Mr.M. Thippanagouda S/O ... vs Mr.M. Rudragouda S/O ...
2023 Latest Caselaw 7447 Kant

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                                                            NC: 2023:KHC-D:12769-DB
                                                               RFA No.100269 of 2015




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 2ND DAY OF NOVEMBER, 2023

                                                  PRESENT

                                   THE HON'BLE MR JUSTICE H.P.SANDESH

                                                    AND

                             THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR


                              REGULAR FIRST APPEAL NO.100269 OF 2015 (PAR/POS)


                        BETWEEN:


                        MR.M. TIPPANAGOUDA,
                        S/O. MUDDAREDDAPPA,
                        AGE:66 YEARS, OCC:AGRICULTURE,
                        R/O:GOREBAL VILLAGE,
                        TQ:SINDHNAUR, DIST:RAICHUR.
                                                                         ...APPELLANT
                        (BY SRI.SANTOSH MANE, ADVOCATE FOR
                            SRI. NEELENDRA D. GUNDE, ADVOCATE)
Digitally signed by K
M SOMASHEKAR
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
                        AND:
Date: 2023.11.07
10:46:17 +0530
                        1.      MR.M. RUDRAGOUDA,
                                S/O. MUDDAREDDAPPA,
                                DECEASED BY HIS LRs.,

                        1(A). SRI. SHARANAGOUDA
                              S/O. M.RUDRAGOUDA,
                              AGE: 46 YEARS, OCC: AGRI.,
                              R/O: GUREBAL VILLAGE IN
                              SINDHANUR TALUK.

                        1(B). SMT. SHIVARUDRAMMA W/O. R.B.PATIL
                              AGE: 55 YEARS, OCC: HOMEMAKER,
                             -2-
                                    NC: 2023:KHC-D:12769-DB
                                       RFA No.100269 of 2015




      R/O: GOREBAL VILLAGE IN
      SINDHANUR TALUK.

1(C). SMT. TIPPAMMA
      W/O. VIRUPAKSHAPPA TUMBAL,
      AGE: 51 YEARS, OCC: HOMEMAKER,
      R/O: GOREBAL VILLAGE IN
      SINDHANUR TALUK.

1(D). SMT. SHASHIKALA
      W/O. VIRISHABENDRA GOUDA,
      AGE: 45 YEARS,
      OCC: HOMEMAKER,
      R/O: SHREENIVAS KRUPA, 4TH CROSS,
      BASAVESHWAR NAGAR, BALLARI.

2.    MR.M.RANGANAGOUDA,
      S/O. M. RUDRAGOUDA,
      AGE: 69 YEARS, OCC: AGRICULTURE,
      R/O: GOREBAL VILLAGE,
      TQ:SINDHNAUR, DIST:RAICHUR.

3.    MR.SHARANAPA KONI,
      S/O. BASAPPA KONI,
      AGE:63 YEARS,
      OCC:PENSIONER,
      R/O:HUDCO COLONY,
      TQ & DIST:KOPPAL.
                                             ...RESPONDENTS
(RESPONDENTS NO.1(d), 2 & 3 - SERVED
 RESPONDENTS NO.1(a), (b) & (c) - NOTICE HELD SUFFICIENT)

     THIS RFA IS FILED UNDER SECTION 96 OF THE CIVIL
PROCEDURE CODE, 1908 AGAINST THE JUDGMENT AND DECREE
DATED 01.10.2015 PASSED IN O.S.NO.89/2014 ON THE FILE OF
THE SENIOR CIVIL JUDGE AT KOPPAL, DISMISSING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.

     THIS   RFA,   COMING   ON    FOR   HEARING,   THIS   DAY,
SANDESH, J., DELIVERED THE FOLLOWING:
                              -3-
                                      NC: 2023:KHC-D:12769-DB
                                         RFA No.100269 of 2015




                          JUDGMENT

Heard the appellant's counsel.

2. Though the notices issued by this Court have

been served on the respondents, the respondents have

remained unrepresented.

3. This appeal is filed challenging the judgment and

decree, dated 1st October 2015, passed in O.S. No.89/2014

by the Senior Civil Judge, Koppal (for short, 'the Trial

Court') dismissing the suit filed by the appellant/plaintiff for

the relief of partition and separate possession.

