Karnataka High Court
Sri M Tejkumar vs Sri H M Shashidhara on 6 October, 2023
Bench: H.P.Sandesh
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RSA No. 1291 of 2017
C/W MSA No. 41 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1291 OF 2017 (PAR)
C/W
MISCELLANEOUS SECOND APPEAL NO. 41 OF 2017
IN R.S.A. NO.1291/2017:
BETWEEN:
1. SRI M. TEJKUMAR
AGED ABOUT 63 YEARS,
S/O LATE SRI G.H. MARIYAPPA,
R/AT HUDIKERE VILLAGE AND POST,
TARIKERE TALUK,
CHICKMAGALUR DISTRICT-577228. ... APPELLANT
(BY SRI C. SHANKAR REDDY, ADVOCATE)
AND:
1. SMT. M. THRILAKSHI
AGED ABOUT 66 YEARS,
Digitally signed
by SHARANYA T W/O LATE SRI CHANNABASAPPA,
Location: HIGH
COURT OF 2. SMT. H.M. SUMITHRA
KARNATAKA AGED ABOUT 60 YEARS,
W/O SRI H.K. BASAVARAJA,
THE RESPONDENTS NO.1 AND 2 ARE
RESIDING AT D.NO.263, 9TH CROSS
SRIRAMPURA 2ND STAGE
MYSORE-570 023.
3. SMT. H.M. BHUVANESHWARI
AGED ABOUT 56 YEARS,
W/O SRI RUSHIKUMAR,
R/AT DHORANALU VILLAGE
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AND POST, TARIKERE TALUK,
CHICKMAGALUR DISTRICT-577228.
4. SRI H.M. SHASHIDHARA
AGED ABOUT 54 YEARS,
S/O LATE SRI G.H. MARIYAPPA,
R/AT D.NO.1548,
1ST FLOOR, 14TH CROSS,
1ST STAGE, SRIRAMPURA,
MYSORE-570023
5. SRI H.M. KUMARASWAMY
AGED ABOUT 51 YEARS,
S/O LATE SRI G.H.MARIYAPPA,
R/AT NO.274, 14TH CROSS,
LIC COLONY, SRIRAMPURA,
2ND STAGE,
MYSORE-570023.
6. SRI MURUGENDRAPPA
AGED ABOUT 67 YEARS,
S/O LATE SRI BASAPPA GOWDA,
7. SRI M. PRADEEP
AGED ABOUT 35 YEARS,
S/O LATE SRI BASAPPA GOWDA
8. SRI M. PRASHANTH
AGED ABOUT 32 YEARS,
S/O SRI MURUGENDRAPPA,
THE RESPONDENTS
NO.6 TO 8 ARE
RESIDING AT D.NO.69,
VENKATAMMA MSR COLONY,
6TH MAIN, MATHIKERE,
BENGALURU-560 054. ... RESPONDENTS
(BY SRI H.B.RUDRESH, ADVOCATE FOR C/R1 AND R2;
SRI KALYAN R., ADVOCATE FOR R4 AND R5;
R6 TO R8 ARE DISPENSED WITH,
VIDE ORDER DATED 17.02.2023;
R3 HELD SUFFICIENT, VIDE ORDER DATED 17.02.2023)
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THIS R.S.A. IS FILED UNDER SECTION 100 R/W ORDER
XLII RULES 1 OF CPC, AGAINST THE JUDGEMENT DECREE
DATED 05.04.2017 PASSED IN R.A.NO.87/2014 ON THE FILE
OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE.,
CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 27.08.2014
PASSED IN O.S.NO.24/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND PRINCIPAL JMFC., TARIKERE.
IN M.S.A. NO.41/2017:
BETWEEN:
1. SRI M. TEJKUMAR
AGD BOUT 63 YEARS
S/O LATE SRI G.H.MARIYAPPA
R/AT HUDIKERE VILLAGE AND POST
TARIKERE TLAUK
CHICKMAGALUR DISTRICT-577 228. ... APPELLANT
(BY SRI C. SHANKAR REDDY, ADVOCATE)
AND:
1. SRI H.M. SHASHIDHARA
AGED ABOUT 54 YEARS
S/O LATE SRI G.H. MARIYAPPA
R/AT D.NO.1548, 1ST FLOOR
14TH CORSS, 1ST STAGE
SRIRAMPURA
MYSORE-570 023.
