IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1264/2006 C/W REGULAR SECOND APPEAL NO.1263/2006 AND REGULAR SECOND APPEAL NO.1276/2006 R.S.A.No.1264/2006 BETWEEN:
SRI.SHIVANNA S/O LATE GOWDANAVARA MARIYAPPA AGED ABOUT 59 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT ... APPELLANT (BY SRI.R.VIJAYA KUMAR, ADVOCATE) AND:
M.SONNAPPA S/O LATE GOWDANAVARA MARIYAPPA AGED ABOUT 61 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT ...RESPONDENT (BY SRI.G.D.ASWATHANARAYANA, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 PASSED IN R.A.NO.158/2002 (OLD NO.67/2000) ON THE FILE OF THE CIVIL JUDGE (SR.DN), DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.02.2000 PASSED IN O.S.NO.204/1979 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, DODDABALLAPUR.
R.S.A.No.1263/2006 BETWEEN:
SRI.SHIVANNA S/O SRI. GOWDANAVARA MARIYAPPA AGED ABOUT 53 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU RURAL DISTRICT ... APPELLANT (BY SRI.R.VIJAYAKUMAR, ADVOCATE) AND:
1. M.SONNAPPA S/O SRI. GOWDANAVARA MARIYAPPA AGED ABOUT 55 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU DISTRICT - 561203 2. MARAPPA S/O SRI. GOWDANAVARA MARIYAPPA AGED ABOUT 54 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU DISTRICT – 561 203 3. KRISHNAPPA S/O SRI. GOWDANAVARA MARIYAPPA AGED ABOUT 51 YEARS R/AT CHENNAPURA VILLAGE TUBUGERE HOBLI DODDABALLAPUR TALUK BENGALURU DISTRICT – 561 203 ...RESPONDENTS (BY SRI.G.D.ASWATHANARAYANA, ADVOCATE FOR R1; SRI.R.SHYAMA, ADVOCATE FOR R3; R2 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 PASSED IN R.A.NO.105/2002 (OLD NO.235/2001) ON THE FILE OF THE CIVIL JUDGE (SR.DN), DODDABALLAPUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 31.10.2001 PASSED IN O.S.NO.56/1981 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, DODDABALLAPUR.
R.S.A.No.1276/2006 BETWEEN:
SRI.SONAPPA S/O GOWDANAVARA MARIYAPPA AGED ABOUT 58 YEARS R/AT CHENNAPURA VILLAGE TOOBGERE HOBLI DODDABALLAPUR TALUK – 562 102 ...APPELLANT (BY SRI.G.D.ASWATHANARAYANA , ADVOCATE) AND:
1. SHIVANNA AGED ABOUT 56 YEARS 2. KRISHNAPPA AGED ABOUT 52 YEARS 3. MARAPPA AGED ABOUT 50 YEARS R1 TO R3 ARE SONS OF LATE GOWDANAVARA MARIYAPPA MAJOR, R/AT CHANNAPURA VILLAGE TOOBGERE HOBLI, DODDABALLAPUR TALUK – 562 102 ...RESPONDENTS (BY SRI.R.VIJAYA KUMAR, ADVOCATE FOR R1; SRI.R.SHYAMA, ADVOCATE FOR R2; R3 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006 PASSED IN R.A.NO.105/2002 (OLD NO.235/2001) ON THE FILE OF THE CIVIL JUDGE (SR.DN), DODDABALLAPUR, PARTLY ALLOWING THE APPEAL AND PARTLY MODIFYING THE JUDGMENT AND DECREE DATED 31.10.2001 PASSED IN O.S.NO.56/1981 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC, DODDABALLAPUR.
THESE APPEALS COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These appeals arise out of the judgment and decree dated 12.01.2006 passed by the Senior Civil Judge, Doddaballapura in R.A.Nos.105/2002 and 106/2002 and 158/2002. R.A.No.105/2002 and R.A.No.106/2002 were the appeals of plaintiff and the first defendant respectively against the judgment and decree dated 31.10.2001 in O.S.No.56/1981. Whereas, R.A.No.158/2002 was the plaintiff’s appeal against the judgment and decree dated 29.02.2000 in O.S.No.204/1979.