4. The factual matrix of the case of the plaintiff

before the Trial Court is that the plaintiff and defendant

No.1 are real brothers, defendant No.2 is the son of

defendant No.1, and defendant No.3 is a stranger to the

plaintiff's family. It was contended by the plaintiff that he

and defendant No.1 are the joint owners of the suit

property; the joint family of plaintiff and defendant No.1

owned agricultural lands at Gorebal and Mullur villages of

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

Sindhanur Taluk and they were fetching handsome income

for the family. The plaintiff, in the year 1977, applied for

allotment of house to be built by Housing Urban

Development Corporation ('HUDCO') by using joint family

income in the name of defendant No.1 since he was the

kartha of the family. The suit house was allotted in the

name of defendant No.1 in the year 1989. Defendant No.1

had no separate income of his own to pay the amount to

the HUDCO. The installments were paid by the plaintiff out

of the joint family funds. It was also contended by the

plaintiff that in the year 1994 there was a partition in the

family and all the properties except the suit house were

divided between them, and the suit house continued to be

the joint family property of the plaintiff and the defendant

No.1. In the year 2002, HUDCO executed registered sale

deed in the name of defendant No.1. Defendant No.1 on the

basis of the sale deed got entered his name in the revenue

records, but defendant No.1 is joint owner of the suit house

along with the plaintiff. Defendant No.1 on the basis of the

municipal records standing in his name, gifted the suit

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

house in favour of his son i.e., defendant No.2. Defendant

No.2 sold the suit house in favour of defendant No.3

through a registered sale deed dated 25.09.2004.

Defendant No.2 had no valid title to convey the title of the

suit house in favour of defendant No.3. In spite of several

requests, defendant No.1 refused to give share in the suit

house. Hence the suit was filed.

5. Notices of the suit were issued to defendants

No.1 to 3 and all of them remained absent and were placed

ex parte.

6. The Trial Court allowed the plaintiff to lead

evidence and the plaintiff entered the witness box and got

examined himself as P.W.1 and one more witness as P.W.2,

and got marked four documents as Exs.P.1 to P.4.

7. The Trial Court taking into account the material

on record did not accept the case of the plaintiff and came

to the conclusion that there was no reference with regard to

the suit house in Ex.P.2-partition deed under which partition

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

had taken place between the plaintiff and defendant No.1.

The Trial Court observing that the plaintiff cannot take

advantage of the defendants' non-appearance before the

Court and also taking note of the fact that already there

was separation and severance of joint family status,

dismissed the suit of the plaintiff.

8. Being aggrieved by the judgment and decree of

the Trial Court, the present First Appeal is filed before this

Court.

9. Learned counsel for the appellant would

vehemently contend that the appellant had applied to the

HUDCO for allotment of a house in the year 1977 and the

same was allotted in the year 1989. He would further

contend that as on the date of the partition between the

plaintiff and the defendant No.1, there was no absolute

deed executed in favour of either of the family members

and hence no reference was made in the partition

deed-Ex.P.2. The Trial Court committed an error in coming

to the conclusion that there was no reference in the earlier

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

partition deed and hence same cannot be considered as a

joint family property. He submits that the very approach of

the Trial Court is erroneous and the conclusion of the Trial

Court cannot be said to be in a proper perspective.

10. The learned counsel for the appellant has filed an

application in I.A. No.1/2016 for production of additional

documents. The documents which relate to allotment of the

subject matter of the suit in the year 1992 are placed

before this Court. The documents which are sought to be

produced are all issued by the Karnataka Housing Board.

The documents are, a letter dated 03.06.1992 intimating

allotment of site and also intimating the allottee to get the

lease-cum-sale deed drafted for the purpose of execution

and registration; letter dated 24.06.1992 intimating the

allotee to get the lease-cum-sale deed registered at the

Sub-Registrar's office, Koppal; and a memo dated

14.08.1992 handing over the suit property. In support of

the application, an affidavit sworn to by the appellant is also

filed assigning reasons for non-production of documents

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

before the Trial Court. In paragraph 5 of the affidavit, the

appellant has stated that the counsel who conducted the

case before the Trial Court had not properly instructed him

and it is only at the time of preparing final arguments in the

suit proceedings, in the course of discussion, he was

advised to search and secure the records to prove the

allotment, which could not be produced before the Trial

Court in time to prove his case. He has also stated after

making a thorough search for the records/documents he got

the same which are necessary for adjudication of the

dispute. Hence, the learned counsel for the appellant prays

that the application may be allowed and the appellant may

be permitted to produce the documents filed along with

application as additional documents in support of his case.

11. Having heard the appellant's counsel, the points

that arise for consideration in this appeal are:

i) Whether appellant has made out a ground for invoking Order XLI Rule 27 of the Code of Civil Procedure, 1908?

NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

ii) Whether the Trial Court has committed an error in dismissing the suit? Whether it requires interference?

iii) What order?

Point No.1.

12. Having heard the appellant's counsel and on

perusal of the material on record, and also the documents

which are produced before this Court along with I.A.

