Gundappa S/O Saibanna Deceased ... vs Shamrao S/O Mareppa Anr
2022 Latest Caselaw 8918 Kant

                              1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

         REGULAR SECOND APPEAL No.7498/2010

BETWEEN:

Gundappa S/o Saibanna
Deceased per L.R.

1.     Shivasharnappa S/o Gundappa,
       Age: 41 years, Occ: Agriculture,

2.     Prabhu S/o Gundappa,
       Age: 36 years, Occ: Agriculture,

3.     Peerappa S/o Gundappa,
       Age: 29 years, Occ: Agriculture,

       All resident of Rustampur,
       Tq. Chincholi, Dist. Gulbarga.
                                          ... Appellants
(By Sri. Manvendra Reddy &
    Sri. Narendra M. Reddy Advocates)

AND:
1.     Shamrao S/o Mareappa,
       Age: 25 years, Occ: Agriculture,
       R/o Rustampur, Tq. Chincholi,
       Dist. Gulbarga -585 234.
                               2



2.    Gundamma W/o Adevappa,
      Age: 51 years, Occ: Household,
      R/o Tadpalli of
      Chincholi Taluka - 585 234.

3.    Ambawwa W/o Shankerappa,
      Age: 46 years, Occ: Household,
      R/o Tadpalli of
      Chincholi Taluka - 585 234.

4.    Rangamma W/o Nagappa,
      Age: 36 years, Occ: Household,
      R/o Hodebeeranalli,
      Chincholi Taluka - 585 234.

5.    Shanthamma W/o Nagappa,
      Age: 33 years, Occ: Household,
      R/o Yeddalli of
      Sedam Taluka - 585 234.
                                              ... Respondents

(V/o dated 19.03.2012 service of notice to
R1 to R4 is held sufficient;
R5 - served)

      This Regular Second Appeal is filed under Section
100 R/w Order 41 Rule 1 of CPC, praying to set aside the
impugned judgment and decree in R.A.No.52/2009 dated
21.08.2010 passed by Civil Judge (Sr.Dn.) at Chincholi and
set aside the impugned judgment and decree dated
25.08.2009 in O.S.No.41/2000 passed by Prl. Civil Judge
(Jr.Dn.) at Chincholi and allow the appeal by dismissing
the said suit of the plaintiff/respondent No.1 in Trial Court.

      This appeal having been heard and Reserved for
judgment on 10.06.2022, coming on for 'Pronouncement
of Judgment' this day, the Court delivered the following:
                                      3



                           JUDGMENT

This appeal is filed by the appellants/original

defendants challenging the judgment and decree dated

21.08.2010 passed in R.A.No.52/2009 on the file of Senior

Civil Judge, Chincholi and the judgment and decree dated

25.08.2009 passed in O.S.No.41/2000 on the file of

Principal Civil Judge (Jr.Dn.), Chincholi, whereby the

Courts have decreed the suit of the plaintiff by granting

half share in the suit schedule properties.

2. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Trial Court.

3. That, defendant Nos.2 to 4 are the sons and

defendant Nos.5 to 8 are the daughters of defendant No.1.

The plaintiff had initially filed a suit in O.S.No.41/2000

against defendant Nos.1 to 4 only which came to be

decreed and later on the daughters of defendant No.1

challenged the said judgment and decree in

R.A.No.80/2006 and hence the matter was remanded.

Thereafter, the daughters were impleaded and again after

evidence, the suit came to be decreed. According to the

plaintiff, the suit schedule properties are agricultural lands

bearing Sy.Nos.154 and 181/B measuring 10 acres 13

guntas and 5 acres 4 guntas respectively of Rustampur

village of Chincholi Taluk. That, the father of the plaintiff

by name Mareppa and defendant No.1 are brothers and

they are the sons of Saibanna. That, suit lands were

originally owned by Saibanna and there was no partition

effected between Mareppa and defendant No.1 till filing of

the suit. The plaintiff contended that his father and

defendant No.1 were joint family members and no

partition was effected in the suit lands, which are their

joint family lands and since defendant No.1 was the elder

brother of Mareppa, the name of defendant No.1 was

entered to the suit land. That, the defendants have refused

to effect the partition in the suit lands and hence, he

claims to have filed the suit for partition.