2. SRI H.M. KUMARASWAMY
AGED ABOUT 51 YEARS
S/O LATE SRI G.H. MARIYAPPA
R/AT NO.274,
14TH CROSS, LIC COLONY,
SRIRAMPURA 2ND STAGE
MYSORE-570023
3. SMT. M. THRILAKSHI
AGEDA BOUT 66 YEARS
W/O LATE SRI CHANNABASAPPA
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4. SMT. H.M. SUMITHRA
AGED ABOUT 60 YEARS
W/O LATE SRI H.K. BASAVARAJA
THE RESPONDENTS NO.3 AND 4 ARE
RESIDING AT D.NO.263, 9TH CROSS
SRIRAMPURA 2ND STAGE
MYSORE-570 023.
5. SMT. M. BHUVANESHAWARI
AGED ABOUT 56 YEARS
W/O SRI RUSHIKUMAR
R/AT DHORANALU VILLAGE AND POST
TARIKERE TALUK
CHICKMAGALUR DISTRCIT-577 228.
6. SRI MURUGENDRAPPA
AGED ABOUT 67 YEARS
S/O LATE SRI BASAPPA GOWDA
7. SRI M. PRADEEP
AGED ABOUT 35 YEARS
S/O SRI MURUGENDRAPPA
8. SRI M. PRASHANTH
AGED ABOUT 32 YEARS
S/O SRI MURUGENDRAPPA
THE RESPONDENTS NO.6 TO 8 ARE
RESIDING AT D.NO.69
VENKATAMMA MSR COLONY
6TH MAIN, MATHIKERE
BENGALURU-560 054. ... RESPONDENTS
(BY SRI KALYAN R., ADVOCATE FOR R1 AND R2;
SRI H.B.RUDRESH, ADVOCATE FOR R3 AND R4;
R5-SERVED; R6 TO R8 ARE DISPENSED WITH
VIDE ORDER DATED 02.03.2018)
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THIS M.S.A. IS FILED UNDER ORDER XLIII RULE (1) (U)
OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED
05.04.2017 PASSED IN R.A.NO.86/2014 ON THE FILE OF THE
PRL. DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 27.08.2014 PASSED IN O.S.NO.24/2011
ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC,
TARIKERE. DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION AND THE MATTER IS REMANDED TO
THE TRIAL COURT.
THESE APPEALS HAVING BEEN HEARD FOR ORDERS ON
ADMISSION ON 29.09.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and learned
counsel for the Caveator-respondent Nos.1 and 2 and learned
counsel for respondent Nos.4 and 5.
2. These regular second appeal and miscellaneous
second appeal are filed against the judgment and decree
passed in R.A.Nos.87/2014 and 86/2014 respectively for
setting aside the judgment of the Trial Court and remanding
the matter to the Trial Court to consider the same afresh, in
view of allowing the application filed under Order 41, Rule 27
read with Section 151 of C.P.C. in R.A.No.86/2014.
3. The appellant in R.S.A.No.1291/2017 and
M.S.A.No.41/2017 is the defendant No.1 in O.S.No.24/2011
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and the respondent Nos.1 and 2 are the plaintiffs in
O.S.No.24/2011 i.e., the daughters of G.H. Mariyappa have
filed the suit for the relief of partition and separate possession
of their 1/7th share by metes and bounds claiming that they are
entitled for share in the suit schedule properties. It is
contended that the suit schedule properties are joint family
properties of plaintiffs and the defendants. The plaintiffs and
defendant Nos.1 to 4 and deceased Bharathi are children of
G.H. Mariyappa. The said G.H. Mariyappa died leaving
behind his wife and children and subsequently, the mother of
them also died and one Bharathi, who is the daughter of G.H.