2. The brief facts of the case are that one Mariyappa Gowda had four sons namely Sonnappa, Chikkasonnappa, Shivanna and Krishnappa. Shivanna is the plaintiff in O.S.No.204/1979 as well as in O.S.No.56/1981. He filed O.S.No.204/1979 against the first defendant – Sonnappa his eldest brother for declaration that land bearing Sy.No.37 measuring 34 guntas situated at Doddarayappanahalli Village is his absolute property and for permanent injunction.
3. Further, he filed O.S.No.56/1981 against his brothers Sonnappa (defendant No.1), Chikkasonnappa (defendant No.2) and Krishnappa (defendant No.3) for partition and separate possession. The subject matter of the suit in O.S.No.56/1981 were plaint A and B schedule properties. Plaint A schedule properties were in all 14 immovable properties consisting of land and house properties. Plaint B schedule properties were the movable properties.
4. The plaintiff contended that all the suit schedule properties in O.S.No.56/1981 were joint family properties and he is entitled to equal share in them along with the defendants.
5. Defendants in O.S.No.56/1981 admitted the relationship and also the nature of plaint schedule properties, but contended that plaint B schedule properties did not exist. Defendant No.1 further contended that item No.A to F properties shown in written statement para 4 were also the joint family properties and unless the plaintiff includes them in the suit, partition cannot be effected and share cannot be given to the plaintiff.
6. The plaintiff filed his rejoinder claiming that the properties shown in para 4 of the written statement were his absolute properties and he has already sold some of them.
7. Admittedly, written statement para 4A to 4F properties were purchased in the name of the plaintiff by his father Mariyappa on 21.06.1964. At that time, the plaintiff was hardly 12-13 years old. Still the plaintiff contended that he was doing coolie work and those properties were acquired out of his funds and since he was minor, his father joined in the execution of the sale deed.
8. The vendor of Sy.No.37/4 was one Doddamuniyappanna. After selling the properties to the plaintiff in the year 1964, he sold Sy.No.37/4 again to one Doddamuniyappa under the sale deed dated 19.06.1969. He in turn sold the said property to first defendant – Sonnappa under the registered sale deed dated 06.01.1975. Therefore, in O.S.No.204/1979, the plaintiff sought for declaration of his title claiming that the subsequent sale deeds were illegal etc.
9. The trial Court held that at the time purchase of written statement para 4A to 4F properties plaintiff was hardly 12-13 years old and his case that he contributed funds is unbelievable. Therefore, dismissed O.S.No.204/1979. In the light of that the trial Court decreed O.S.No.56/1981 on 31.10.2001 in respect of plaint schedule properties as well as written statement para 4A to 4F properties holding that those properties were purchased under the sale deed dated 21.06.1964 out of joint family funds.
10. Against the judgment and decree in O.S.No.204/1979 plaintiff preferred R.A.No.
158/2002 before the Senior Civil Judge, Doddaballapur. Against grant of decree in O.S.No.56/1981 in respect of written statement para 4A to 4F properties plaintiff preferred R.A.No.105/2002. Against the grant of decree for partition in plaint schedule properties, defendant No.1 filed R.A.No.106/2002 before the Additional Senior Civil Judge, Bengaluru.
11. The First Appellate Court disposed of R.A.No.105/2002 and 106/2002 by common judgment dated 12.01.2006. The First Appellate Court dismissed R.A.No.158/2002 also on the same day. The First Appellate Court under those judgments and decree confirmed the findings and reasoning of the trial Court that plaintiff at that tender age could not have contributed funds for acquisition of property under the sale deed dated 21.06.1964 and therefore, those properties were the joint family properties. However, in the appeals against the partition decree, the First Appellate Court granted decree in plaint schedule properties and only in written statement 4A property holding that defendants have failed to prove the availability of written statement 4B to 4F properties for partition.
