Karnataka High Court

Veeranna @ Veerakyathappa vs Ranganna on 12 February, 2024

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                        RSA No. 1259 of 2012




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 12TH DAY OF FEBRUARY, 2024

                                             BEFORE

                               THE HON'BLE MR JUSTICE H.P.SANDESH

                          REGULAR SECOND APPEAL NO.1259 OF 2012 (PAR)

                   BETWEEN:

                   VEERANNA @ VEERAKYATHAPPA
                   S/O HANUMANTHAPPA
                   AGED ABOUT 45 YEARS
                   R/AT SANTHEPET, SIRA TOWN
                   TUMKUR-572137
                                                                ...APPELLANT
                   (BY SRI. VIJAY KRISHNA BHAT M, ADVOCATE)
                   AND:

                   1.   RANGANNA
                        S/O KARIYAPPA
                        AGED ABOUT 44 YEARS

Digitally signed   2.   VEERAKYATHAPPA
by SHARANYA T           S/O KARIYANNA
Location: HIGH
COURT OF                AGED ABOUT 60 YEARS
KARNATAKA
                   3.   HANUMANTHARAYAPPA
                        S/O NAGANNA
                        AGED ABOUT 58 YEARS

                   4.   SMT. LATHA
                        w/O S.R. NAGANNA
                        AGED ABOUT 44 YEARS

                        RESPONDENTS 1 TO4 ARE
                        R/AT SANTHEPET,
                        SIRA TOWN - 572 137
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                                     RSA No. 1259 of 2012




5.   HANUMANTHAPPA
     S/O HANUMANTHAPPA
     AGED ABOUT 74 YEARS

6.   ERANNA
     S/O NAGANNA
     AGED ABOUT 40 YEARS

7.   NAGARAJU @ NAGANNA
     S/O NAGANNA
     AGED ABOUT 50 YEARS

     RESPONDENTS 5 TO 7 ARE
     R/AT SANTHEPET, SIRA TOWN
     TUMKUR DISTRICT - 572 137
                                           ...RESPONDENTS

(BY SRI PRADEEP KUMAR R H, ADVOCATE FOR
 SRI SHANMUKHAPPA, ADVOCATE FOR R1-R4;
 R6 & R7 SERVED;
 V/O DT.27.03.2019, APPEAL AGAINST R5 IS
 DISMISSED AS ABATED)

      THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 21.03.2012 PASSED IN
R.A.NO.30/10 AND R.A.NO.31/10 ON THE FILE OF SENIOR
CIVIL JUDGE AND J.M.F.C., SIRA AND ETC.

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

1. This matter is listed for admission. Heard the

learned counsel for the appellant and also the counsel

appearing for respondents.

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2. The factual matrix of case of plaintiff/appellant

before the Trial Court in O.S.No.127/2006 seeking the

relief of partition and separate possession. It is contended

that one Hanumanthappa who is the grand father of the

plaintiff had three brothers, first one is Kariyappa, who

died leaving behind two sons who are defendant Nos.2 and

3, second brother by name Hanumantharayappa and

Eranna. Nagaraju @ Naganna, who are defendant Nos.4 to

6. The third brother Eranna is no more and he has no legal

heirs. The plaintiff and defendants are constituted Hindu

Undivided joint family, the suit schedule properties are

Hindu undivided joint family properties of plaintiff and

defendants. The defendants all together in order to cause

loss and injustice to plaintiff, created an unregistered

partition deed, in which they allotted little extent of 20

guntas of land to the first defendant, who is the father of

the plaintiff in Sy.No.19 of Mallikapura village. In fact the

first defendant has got right to one third share out of total

extent of 12 acre 25 guntas. There is clear imbalance of

partition of this property and the defendants all together

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have not allotted any share in other items of the suit

schedule to the first defendant, which also caused very

much injustice to the plaintiff and as per the illegal and

improper partition, a mutation order also passed to change

the khata and pahanies in the name of the first defendant

mentioned as Hanumajja against whom 20 guntas is

mentioned, which is illegal mutation order and these are

other lands in which no share is allotted to the father of

the plaintiff and it is contended that they caused injustice

to the plaintiff and hence, the suit is filed for the relief of

partition and separate possession of his proper and lawful

share in the suit schedule properties.

3. It is also contended in the plaint that partition

deed dated 21.12.2000 is illegal and imbalance share was

allotted to defendant No.1. On the other hand, consequent

upon appearance made by the defendant contended that

there was already a oral partition between grand father of

plaintiff and father of defendants and they were residing

separately with their respective share as described in

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paragraph No.6 of the written statement and also

contended that father of the plaintiff has sold Sy.No.9 in

favour of defendant Nos.2 and 3 under registered sale

deed dated 15.04.1971. The defendant No.2 sold the

property in favour of the defendant No.7, the same is also

not binding.

4. The Trial Court having considered the pleadings

of the parties, framed the issue as whether the plaintiff is

also entitled for a share in the suit schedule property and

whether the sale transactions are binding and whether the

properties are the undivided joint family properties. The

Trial Court has given opportunity to both the parties to

lead evidence and accordingly the plaintiff examined as

PW1 and got marked 13 documents as Ex.P1 to Ex.P13. In

order to prove the contention of the defendants, the

defendant No.2 himself is examined as DW1 and

defendant No.6 examined as DW2, defendant No.7

examined as DW3 and in total produced 21 documents

and the same are marked as Ex.D1 to Ex.D21.