4. Defendant Nos.2 to 4 filed their written

statement which is adopted by defendant Nos.5 to 8 after

they were impleaded. In the Written statement, the

defendants have admitted the relationship between the

parties and nature of the suit schedule properties. It is

admitted that Saibanna was the owner and possessor of

the suit lands and according to the defendants, the father

of the plaintiff i.e., the son of Saibanna by name Mareppa

was adopted by one Tippawwa W/o Murgeppa of Kuddalli

village about 60 years back and defendant No.1 alone

inherited the suit lands. That, the defendants have

disputed the joint ownership and possession of the plaintiff

over the suit lands. They admitted that there was no

partition effected between defendant No.1 and Mareppa

and at one breath they contend that the plaintiff is not the

son of Mareppa. It is also contended that after adoption,

Mareppa inherited the properties of Tippawwa. It is further

contended that he had also filed O.S.No.60/1990 against

the father of defendant Nos.2 to 4 and the said suit was

compromised on 11.04.2001 and the said compromise

decree is binding upon the defendants. As such, they have

sought for dismissal of the suit.

5. On the basis of these pleadings, the Trial Court

has framed the following:

ISSUES

1. Whether the plaintiff proves that, the suit properties are the joint family properties of the family of plaintiff and defendants?

2. Whether plaintiff proves that he is entitled for 1/2 share in the suit properties?

3. Whether defendants prove that the father of the plaintiff had given in adoption as contended?

4. To what relief the plaintiff is entitled to?

5. What order or decree?

6. The plaintiff was examined as PW.1 and placed

reliance on three documents marked at Exs.P1 to P3.

Defendant No.2 was examined as DW.1, while defendant

No.5 was examined as DW.4 and defendant No.8 was

examined as DW.5 and two witnesses were examined as

DWs.2 and 3. The defendants have also placed reliance on

four documents. After hearing the arguments, the Trial

Court has answered issue Nos.1, 2 and 4 in the

affirmative, while issue No.3 was answered in the negative

and decreed the suit by awarding half share to the

plaintiff.

7. Being aggrieved by this judgment and decree,

defendant Nos.1 to 4 have preferred R.A.No.52/2009 and

the First Appellate Court after reappreciating the oral and

documentary evidence and pleadings of the parties,

dismissed the appeal by confirming the judgment and

decree dated 25.08.2009 passed by the Trial Court in

O.S.No.41/2000. Being aggrieved by these concurrent

findings of the Courts below, defendant Nos.2 to 4 have

filed this appeal under Section 100 of CPC.

8. The appellants/defendants have also filed

I.A.No.2/2013 under Order 41 Rule 27 of CPC, seeking

production of compromise petition and final compromise

decree passed in O.S.No.60/1990.

9. Heard the arguments advanced by the learned

counsel for the appellants.

10. The respondents though served, did not appear

before the Court.

11. The learned counsel for the appellants has

contended that both the Courts have erred in decreeing

the suit of the plaintiff when there is a judgment and

decree in favour of father of the plaintiff in

O.S.No.60/1990, wherein in the compromise decree,

4 acres in suit land bearing Sy. No.181/B was given to the

share of father of the plaintiff and the suit land bearing

Sy.No.154 was allotted to the share of defendant No.1. He

would contend that when there is a judgment and decree

in favour of the father of the plaintiff, he cannot file a

subsequent suit for partition, as it is hit by principles of

res judicata. He would also contend that the plaintiff

cannot challenge the judgment and decree passed in

favour of his father by way of compromise in a separate

proceedings. He further contended that by inadvertence,

the decree in O.S.No.60/1990 was not filed before the Trial

Court or the First Appellate Court and however, a defence

was set up in this regard and the compromise petition was

filed, but decree could not be filed. He further contend that

now he has obtained the decree and he has produced the

same by moving an application in I.A.No.2/2013 under

Order XLI Rule 27 of CPC and sought for allowing the said

application. He would further contend that where the

additional evidence sought to be adduced removes the

cloud of doubt over the case and the evidence has a direct

and important bearing on the main issue in the suit, it may

be allowed to be brought on record. In this context, he

placed reliance on the decision of the Hon'ble Apex Court

in 2022 Live Law (SC) 268 (Sanjay Kumar Singh Vs.