Mariyappa also died leaving behind her husband and two
children, who are defendant Nos.5 to 7 and they are also made
as parties.
4. It is the contention of the plaintiffs that suit
schedule properties are in joint possession and enjoyment of
the plaintiffs and defendants as coparceners which originated
from original propositor Gurushanthappa and Kallavva. The
family originally consists of Gurushanthappa, Gangappa and
Gangadharappa and they got divided their properties.
Gurushanthappa was the kartha of their joint family and he had
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one son by name G.H. Mariyappa. After the death of G.H.
Mariyappa, his wife Gowramma, the mother of the plaintiffs and
defendant Nos.1 to 4 and Bharathi succeeded to the joint family
properties as the legal heirs. The defendant Nos.3 and 4 are
settled in Mysuru. The defendant No.1 is looking after the joint
family properties as kartha. The defendant No.1 in the last 7 to
8 years is not distributing the profits of the joint family. There
is a misunderstanding between the plaintiffs and defendant
No.1. The other defendants are colluding with the defendant
No.1 supporting him blindly. The defendant No.1 stopped the
distribution of the profit of the joint family income among the
joint family members altogether and completely. When the
demand was made to partition the properties, the defendant
No.1 declined to allot the share. Hence, legal notice was issued
and notice issued against the defendant Nos.3 and 4 was
returned unserved with an endorsement that intimation is
delivered but, not received. But, the defendants have not
replied to their notice. The plaintiffs were constrained to
publish paper publication on 31.01.2011 in local news daily.
The defendant No.1 goes on making false promises and not
shown any inclination for effecting division in the family. The
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defendant No.1 is making effort to alienate the suit schedule
properties. Hence, the plaintiffs, without any other alternative,
filed the suit for the relief of partition and separate possession.
5. In pursuance of the suit summons issued to the
defendants, the defendant Nos.2, 5 to 7 not appeared before
the Court and placed exparte and defendant Nos.1, 3 and 4
appeared through their advocates and filed the written
statement separately. The defendant No.1 in his written
statement contended that suit schedule properties were already
partitioned after the death of their mother Gowramma under
registered partition deed dated 30.01.2002 and hence, the
plaintiffs are not entitled for any share in the suit schedule
properties. The defendant No.1 also took the contention that
plaintiffs and defendant No.2 were married prior to 1985 and
hence, they are not entitled for any share in the suit schedule
properties. The defendant Nos.3 and 4 took the contention
that they are also entitled for 1/7th share each in suit schedule
properties and also contend that the registered partition deed
dated 30.01.2002 was executed only for the limited purpose of
raising loans and no partition was effected.
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6. The Trial Court, having considered the pleadings of
the parties, framed appropriate issues and allowed the parties
to lead evidence. The plaintiff No.1 examined herself as P.W.1
and got marked the documents as Exs.P1 to P18. On the other
hand, the defendant No.1 examined himself as D.W.1 and
defendant No.4 examined himself as D.W.2 and got marked the
documents as Exs.D1 to D43.
7. The Trial Court having considered both oral and
documentary evidence placed on record, dismissed the suit and
also dismissed the counter claim made by the defendant Nos.3
and 4. Being aggrieved by the judgment and decree of the Trial
Court, the defendant Nos.3 and 4 have filed the appeal in
R.A.No.86/2014 and plaintiffs have filed the appeal in
R.A.No.87/2014 before the First Appellate Court. The First
Appellate Court, having considered the grounds urged in the
appeals and the application filed under Order 41, Rule 27 read
with Section 151 of C.P.C., formulated the point whether the
appellants in R.A.No.86/2014 have made out sufficient grounds
to produce additional evidence at appellate stage and also
formulated the point whether the Trial Court has committed an
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error of law and fact and interference by this Court in the
judgment and decree passed by the Trial Court is necessary.