12. As already pointed out the plaintiff has filed R.S.A No.1264/2006 against the judgment and decree of the First Appellate Court in R.A.No.158/2002 and R.S.A.No.1263/2002 against the judgment and decree in R.A.No.105/2002. The first defendant has filed R.S.A No.1276/2006 against the judgment and decree in R.A.No.106/2002.
13. Before this Court in R.S.A No.1276/2006, the appellant/first defendant has filed I.A.No.1/2008 for production of document by way of additional evidence.
14. When the matter was being heard, the appellant in R.S.A.No.1276/2006 filed I.A.No.1/2019 under Order 1 Rule 10(2) of CPC to implead one Ramaanjinappa as respondent No.4 in the appeal on the ground that pending this appeal plaintiff/respondent No.1 has sold Sy.No.16/2 written statement para No.4 item ‘c’ property to the proposed respondent.
15. The above said interim applications are taken up together for disposal along with the main appeal. This Court, admitted the above appeals to hear on the following substantial questions of law:
1) Whether the finding of the First Appellate Court that written statement para 4A property is a joint family property of plaintiff and defendants suffers perversity?
2) Whether the finding of the First Appellate Court that the defendants failed to prove the availability of written statement para 4B to F properties for partition suffers perversity?
16. Sri Vijaykumar the learned counsel representing the plaintiff seeks to assail the impugned judgments on the following grounds:
(i) The sale deed stood in the name of the plaintiff. Even assuming that the plaintiff had no income, the defendants were required to show that the father purchased the property for the benefit of the joint family, which was not done;
(ii) The very fact of the vendor selling the property again to Doddamuniyappa and plaintiff’s father not questioning that sale deed or claiming any interest in the property till his death in 1974 goes to show that the properties were not acquired for the benefit of the family.
17. Per contra, Sri.G.D.Ashwath Narayana and Sri R.Shyama learned counsel representing the defendants seek to assail the judgment and decree challenged by them in their appeal on the following grounds:
(i) The First Appellate Court was not right in dismissing the defendants’ claim for written statement para Nos.4B to F properties though the plaintiff had not produced any records in proof of the alienations;
(ii) The First Appellate Court was not justified in holding that the availability of those properties were not proved;
(iii) The claim of the defendants could not have been dismissed on technical grounds;
(iv) Though the documents relating to written statement item Nos.B to F were not produced, to rectify that short coming the defendants have filed I.A.No.1/2008. Therefore, that shall be taken on record and decree be granted in respect of those properties.
18. In support of his contentions, Sri.R.Shyama, learned counsel relies upon the following judgments:
(i) Shivappa vs Keriyamma1 (ii) S.K.Lakshminarasappa, since deceased by L.Rs. vs. Sri.B.Rudraiah and Others2 1 ILR 1996 KAR 263 2 ILR 2012 4129 19. In Gurnam Singh v. Lehna Singh3 the Hon’ble Supreme Court referring to its several other earlier judgments regarding the scope of interference in the second appeal in para 26 of the judgment laid down the ratio as follows:
“26. .......As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or 3 (2019) 7 SCC 641 (ii) Contrary to the law as pronounced by the Apex Court; or (iii) Based on inadmissible evidence or no evidence.”
(Emphasis supplied) 20. In the light of the aforesaid judgments, this Court has to see whether the impugned judgment and decree of the First Appellate Court are contrary to any mandatory provisions of the applicable law, contrary to the law pronounced by the Apex Court or based on inadmissible evidence or no evidence.
21. There is no dispute regarding the relationship between the parties. The plaintiff in both the suits and the defendants are the sons of one Gowdenavara Mariyappa. There is also no dispute that the properties shown in plaint schedule ‘A’ (immovable property) were the joint family properties of plaintiff, defendant and late Mariyappa.
22. It was also not disputed that the properties shown in written statement para No.4 in O.S.No.56/1981 were purchased on 21.06.1964 and the sale deed stood in the name of the plaintiff. In that sale deed the plaintiff was represented through his guardian/father Mariyappa. At the time of the said sale, the plaintiff was 13 years old.
