Basalingappa And Aors vs Madivalappa And Ors
2021 Latest Caselaw 5754 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 8TH DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

               RSA No.200211/2019

BETWEEN

1.    BASALINGAPPA S/O RACHAPPA PADASHETTY
      AGE: 69 YEARS, OCC: AGRICULTURE
      R/O BINJALABHAVI, TQ:SINDAGI
      DIST: VIJAYAPUR

2.    MAHESH S/O BASALINGAPPA PADASHETTY
      AGE: 31 YEARS OCC: AGRICULTURE
      R/O BINJALABHAVI, TQ:SINDAGI
      DIST: VIJAYAPUR

3.    SURESH S/O BASALINGAPPA PADASHETTY
      AGE: 21 YEARS, OCC: AGRICULTURE
      R/O BINJALABHAVI, TQ:SINDAGI
      DIST: VIJAYAPUR
                                      ...APPELLANTS

(BY SRI MAHADEV S. PATIL, ADVOCATE)

AND

1.    MADIVALAPPA S/O BASALINGAPPA
      PADASHETTY, AGE: 45 YEARS
      OCC: AGRICULTURE, R/O BINJALABHAVI
      TQ:SINDAGI, DIST: VIJAYAPURA
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2.   VIRABHADRA S/O RACHAPPA PADASHETTY
     (SINCE DECEASED BY HIS LRS.,)

2A). SHANKREMMA W/O VIRABHADRA PADASHETTY
     AGE: 67 YEARS, OCC: HOUSEHOLD WORK
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR

2B). SHARANAMMA W/O DEVENDRA ADAKI
     AGE: 57 YEARS, OCC: HOUSEHOLD WORK
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR

2C). RACHAPPA S/O VIRABHADRA PADASHETTY
     AGE: 53 YEARS, OCC: AGRICULTURE
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR

2D). NIRMALA W/O CHANNAPPA GULAGI
     AGE: 52 YEARS, OCC: HOUSEHOLD WORK
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR

3.   NINGARAJ S/O CHANNAPPA PADASHETTY
     AGE: 31 YEARS, OCC: AGRICULTURE
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR

4.   SAROJANI @ NIRMALA W/O ANAVEERAPPA
     ANGADI, AGE: 32 YEARS, OCC: AGRICULTURE
     R/O BINJALABHAVI, TQ:SINDAGI
     DIST: VIJAYAPUR
                                    ...RESPONDENTS

(BY SRI NARENDRA M. REDDY, ADVOCATE FOR R1;
R2(A) SERVED; NOTICE TO R2(B) TO (D), R3 & R4 IS
DISPENSED WITH)
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     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
PRAYING THAT THE JUDGMENT AND DECREE PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC AT SINDAGI IN
R.A.NO.9/2017 DATED 05.04.2019 MAY KINDLY BE SET
ASIDE AND CONFIRM THE JUDGMENT AND DECREE
PASSED BY CIVIL JUDGE AND JMFC COURT AT SINDAGI IN
O.S.NO.354/2008 DATED 22.06.2017 IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                         JUDGMENT

The present appeal is filed by the defendant Nos.1, 3

and 4 aggrieved by the judgment and order dated

05.04.2019 passed in R.A.NO.9/2017 on the file of Senior

Civil Judge and JMFC, Sindagi at Sindagi (for short 'first

appellate Court'), in and by which, the first appellate Court

while setting aside the judgment of the trial Court in

O.S.No.354/2008 dated 22.06.2017 had held that plaintiff

was entitled half share in all the suit properties.

2. Brief facts leading up to filing of the present

appeal are that the plaintiff, who is the son of defendant

Nos.1 and 2 (defendant No.2 stated to have passed away

during the pendency of the first appeal) filed a suit seeking

partition and separate possession of the suit properties as

described in the plaint, consisting three landed properties

bearing Survey No.93 and RS No.102/1B/1, RS No.60/1B

and RS No.60/1B/2 and two house properties bearing

No.VPC No.348 abd 479/A of Binjalabhavi village, Kalakeri

Gram Panchayat. It is the case of the plaintiff that the suit

properties are the joint family ancestral properties and that

he was entitled for 1/3rd share in the suit properties.