No.1/2016, it is seen that a partition in the family had taken

place in the year 1996 and a copy of the partition deed is

produced before the Trial Court as Ex.P.2. It is also seen

that the documents, which are sought to be produced

before this Court, relate to allotment of the house by the

Karnataka Housing Board and all the documents are of the

year 1992. No doubt, the Trial Court has observed in its

judgment that in Ex.P.2 no reference is made with regard to

suit house, but the contention of the plaintiff/appellant

before the Trial Court was that the allotment of suit house

by the HUDCO was in favour of the family and amount to

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

purchase the suit house was paid to the HUDCO out of the

joint family income. Though the plaintiff contended that he

had applied for allotment of house in the name of defendant

No.1, he had not produced any document before the Trial

Court to show that in the year 1977 an application was

made for allotment of house and the house was allotted in

the year 1989. However, the documents which are now

sought to be produced before this Court clearly disclose that

the house was allotted in the year 1992 and other relevant

documents intimating the allottee to get the lease-cum-sale

deed registered and handing over of the house all pertain to

the year 1992. When such being the case and when there is

material to show that partition had taken place in 1996 i.e.,

after four years of allotment of house and when the

absolute sale deed was registered in the year 2002,

subsequent to the partition, there is force in the contention

of the appellant's counsel that since the counsel, who

conducted the suit, had not properly instructed the plaintiff,

and it is at the time of preparing final arguments during the

suit proceedings, in the course of discussion, he was

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

advised to search and secure the records and therefore the

said documents could not be traced and produced in time

before the Trial Court. It is also stated in the affidavit that

the plaintiff/appellant made serious search for the

documents, he got the same and is producing them before

this Court along with the application. The documents are

photocopies of the letter dated 03.06.1992 intimating

allotment of site and also intimating the allottee to get the

lease-cum-sale deed drafted for the purpose of execution

and registration; letter dated 24.06.1992 intimating the

allotee to get the lease-cum-sale deed registered at the

Sub-Registrar's office, Koppal; and a memo dated

14.08.1992 handing over the suit property.

13. Apart from the documents dated 03.06.1992,

letter dated 24.06.1992, and a memo dated 14.08.1992

produced along with the application, learned counsel for the

appellant places before this Court certain original

documents also i.e., a receipt dated 10.07.1992 issued by

the Sub-Registrar's office, Koppal, for having made the

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

payment towards registration fee and other charges, a

letter dated 29.07.1993 and letter addressed by Karnataka

Housing Board to the allottee for having repaid the loan

amount for the period 13.08.1992 to 12.08.1994. All these

original documents which are placed before this Court

pertain to the allotment of house made in the year 1992,

whereas the partition has taken place in the year 1996 after

four years of the allotment. These documents are necessary

for adjudication of the dispute between the parties. Hence,

we are of the view that the appellant/plaintiff has made a

ground to allow the application filed under Order XLI Rule

27 of CPC, and accordingly, I.A. No.1/2016 is allowed and

the documents produced along with the application are

taken on record.

POINT NO.2

14. We have considered the reasoning assigned by

the Trial Court. The Trial Court, while observing that the

plaintiff cannot take advantage of the defendants' non-

appearance, has come to the conclusion that no documents

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

are placed before it with regard to the allotment of site in

the year 1992 though a pleading is made that the plaintiff

had applied for allotment of house in the year 1977 and the

allotment was made in the year 1989. However, it is only

before this Court the appellant/plaintiff has produced the

documents in support of his case. A perusal of the records

also discloses that defendants No.1 to 3 were placed ex

parte before the Trial Court and even in this appeal, though

the respondents/defendants are served they have remained

unrepresented and have not contested the matter. Even

with regard to the pleadings of the plaintiff, the same are

not in disputed either before the Trial Court or before this

Court.

15. Having answered Point No.1 in the affirmative

that the appellant/plaintiff has made a ground to invoke

Order XLI Rule 27 of CPC and having allowed the

application for production of additional documents which are

necessary for adjudication of the dispute between the

parties to the suit with regard to the issue whether the

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

plaintiff/appellant proves that the allotment was made in

favour of the family of plaintiff and defendant No.1 or in the

individual name defendant No.1, it is appropriate to set

aside the judgment and decree of the Trial Court and remit

the matter to the Trial Court for reconsideration.

Accordingly, Point No.2 is also answered in the affirmative.

POINT NO.3.

16. In view of the above discussion and having

answered Point No.1 and Point No.2 in the affirmative, we

make the following:

ORDER

i) The appeal is allowed. The impugned judgment and decree dated 01.10.2015 passed in O.S. No.89/2014 by the Senior Civil Judge, Koppal, is hereby set aside.

ii) The matter is remitted back to the Trial Court to consider the matter afresh.

iii) In view of allowing I.A. No.1/2016 filed in this appeal, Registry is directed to send the

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NC: 2023:KHC-D:12769-DB RFA No.100269 of 2015

application and the documents produced along with the application to the Trial Court.

iv) The original documents which are placed before this court and referred to above, are returned permitting the appellant to produce the same before the Trial Court.

v) The Trial Court is directed to issue fresh notice against the defendants/respondents in view of remand and consider the matter on merits.

vi) The date for appearance of parties before the Trial Court is fixed on 01.12.2023.

vii) Registry is directed to send the records forthwith to the Trial Court to enable the Trial Court to take up the matter on 01.12.2023.

Sd JUDGE

Sd JUDGE

KMS