Court in the case of Sk.BHIKAN S/O Sk.NOOR MOHD. VS. MEHAMOODABEE W/O Sk.AFZAL AND OTHERS (AIR 2017 SC 1243).
8. It is true that the Court need not decree the suit just because the defendant is placed ex-parte. Order VIII Rule 10 of CPC makes it very clear that the Court has to evaluate the evidence and pass appropriate orders even in case whether the defendant is placed ex-parte. It is also true that interpretation of a document also gives rise to substantial question of law and there is no second word about the proposition. But in this case the main document is Ex.P1, which is not a registered document. The said document does not contain the signature of the 2nd defendant. In the plaint, the plaintiff has given the reason that as to why the defendant did not put his signature on Ex.P1. On reading of Ex.P1, it is very clear that it is not a partition deed, it is just a document evidencing past partition i.e., it is a memorandum of partition. It is not as though defendant No.2 was not given any property when the partition took place. The properties described in ‘F’ schedule have been allotted to the 2nd defendant. It is not as though the 2nd defendant is not aware of these documents. When the plaintiff tried to get the katha transferred to his name on the basis of the oral partition evidenced by Ex.P1, defendant Nos.1 and 2 took objections and revenue proceedings were also initiated. If according to him partition had not taken place, nothing prevented him from filing a suit if he was not allotted any share. In these circumstances, inference that has to be drawn that he is aware of the partition and he is in possession of ‘F’ Schedule properties. For this reason, if the signature of 2nd defendant is not there on Ex.P1, it does not mean that he has not acted upon it. I am of the opinion that the judgments of Supreme Court in the cases of M.N.ARYAMURTHY and NARENDRA KANTE (supra) cannot be applied here.
9. He further argues that Ex.P1 contains 15 pages, of which first three pages are typed on non-judicial papers and rest of the matter is typed on white sheets and therefore he doubts the genuineness of this document.
10. Regarding this argument, it has to be stated that if white sheets are attached to stamp papers for executing a document; the whole document cannot be doubted. On the last page of the entire document, original signatures of the parties are forthcoming.
11. When he preferred an appeal, it appears that he did not give any reason that prevented him from appearing before the trial Court after receiving the summons. Having failed to contest the suit, he cannot put forward his own defence to assail the judgment of the trial Court. The first Appellate Court has rightly come to the conclusion that the 2nd defendant is bound by Ex.P1. This being the circumstances, substantial question of law does not arise for admitting this appeal. Appeal is dismissed.
Sd/- JUDGE AHB/Prs*