3. Defendant No.1 filed written statement

denying the claim of the plaintiff on the premise that there

was already a partition between the plaintiff and defendant

No.1. That one of the house properties was a self acquired

property of defendant Nos.3 and 4 and that the land in

Survey No.93 measuring 19 acres 37 guntas was

belonging to defendant No.1 he having acquired the same

in terms of a registered deed of gift executed in the year

1974 by one Gourawwa the maternal aunt of the

defendant No.1, being elder sister of his mother.

4. The Trial Court framed the following issues:

1. Whether plaintiff proves that himself and defendant No.1 and 2 have constituted joint family and suit properties are joint family properties?

2. Whether plaintiff proves that himself and defendants are in joint possession and enjoyment of suit properties?

3. Whether plaintiff proves that ME No.9226 and 8752 are illegal and not binding upon him?

4. Whether defendant No.1 proves that suit property bearing R.S.No.93 is gifted property and plaintiff has no share in the suit property?

5. Whether defendant No.1 proves earlier partition between himself, plaintiff and other defendant No.2 to 4 on 18.10.1995?

6. Whether defendant No.1 proves that suit property VPC 479 was purchased by defendant Nos.3 and 4 from Basavantray Gouda Gurubasappa patil on 15.11.1995 for Rs.6,000/- by registered sale deed and they are absolute of said property?

7. Whether suit of plaintiff is bad for non joinder of necessary party?

8. Whether suit of plaintiff is barred by limitation?

9. Whether plaintiff is entitled to the reliefs as claimed in the plaint?

10. Whether defendant No.2 is entitled to the reliefs claimed in the counter claim?

11. Whether defendant No.1 is entitled to the compensatory cost of Rs.5,000/-?

12. What order decree:

Preliminary issue:

1. Whether Court fee paid on plaint is proper?

2. Whether this Court has pecuniary jurisdiction to try this suit?

5. The Trial Court on consideration of evidence

partly decreed the suit allotting 1/3rd share to the plaintiff

and defendant Nos.1 and 2 in the suit properties. The Trial

Court declined the share in Survey No.93, on the premise

that defendant No.1 had proved the gift in his favour.

Aggrieved by this portion of the judgment and decree, the

plaintiff filed regular appeal in R.A.No.9/2017 before the

first appellate Court. The first appellate Court allowed the

said appeal by its impugned judgment and order dated

05.04.2019 holding that defendant No.1 had failed to

prove that gift deed in a manner known to law. Defendant

Nos.1, 3 and 4 aggrieved by the said judgment and decree

are before this Court.

6. On going through the records, the following

substantial question of law arises for consideration in this

matter:

"Whether the first appellate Court was justified in allowing the appeal for defendant No.1 not producing the original deed of gift despite a specific admission by the plaintiff with regard to execution of gift by Gourawwa in favour of defendant Nos.1, 5 and 6?

7. It is necessary at this juncture to mention that

being aggrieved by the judgment and decree of the trial

Court passed in O.S.No.354/2008 to the extent of granting

share to the plaintiff in other suit schedule property,

defendant Nos.1, 2 and 4 have also field regular appeal in

R.A.No.11/2017, which is pending consideration. In the

background of the aforesaid facts and circumstances of the

matter and in the light of the aforesaid substantial

question of law, the learned counsel for the parties

submitted that the matter may be taken up for final

disposal.

8. The learned counsel for the appellants submits

that the first appellate Court has grossly erred in allowing

the appeal merely because the appellants did not produce

the original deed of gift. He submits that in view of the

admission with regard to the gift made by Gourawwa in

favour of defendant Nos.1, 5 and 6, by the plaintiff

himself, requirement of production of original document

was a futile exercise. However, on the point of technicality

regarding admission of a certified copy of a document, he

relied upon the judgment of the Apex court in the case of

Smt.Dayamathi Bai vs. K.M.Shaffi reported in AIR

2004 SC 4082, wherein, the Apex Court referring to its

earlier judgment in the case of Roman Catholic Mission

vs. State of Madras (AIR 1966 SC 1457) with regard to

admissibility of the document, has held that the objections

as to the admissibility of a document will have to be raised

at the threshold and once the document is admitted, the

question of admissibility cannot be raised in the

subsequent stage. The relevant portion of the said

judgment is at paragraph No.13, the same is extracted

hereunder:

"13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex. P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another reported in (2003) 8 SCC 752 ) to which one of us, Bhan, J., was a party vide para 20:

"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission vs. State of Madras (AIR 1966 SC 1457 ) in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case.

However, the present one is a case which calls for the correct position of law being made precise.

Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as an exhibit, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in

evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the partly tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to

the party leading the evidence.

Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."

9. In the instant case, the certified copy of the

gift deed was produced as Ex.D14 and that there was no

objection for production of the said document. That apart,

execution of the gift deed by one Gourawwa in favour of

defendant No.1, is not in dispute. In the aforesaid facts

and circumstances of the case and in view of law laid down

by the Apex Court as above, the substantial question of

law raised is answered in the negative holding that the first

appellate Court was not justified in allowing the appeal for

non production of the original deed of gift.

10. The learned counsel for the parties pointed out

to an observation made by the first appellate Court at

paragraph No.32 of its judgment, which is extracted

hereunder for perusal:

"32. However, on re-examination of the entire evidence on record and the findings of the trial Court on the remaining issues, I find that the trial Court has properly appreciated the evidence tendered by the respective parties to this suit and has arrived at a just conclusion. In so far as the remaining issues except issue No.4, no interference as such is called for in appeal. Accordingly, I answer point No.1 in the affirmative."

11. It is submitted by the learned counsel for the

parties that the subject matter of the regular appeal in

RA.No.9/2017 was limited with regard to the validity or

otherwise of the gift made by Gourawwa in favour of

defendant Nos.1, 5 and 6. While, the issue with regard to

entitlement of the plaintiff in respect of other suit

properties is still being considered in the regular appeal in

R.A.No.11/2017 filed by the defendants. In the

circumstances aforesaid finding arrived at by the first

appellate Court cannot be sustained.

12. It is necessary to note that the plaintiff in

R.A.No.9/2017, apart from raising the grounds regarding

non production of the original deed of gift by the defendant

No.1 in respect of Survey No.93, has also raised a ground

that, defendant No.1 though acquired the land in Survey

No.93 under the gift, had always treated the said property

to be a joint family property and that there was blending of

the same into the joint family properties. That the said

land in Survey No.93 was never treated by defendant No.1

as his independent and absolute property. Therefore, the

plaintiff is entitled for the share in the said property.

13. The First Appellate Court while adverting to

grounds on non production of original deed of gift has held

that the gift is not proved in the manner known to law.

The question of non-production of original deed of gift

having answered as above, the point that arise for

consideration is whether the first appellate court has given

any reasoning with regard to contention of the plaintiff that

despite defendant No.1 acquiring the land in Sy.No.93 by

way of gift, treated the same as having acquired as a elder

member of hindu un-divided family and the said property

had been treated joint family property. Without adverting

to these aspects of the matter at para-32 of the judgment,

the first appellate court has given reasoning as above

which cannot be sustained.

14. In that view of the matter since the appeal

filed by the defendants in RA.No.11/2017 is still pending

consideration and the grounds urged in RA.No.9/2017 not

having been adjudicated in the manner known to law and

upon submissions of learned counsel for the parties that an

opportunity be given to the parties to address the

arguments on the said grounds in order to avoid conflicting

decision, taking note of the above facts and

circumstances, this Court is of the considered view that the

matter in RA.No.9/2017 be remanded for limited purpose

for adjudication and determination on the grounds urged

by the plaintiff at ground Nos.8, 9 and 10 of the appeal

memo in RA.No.9/2017. Further in view of the fact the

both Regular Appeals in RA.No.9/2017 and RA.No.11/2017

arise out of same judgment and between same parties in

order to avoid any conflicting decision it is appropriate that

both the appeals be clubbed and heard together.

Accordingly, the following.

ORDER

i) RSA.No.200211/2019 is allowed.

ii) The judgment and order dated

05.04.2019 in R.A.No.9/2017 is set aside.

iii) The findings and order of the Trial Court

with regard to the validity of gift made by

Gowrawwa in favour of defendant Nos.1, 5 and

6 is sustained.

iv) The matter is remitted to the first

appellate Court for adjudication of the

contentions of the plaintiff as urged in ground

Nos.8, 9 and 10 by providing sufficient

opportunity to the parties.

v) The observation made by the first

appellate court in para-32 of the impugned

judgment shall not influence determination of

the matter afresh.

vi) Regular Appeal in R.A.No.11/2017 be

clubbed with R.A.No.9/2017 and be heard

together and disposed off in accordance with

law.

vii) In view of disposal of main appeal,

I.A.1/2019 does not survive for consideration

and same is disposed off.

Sd/-

JUDGE

Srt/MKM