8. The First Appellate Court, having reassessed the
material on record and also the application filed under Order
41, Rule 27 read with Section 151 of C.P.C. and the documents
which have been produced before the Court, considered both
the points together and comes to the conclusion that the Trial
Court has dismissed the claim of the plaintiffs with reference to
their share under Hindu Succession Act, 1956 in the share of
their father only on the ground that they have not challenged
the partition deed Ex.D4 and with reference to the plaintiffs,
Ex.D4 is not binding on them, as they are not parties to the
partition deed and the suit is filed within 12 years from the date
of partition deed. Hence, the Trial Court committed an error in
dismissing the suit in entirety and also considering the
application filed under Order 41, Rule 27 read with Section 151
of C.P.C. and in Para No.25 of the judgment, an observation is
made by the First Appellate Court that no relief is sought in
respect of Ex.D4 challenging the partition deed and defendant
Nos.3 and 4 have also not challenged the document of Ex.D4.
Hence, set aside the judgment of the Trial Court and allowed
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both the appeals and remanded the matter to the Trial Court
with a direction to receive the additional evidence sought to be
produced by the appellants in R.A.No.86/2014 and give
opportunity to both the sides to lead additional evidence, if any
and consider the present suit along with O.S.No.3/2014 which
was filed by the defendant Nos.3 and 4 questioning the very
document of Ex.D4-partition deed before the Trial Court. Being
aggrieved by setting aside the judgment of the Trial Court and
remanding the matter, these two appeals i.e., regular second
appeal and miscellaneous second appeal are filed before this
Court.
9. The main contention of the appellant-defendant
No.1 in the regular second appeal before this Court is that the
First Appellate Court has committed gross error in setting aside
the judgment and decree passed by the Trial Court and the
same reflects non-application of mind of the First Appellate
Court in allowing R.A.No.87/2014, as except Para Nos.23 and
24 of the judgment, the whole judgment speaks about allowing
the application filed by the respondent Nos.1 and 2 under Order
41, Rule 27 read with Section 151 of C.P.C. and ordering for
remanding the suit and nowhere, cogent reasons have been
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assigned as to what made the First Appellate Court to arrive at
such a conclusion.
10. It is also contended that the First Appellate Court
failed to note that the females were considered as coparceners
only from the date of the amendment of Section 6 of the Hindu
Succession Act, 2004 and to seek for an equal share and
coparcenaryship, father should be alive as on the date of the
amendment and in the present case, the father of the
respondent Nos.1 and 2 expired in the year 1998 itself and
even the partition deed was registered way back in the year
2002 itself. Hence, the very approach of the First Appellate
Court is erroneous and the First Appellate Court nowhere in the
whole body of its judgment has endeavored to render any
rational and level headed finding as to why the judgment of the
Trial Court needs to be reversed and no cogent reasons are
assigned. Hence, it requires interference of this Court to set
aside the judgment and decree passed in R.A.No.87/2014 and
the same requires to be set aside. The counsel also would
submit that this Court has to admit the appeal and frame
substantial question of law and in the absence of specific prayer
for declaration sought by the defendant Nos.1 and 2
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challenging the registered partition deed dated 30.01.2002, the
First Appellate Court has committed an error in setting aside
the judgment.
11. The main contention of the learned counsel for the
appellant-defendant No.1 in the miscellaneous second appeal
which was filed challenging the judgment and decree passed in
the appeal in R.A.No.86/2014 is that the First Appellate Court
committed an error in setting aside the judgment and decree
by allowing the application filed under Order 41, Rule 27 read
with Section 151 of C.P.C. and the documents sought to be
produced as additional evidence are not necessary for deciding
the case and those documents are only plaint, written
statement, issues and order sheet in O.S.No.3/2014 and the
production of documents clearly demonstrates the conduct of
the respondent Nos.1 and 2 and the First Appellate Court
without evaluating this aspect has blindly without application of
mind, erroneously allowed the application. The First Appellate
Court committed gross error in not noting that application for
leading additional evidence were filed by the parties, who are
defendant Nos.3 and 4 in the original suit and the documents
which have been sought to be produced as additional evidence
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are nothing but order sheet, plaint copy and written statement
in O.S.No.3/2014 and the First Appellate Court should have
been more cautious in allowing such an application. Hence, the
Trial Court rightly comes to the conclusion that the document of
Ex.D4 has not been challenged either by the plaintiffs or by the
defendant Nos.3 and 4 and not assigned sufficient reasons and
also not looked into very proviso of Order 41, Rule 27 read with
Section 151 of C.P.C. and even though there are no grounds to
allow the application filed under Order 41, Rule 27 read with
Section 151 of C.P.C., the First Appellate Court committed an
error in allowing the application and permitting the appellants
to produce additional documents before the Trial Court and
committed an error in remanding the matter to the Trial Court
to consider the suit afresh along with other suit in
O.S.No.3/2014. Hence, the very approach of the First
Appellate Court is erroneous.