, 23. While acquiring the properties under the sale deed of 1964, plaintiff, defendants and Mariyappa lived in the Joint Family. The Family owned the immovable property shown in the plaint schedule ‘A’ in O.S.No.56/1981. Out of those properties, the land bearing Sy.No.37 measuring 34 guntas which is the subject matter of O.S.No.204/1979 was sold by the vendor Doddamuniyappanna to one Doddamuniyappa on 19.06.1969. From the said Doddamuniyappa, defendant No.1-Sonappa purchased the said property under the registered sale deed dated 06.01.1975.
24. Plaintiff contended that he was the absolute owner of the properties purchased under 1964 sale deed and subsequent sale deeds executed by Doddamuniyappanna, Doddamuniyapa were illegal and sought declaration of his title and permanent injunction.
25. The defendants contended that the properties under the sale deed dated 1964 were acquired out of the joint family funds and they were the joint family properties.
26. As rightly held by the Courts below the plaintiff was not able to show any independent income of himself to acquire those properties. As admitted by himself the joint family possessed certain properties capable of generating the income and therefore, the joint family had nucleus to purchase the properties. Under such circumstances, the Courts below held that the properties acquired under the sale deed of 1964 were the joint family properties. The said concurrent findings of the Courts below do not suffer any perversity. Therefore, R.S.A.No.1264/2006 shall fail.
27. R.S.A.No.1263 and 1276/2006 arise out of O.S.No.56/1981. In that suit plaintiff claimed partition in plaint schedule ‘A’ immovable property and plaint schedule ‘B’ movable property. The defendants contended that the properties purchased under the sale deed dated 1964 were also joint family properties and unless those properties were included in the suit, the partition could not be granted. The defendants admitted that plaint schedule ‘A’ immovable properties were the joint family properties and they disputed the existence of plaint schedule ‘B’ movable properties.
28. The defendants in para No.4 of the written statement included item Nos.A to F properties as the properties purchased under the sale deed of 1964. The plaintiff filed rejoinder to the said written statement claiming that they were his absolute properties and he has already sold some of those properties.
29. The judgment and decree in O.S.No.204/1979 was inter partes. The trial Court taking note of the said judgment and decree held that written statement para 4A to F properties were also joint family properties and decreed the suit in respect of plaint schedule A and written statement para 4A to F properties. The trial Court in the decree said that unless the plaintiff blends those properties, partition cannot be effected.
30. The plaintiff challenged the said judgment and decree before the First Appellate Court in R.A.No.105/2002 and defendant No.1 challenged the said judgment and decree in R.A.No.106/2002. The First Appellate Court dismissed R.A.No.106/2002 and partly allowed R.A.No.105/2002 holding that the defendants had failed to prove the availability of the written statement B to F properties and therefore, the suit has to be decreed in respect of plaint schedule ‘A’ property and written statement para 4A property alone.
31. Substantial question of law No.1 relates to written statement para 4A property and substantial question of law No.2 relates to written statement para 4B to 4F properties. Since this Court already rejected the claim of the plaintiff regarding the absolute ownership of the plaint schedule para 4A property, substantial question of law No.1 has to be answered in affirmative.
32. At this juncture it has to be noted that though the plaintiff claimed that the properties purchased in the year 1964 were the absolute properties, he had not challenged the sale deeds executed by Doddamuniyappanna in favour of Doddamuniyappa on 19.06.1969 and the sale deed executed by Doddamuniyappa in favour of defendant No.1 on 06.10.1975 within three years of his attaining majority.
33. So far as proof of availability of written statement para B to F properties, despite the plaintiff contending that he has sold some of those properties the defendants did not produce any material before the Courts below to show the availability of those properties for partition. In a suit for partition all the parties stand on the pedestal of the plaintiffs. When the defendants claimed partition in written statement para 4A to F properties they were required to prove their availability for the partition.
34. So far as written statement para 4A property, there was no dispute about the availability of the property. Therefore, the First Appellate Court upheld the decree of the trial Court to that effect.
35. So far as written statement para 4B to F properties, not even the relevant revenue records were produced. Even the number of properties were not stated in the written statement initially. Those numbers were introduced later by way of amendment. Even after amending the written statement, the records pertaining to those properties were not produced.