The State of Jharkhand).

     12.    Having     heard    the    arguments,    now     the

following substantial questions of law arose            for my

consideration:

1. Whether both the Courts below have erred in ignoring the decree passed in O.S.No.60/1990 in favour of the father of the plaintiff?

2. Whether the application filed under Order 41 Rule 27 of CPC i.e. I.A.No.2/2013 needs to be allowed?

13. It is to be noted here that the plaintiff has filed

the suit for partition and separate possession claiming

half share in the suit schedule properties. The plaintiff

asserts that his father Mareppa and defendant No.1 are

the sons of Saibanna and they are the brothers having

equal share in the suit schedule properties. The

defendants at the first instance have set up a defence

claiming that the father of the plaintiff by name Mareppa

went in adoption to one Tippawwa. At the outset it is to

be noted here that though the defendants have taken up

a defence of adoption of Mareppa, no evidence is led on

this point. On the contrary, it is elicited that Mareppa had

married to one Sharanamma, who is the daughter of said

Tippawwa and mother of the plaintiff. When Mareppa is

married to the daughter of Tippwwa, question of he being

adopted by Tippawwa does not arise at all, as marriage

becomes within the prohibited degree. Further, the status

of Mareppa is undisputed. Very interestingly, in the

earlier suit filed in O.S.No.60/1990, an inconsistent

defence was raised which is now given a goby by the

defendants. Apart from that, in the evidence, DWs.4 and

5, who are defendant Nos.5 and 8 have taken an

inconsistent stand asserting that Saibanna had married

to one Peeramma as a second wife and at the time of

marriage, Peeramma had already got a son by name

Mareppa. This defence was taken without there being any

pleading and thereby they tried to dispute the status of

Mareppa itself. But, the evidence on record clearly

disclose that the defendants have admitted that Mareppa

is the son of Saibanna. The evidence clearly disclose that

the plaintiff is the son of Mareppa.

14. It is all along asserted by the defendants in

their written statement that there was no partition

effected pertaining to the suit schedule properties. But,

very interestingly, they have taken up another defence

regarding a compromise decree in O.S.NO.60/1990. At

the outset, in the written statement there is absolutely

no pleadings as to when exactly the compromise decree

did take place and what is the property allotted to the

father of the plaintiff and defendants. This material

pleadings was missing. Further, all along it is the

contention of the defendants that Sy.No.181/B

measuring 4 acres is given to Mareppa in the earlier suit

by way of compromise. But, DW.1 in his cross-

examination asserts that defendants are in possession of

the suit land which pleading is against the compromise

decree. Apart from that, in the written statement, the

specific contention of the defendants is that there was no

partition at all. Further, in the written statement though

they have relied on the judgment pertaining to

compromise in O.S.No.60/1990 claiming that it is binding

on defendant Nos.2 to 4, but they have not disclosed the

nature of the compromise in detail. Further, they have

simply produced the certified copy of the plaint, written

statement and compromise petition as per Exs.D1 to D3

pertaining to O.S.No.60/1990 and they have not

produced the certified copy of either order sheet or

compromise decree to show that the compromise was

accepted by the Court. All these aspects have been

elaborately discussed by the First Appellate Court as well

as the Trial Court and therefore, both the Courts below

have held that there was no such compromise and

declined to rely on these documents and defence of

compromise decree in O.S.No.60/1990. When the

defendants have set up the defence, they ought to have

pleaded in detail these facts, but they have not done so.

15. However, now I.A.No.2/2013 is filed under

Order 41 Rule 27 of CPC, seeking production of the

compromise petition and the certified copy of the

compromise decree. It is to be noted here that the

certified copy was obtained on 16.04.2013 i.e., during

the pendency of this appeal. No proper explanation was

given for non-production of the certified copy of the

compromise decree before the Trial Court or before the

First Appellate Court. In the affidavit filed in support of

I.A.No.2/2013, it is simply contended that documents

produced are important to decide the case and sought for

allowing the application. But, why these documents were

not produced is not at all forthcoming.