12. Learned counsel appearing for the respondent
Nos.4 and 5 in both the appeals would vehemently contend
that the First Appellate Court rightly comes to the conclusion
that when the father namely, G.H. Mariyappa passed away
without executing any testamentary document and when the
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suit is filed for the relief of partition, the Trial Court ought to
have considered the claim of the plaintiffs and the same has
not been considered and the First Appellate Court, considered
the same and comes to the conclusion that since the properties
are ancestral joint family properties, rightly set aside the
judgment of the Trial Court and remanded the matter for fresh
consideration on account of additional documents which have
been placed before the First Appellate Court by the defendant
Nos.3 and 4 in other connected appeal.
13. It is the contention of the defendant Nos.3 and 4
that item Nos.6 to 8 of the suit schedule properties are their
self-acquired properties and the very approach of the Trial
Court is erroneous in dismissing the suit and also the counter
claim made by the defendant Nos.3 and 4. The learned counsel
for the defendant Nos.3 and 4 also vehemently contend that
the partition deed is executed only for borrowing loan and not
for partitioning the properties by metes and bounds and the
very observation of the Trial Court that suit is not filed
challenging the partition deed is erroneous when the suit was
also filed in O.S.No.3/2014 for the relief of declaration to
declare that the partition deed as null and void. It is also
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contended that the Trial Court ought to have considered both
the suits in O.S.Nos.24/2011 and 3/2014 and the same has not
been done and the judgment and decree in O.S.No.24/2011
was passed on 27.08.2014 without considering the fact that
already suit in O.S.No.3/204 was pending before the Court and
the very approach of the Trial Court is erroneous. Hence, the
First Appellate Court, taken note of the said fact into
consideration and the very contention of the learned counsel for
the appellant that the judgment and decree of the Trial Court is
set aside, in view of filing an application under Order 41, Rule
27 read with Section 151 of C.P.C. is not correct and in Para
No.22 of the judgment, the First Appellate Court comes to the
conclusion that the plaintiffs are also entitled for share in the
property of the father which was left by him without executing
any testamentary document and also considered the application
filed under Order 41, Rule 27 read with Section 151 of C.P.C.
14. It is also the contention of the learned counsel for
the defendant Nos.3 and 4 that the First Appellate Court taken
note of the fact that the documents sought to be produced by
way of additional evidence pertains to filing of suit in
O.S.No.3/2014, wherein specific relief is sought for a
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declaration to declare that the partition deed dated 30.01.2002
as null and void but, the Trial Court dismissed the suit on the
ground that either the plaintiffs or the defendant Nos.3 and 4
have not challenged the partition deed. Hence, the very
approach of the Trial Court is erroneous and the First Appellate
Court rightly set aside the judgment by allowing
R.A.Nos.86/2014 and 87/2014 and remanded the matter to
consider the same afresh along with the suit in O.S.No.3/2014.
Hence, no grounds are made out to allow the appeals and set
aside the judgment and decree of the First Appellate Court.
Therefore, no interference of this Court is warranted to admit
the appeals and frame substantial question of law.