36. Section 132 of the Karnataka Land Revenue Act requires the party laying claim on a property to produce the revenue records pertaining to that.
37. Relying on the single Bench Judgment of this Court in Shivappa’s case, learned counsel for the defendants argued that such non-production of the revenue records does not entail the dismissal of the suit and if the Court does not raise objection regarding that at the initial stage that cannot be considered at the later stage.
38. The said judgment is rendered with referring to Section 132 of the Karnataka Land Revenue Act, 1964 and Section 99 of the Code of Civil Procedure, 1908.
Section 132(1) and (2) of the Land Revenue Act, 1964 read as follows:
“132. Certified copies of records to be annexed to plaint or application.─(1) The plaintiff or applicant in every suit or application, as hereinafter defined relating to land situated in any area to which this Chapter applies, shall annex to the plaint or application, a certified copy of any entry in the Record of Rights or Register of Mutations relevant to such land.
(2) If the plaintiff or applicant fails so to do for any cause which the court deems sufficient, he shall produce such certified copy within a reasonable time to be fixed by the Court and if such certified copy is not so annexed or produced, the plaint or application shall be rejected, but the rejection thereof shall not of its own force preclude the presentation of a fresh plaint in respect of the same cause of action or of a fresh application in respect of the same subject matter with a certified copy annexed.”
(Emphasis supplied) 39. Section 99 of the Code of Civil Procedure, 1908 reads as follows:
“99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.─No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party”
(Emphasis supplied) 40. Reading to Section 99 of CPC makes it clear that the decree cannot be reversed or varied on technical defect, if such technical defect is not affecting the merits of the case. Here the defendant had laid a claim for partition of certain properties. If he failed to prove the existence of those properties that was affecting the merits of the case. Therefore, it cannot be said that non-production of the relevant documents was a defect not affecting the merits of the case. Therefore, the judgment in Sivapppa’s case is not applicable.
41. It is submitted that to show the existence of written statement para 4B to F properties, the defendants have filed I.A.No.1/2008. Order 41 Rule 27 of CPC enables the Court to receive additional evidence that too in a second appeal stage only if the appellant satisfies that the application is in conformity with the conditions mentioned in the said provision. The documents at the appellate stage can be received, if the applicant shows that despite due diligence he could not produce such documents before the trial Court, or if such documents were required by the Court for adjudication of the matter or the trial Court had declined to receive such evidence.
42. It is not the contention of the defendants that the trial Court refused to receive such evidence. Per contra, in the affidavit filed in support of the application, defendant No.1 contends that though he had produced some of the documents before the trial Court they were not marked. At another breath he said that he had produced those documents in O.S.No.156/2000 another suit. Therefore, they could not be marked in the suit in question. Thus it is not a case of the trial Court declining to receive evidence.
43. So far as the due diligence, the documents sought to be produced are all public documents, the certified copies of which could be secured at any time. Thus it is clear that the documents were not beyond the reach of the defendants. Therefore, the application does not satisfy that test also.
44. So far as the requirement of the Court the documents do not belong to written statement para B to F properties. Some of them do not match the description mentioned in the written statement. Further, the defendants themselves have filed I.A.No.1/2019 claiming that plaintiff has sold the property to the proposed respondent No.4 under the sale deed dated 23.09.2006. Under such circumstances, this Court does not find any ground to receive the additional evidence.
45. Further, since the alleged sale was pending this appeal, such acquisition is subject to lis pendence principle. Purchaser is bound by the decree that may be passed in these cases. Therefore, there is no need to implead the proposed party. Therefore, I.A.Nos.1/2008 and 1/2019 are dismissed.
46. The finding of the First Appellate Court that written statement para 4A property is joint family property and that the defendants failed to prove the availability of the written statement para 4B to F properties do not suffer any perversity. Answering the substantial questions of law accordingly all the appeals are dismissed.
In view of the dismissal of the appeals any other pending I.As stood disposed of.
Sd/- JUDGE UN/KG