16. The learned counsel for the appellants has

placed reliance on a decision of the Hon'ble Apex Court

reported in 2022 Live Law (SC) 268 in the case of

Sanjay Kumar Singh v. The State of Jharkhand,

wherein the Hon'ble Apex Court has observed as under:

"Code of Civil Procedure, 1908 : Order 41 Rule 27 - The appellate court to take additional evidence in exceptional circumstances - Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed - The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause-The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."

17. No doubt, the decree in the earlier suit in

O.S.No.60/1990 had a direct bearing on this appeal. The

appellants have not made any attempts to produce this

document before the Trial Court or First Appellate Court

and at a belated stage they filed this application. No

attempt has been made to explain the delay. However, it

is a fact that this document is having direct bearing on the

merits of the case, as in the earlier suit by way of

compromise Mareppa was given 4 acres in land bearing

Sy.No.181/B. But, interestingly, the defendants all along

contending that they are in possession of all the suit

schedule properties and they disputed the partition itself.

At one breath they claim that they bound by the decree in

O.S.No.60/1990 and at another breath they assert that

there was no partition and the father of the plaintiff does

not have any right over the properties. These two stands

are inconsistent and contrary to each other. However,

they are required to be tested.

18. It is also important to note that the matter was

once remanded and after impleading the daughters, the

suit again came to be decreed. It is also important to note

here that the defendants have not pleaded in detail

regarding the compromise decree in their written

statement, except a vague defence that there was a

decree which is binding on the parties. At a belated stage,

they have produced the decree and they are guilty of

laches. The parties are fighting the litigation for more than

22 years.

19. Even this Court cannot directly dispose of the

matter in view of the earlier instituted suit

O.S.No.60/1990, as the compromise decree was not

placed before the Court and both the Courts below have

given a detail explanation for not relying the said

contention in view of non-production of the decree. Now,

the decree has been produced. What is the impact of the

decree and whether the same property can be allotted to

the parties is required to be considered by the Trial Court.

Further, as per the decision of the Hon'ble Apex Court

reported in 2022 Live Law (SC) 268 (Sanjay Kumar

Singh v. The State of Jharkhand), where the additional

evidence sought to be adduced removes the cloud of doubt

and has a direct and important bearing on the main issue,

in the interest of justice it is required to be allowed by

permitting the parties to bring the additional evidence on

record. No doubt, there is laches on the part of the

appellants herein in not producing the said document, but

for laches on the part of the appellants, their legal right

cannot be denied.

20. Under the circumstances, the matter requires

to be remitted back to the Trial Court with a direction to

give an opportunity to the appellants to produce the

relevant documents and lead further evidence, if any, on

this point. Further, the respondents would also get an

opportunity to contest on this point. However, considering

the laches on the part of the appellants in withholding this

document which has bearing on the outcome of the

finding, they are required to be saddled with heavy costs

and under these circumstances, both substantial questions

of law are required to be answered in the affirmative.

Accordingly, I proceed to pass the following:

ORDER

i. The appeal is allowed on payment of costs of Rs.10,000/- payable by the appellants to the respondents to be deposited before the Trial Court within four weeks.

      ii.    The judgment and decree dated 25.08.2009
             passed   in   O.S.No.41/2000      on   the   file   of

Principal Civil Judge (Jr.Dn.), Chincholi and the judgment and decree dated 21.08.2010 passed in R.A.No.52/2009 on the file of Senior Civil Judge, Chincholi are set aside.

iii. I.A.No.2/2013 filed under Order XLI Rule 27 of CPC by the appellants is allowed.

iv. The matter is remitted back to the Trial Court.

v. The Trial Court is directed to issue notice to the respondents herein and after service of notice, it shall dispose of the matter by giving

opportunity to both the parties to lead evidence on the additional documents now sought to be produced under I.A.No.2/2013 regarding compromise decree in O.S.No.60/1990.

vi. The appellants shall appear before the Trial Court without waiting for notice on 01.07.2022 at 11.00 a.m. and take appropriate steps for issuing notice to the respondents.

vii. If any of the parties failed to appear before the Trial Court, the Trial Court shall dispose of the matter on available records within six months from the date of appearance of the respondents.

viii. Office is directed to send I.A.2/2013 along with relevant documents to the Trial Court along with Trial Court records for needful.

Sd/-

JUDGE

LG