15. Having heard the learned counsel for the appellant
and learned counsels for the respondents and also considering
the material available on record, this Court has to consider the
reasoning given by the First Appellate Court in setting aside the
judgment and decree of the Trial Court and allowing both the
appeals and remanding the matter to the Trial Court for fresh
consideration. Having perused the material on record, it is the
case of the plaintiffs before the Trial Court that suit schedule
properties are ancestral joint family properties. It is also their
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claim that their father G.H. Mariyappa got share when partition
took place between the father of the plaintiffs and his brothers
and the properties are Hindu joint family properties. Hence,
they are entitled for share in the properties. Though the
defendant No.1 denied the relationship between the parties,
but, no dispute with regard to the fact that the plaintiffs are the
sisters of defendant No.1 and defendant No.2 is also sister of
the plaintiffs and defendant Nos.1, 3 and 4 and no dispute with
regard to the relationship between the parties and the same
was also considered by the Trial Court.
16. It has to be noted that the averments of the plaint
is very clear that the other sister by name Bharathi died leaving
behind her husband, the two children, who are defendant Nos.5
to 7, who are also made as parties. It is also important to note
that there is no dispute with regard to the that G.H. Mariyappa,
got the property in the partition among the brothers. It is also
not in dispute that said G.H. Mariyappa passed away in the
year 1998 leaving behind the plaintiffs, his wife and other
children and the wife also passed away subsequently. The
records also disclose that the plaintiffs got married prior to
1985 and the fact that the father is one of the coparcener died
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intestate is not in dispute. However, the Trial Court committed
an error in not allotting share of the father to his legal heirs
and the same has been considered by the First Appellate Court
and in Para No.16 of the judgment of the Trial Court, the Trial
Court comes to the conclusion that partition took place on
30.01.2002 and the defendant Nos.3 and 4 have not challenged
the partition by filing the suit and the plaintiffs have not
challenged the partition deed dated 30.01.2002 and they have
instituted the suit for simple partition without seeking any
declaration and the very suit is not maintainable and this
reasoning is erroneous and the same is taken note of by the
First Appellate Court, while reversing the finding, particularly in
Para No.22 of the judgment, the First Appellate Court comes to
the conclusion that, on going through the judgment of the Trial
Court, it is clear that the Trial Court has dismissed the claim of
the plaintiffs with reference to their share under Hindu
Succession Act, 1956 in the share of their father only on the
ground that they have not challenged the partition deed Ex.D4
and with reference to the plaintiffs, Ex.D4 is not binding on
them, as they are not parties to the partition deed and the suit
is filed within 12 years from the date of partition deed. Hence,
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the Trial Court committed an error in dismissing the suit in
entirety and the reasoning of the First Appellate Court not
suffers from any infirmity.
17. It is also important to note that in the other appeal
in R.A.No.86/2014 filed by defendant Nos.3 and 4, they have
also filed an application under Order 41, Rule 27 read with
Section 151 of C.P.C. seeking permission of the Court to
produce additional evidence and the First Appellate Court taken
note of the scope of Order 41, Rule 27 read with Section 151 of
C.P.C. and considered the said application on three grounds
i.e., if the Trial Court rejected to receive the additional
evidence, which ought to have received it and if the parties
after exercise of due diligence it is not possible for them to
produce such evidence before the Trial Court or if the
documents or additional evidence are necessary for just
decision in the case. Under such circumstances, the Court can
receive those documents and also made an observation that, it
is the case of the appellants in R.A.No.86/2014 that the
proposed documents sought to be produced are essential
documents for just decision of the case and in Para No.26 of
the judgment, made an observation that on going through the
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judgment of the Trial Court, it is clear that the claim of the
plaintiffs i.e., their share in the property of their father was
rejected only on the ground that the relief of declaration
challenging Ex.D4 partition deed is not filed by defendant Nos.3
and 4 or the plaintiffs in the suit and the documents sought to
be produced are necessary for just decision in the case. Hence,
allowed the application.
18. It has to be noted that during the pendency of the
suit in O.S.No.3/2014, the suit in O.S.No.24/2011 was decided
though the defendant Nos.3 and 4 have already filed the suit
for the relief of declaration to declare that Ex.D4 partition deed
as null and void and in the suit in O.S.No.24/2011, they took
the specific contention that the said partition deed came into
existence only for the purpose of availing loan. The Trial Court
in O.S.No.24/2011 also framed additional issue whether the
defendant Nos.3 and 4 prove that registered partition deed
dated 30.01.2002 was executed for the limited purpose of
raising loans as alleged and when the other suit is filed to
declare the partition deed as null and void and the said suit is
also pending in O.S.No.3/2014 before the very same Court, the
Trial Court ought to have clubbed the same together and
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decided the same, since the issue involved in O.S.No.24/2011
and also the allegations made in O.S.No.3/2014 also have
bearing on the issue involved between the parties and the fact
that O.S.No.3/2014 was also pending is not in dispute and
when the additional documents are produced, particularly plaint
stating that the suit is filed seeking the relief of declaration to
declare the document of Ex.D4-partition deed as null and void
and the very observation is also made by the Trial Court in Para
No.16 of the judgment.
19. I have already pointed out that the observation
made by the Trial Court that both the plaintiffs as well as the
defendant Nos.3 and 4 have not challenged the partition deed
at Ex.D4 is an error and when the issue involved between the
parties is with regard to the document of Ex.D4-partition deed
and also with regard to the share is concerned, the First
Appellate Court has not committed any error in setting aside
the judgment and decree by allowing both the appeals and the
very contention of the learned counsel for the appellant that
the First Appellate Court ought not to have set aside the
judgment in R.A.No.87/2014 merely because an application is
filed under Order 41, Rule 27 read with Section 151 of C.P.C.
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cannot be accepted and while setting aside the judgment
passed in O.S.No.24/2011, in Para No.22 of the judgment, the
First Appellate Court rightly comes to the conclusion that the
Trial Court has committed an error in dismissing the suit of the
plaintiffs in entirety and ought to have considered the fact that
the legal heirs of father, who died intestate have right in the
suit schedule properties and not only considered the said
ground and also taken note of the application filed under Order
41, Rule 27 read with Section 151 of C.P.C. and those
documents are also necessary to decide the issue involved
between the parties and when the suit is also pending before
the Trial Court in O.S.No.3/2014 and the issue involved
between the parties are interconnected, the First Appellate
Court rightly remanded the matter to the Trial Court with a
direction to receive additional evidence sought to be produced
by the appellants in R.A.No.86/2014 directing the Trial Court to
give opportunity to both the parties to lead additional evidence,
if any and also specifically made it clear that the present suit in
O.S.No.24/2011 has to be considered along with the suit in
O.S.No.3/2014.
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20. When such finding is given by the First Appellate
Court to give opportunity to all the parties to lead additional
evidence, if any to decide the issue involved between the
parties, I do not find any error committed by the First Appellate
Court in setting aside the judgment and decree of the Trial
Court and reasons are assigned by the First Appellate Court
while setting aside the judgment and decree of the Trial Court
by allowing R.A.Nos.87/2014 and 86/2014 in entertaining the
application filed for adducing additional evidence which are
necessary since, the Trial Court committed an error in coming
to the conclusion that the very partition deed at Ex.D4 was not
challenged either by the plaintiffs or by the defendants and
already suit was filed challenging the same in O.S.No.3/2014.
When such materials are available on record, the First Appellate
Court rightly comes to the conclusion that the judgment and
decree of the Trial Court requires to be set aside and matter
has to be considered afresh and rightly remanded the matter.
Hence, I do not find any error committed by the Trial Court in
setting aside the judgment and decree of the Trial Court and
remanding the matter and though the learned counsel for the
appellant raised some of the substantial question of law, the
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same cannot be entertained and while setting aside the
judgment of the Trial Court, reasons are given by the First
Appellate Court. Hence, no grounds are made out to invoke
Section 100 of C.P.C. to admit the regular second appeal and
the miscellaneous second appeal and frame any substantial
question of law.
21. In view of the discussions made above, I pass the
following:
ORDER
The regular second appeal in
R.S.A.No.1291/2017 and miscellaneous second
appeal in M.S.A.No.41/2017 are dismissed.
Sd/-
JUDGE
ST