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5. The Trial Court having considered the material

available on record, answered both the issue Nos.1 and 2

as affirmative in coming to the conclusion that properties

are undivided joint family properties and also partition

dated 21.12.2000 is illegal and the same is imbalanced.

The contention of the defendants have not been accepted

by answering issue Nos.3 and 4 and answered issue No.5

as affirmative that sale deed executed by defendant No.2

in favour of defendant No.7 is not binding on the plaintiff.

The Trial Court dismissed the suit in coming to the

conclusion that the suit filed for partial partition is not

maintainable. The Trial Court also comes to the conclusion

that though the plaintiff has established his case, further

he has established that the sale deed executed by the

defendant No.2 in respect of suit schedule property is not

binding and partition deed is illegal to an extent of share

of his father is concerned. The sale deed executed by

defendant No.2 is liable for cancellation, but the plaintiff

has filed the suit only for partition and separate possession

and not sought for relief in the entire land in the instant

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case. The plaintiff ought to have filed a suit for entire land,

since he contended that there is no partition between the

parties to the suit. Under such circumstances, the sale

deed not liable for cancellation without adding all the

lands. Being aggrieved by the said judgment and decree,

both the plaintiff as well as defendant Nos.2, 3, 5 and 7

have filed an appeal in R.A.No.30/2010 and the plaintiff's

appeal is numbered as R.A.No.31/2010. Both the appeals

are considered together.

6. The Trial Court also taken note of the fact that

the appellant in R.A.No.31/2010 i.e., plaintiffs have filed

the application under Order 41 Rule 27 of CPC and the

First Appellate Court having considered the grounds urged

in both the appeals formulated the points as follows:

1) Whether the appellants in both the appeals have made out a ground that the judgment and decree passed by the Trial Court is not accordance with law, which requires interference by this Court?

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2) Whether the appellant has made out a ground to allow the I.A filed under Order 11 Rule 27 of CPC?

3) What Order?

7. The First Appellate Court having considered the

grounds urged in both the appeals, answered point No.1

as partly affirmative and partly negative and point No.2 as

affirmative in coming to the conclusion that the appellant

in R.A.No.31/2010 made out ground to produce the

additional document. The First Appellate Court having

considered the grounds urged in the application under

Order 41 Rule 27 of CPC in short reasoning comes to the

conclusion that the appellant has made out the grounds

that those additional documents are necessary. The First

Appellate Court having considered the grounds urged in

the application filed under Order 41 Rule 27 of CPC comes

to the conclusion that the appellant has made out the

grounds that those additional documents are necessary to

adjudicate the matter in respect of properties which they

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sought for partition and even the respondents are also not

filed any objection to the said application and allowed the

said application. The appeal filed by the defendants is

allowed setting aside the finding of the Trial Court in

respect of issue Nos.1 to 5 and dismissed the appeal filed

by the plaintiff in coming to the conclusion that the

plaintiff is not entitled for any share. Being aggrieved by

the findings of the First Appellate Court, the plaintiff has

filed the present second appeal before this Court.

8. The learned counsel appearing for the appellant

would contend that the First Appellate Court committed a

serious error in reversing the well considered findings of

the Trial Court on Issue Nos.1, 2 and 5 and the First

Appellate Court failed to take note of the fact that the Trial

Court had dismissed the suit only on the ground that all

the family properties are not included in the suit and it

amounts to partial partition. This lacuna was overcome by

amending the plaint before the appellate Court and all the

family properties are included, the First Appellate Court

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ought to have allowed the appeal. When the First

Appellate Court allowed the application filed under Order

41 Rule 27 of CPC, ought to have given an opportunity to

lead evidence and the same was not done. The First

Appellate Court failed to note that deed of partition set up

by the defendants is not registered as required under law

and the same cannot be relied upon to prove partition.

There is no other reliable evidence to show that there is a

partition in the family. Mere selling of a portion of

undivided right by the father of the plaintiff could not have

been taken as the proof of partition, that too when there is

mismatch in survey numbers claimed to have been sold

and what is mentioned in the sale deed. The counsel also

would vehemently contend that the First Appellate Court

order suffers from non-application of mind. The First

Appellate Court has taken extraneous and irrelevant facts

and events into consideration while dismissing the appeal.

Non filing of the suit by defendant No.1/father of the

appellant cannot be taken as an exception. The plaintiff

being the member of the joint family has got all right to

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file the suit. There is no compulsion in law that only the

head of a particular branch of the family has to file a suit

for partition. The lower appellate Court is contradicting

itself in observing at page 15 that though it may be

admitted that there is no partition among the brothers,

but really they have got partitioned and residing

separately and also contend that in the absence of

documentary proof, ought not to have dismissed the suit.

9. The counsel in his arguments would contend

that the Court has to admit the appeal and frame the

following substantial question of law:

(a) Whether the First Appellate Court is justified in holding that there is a prior partition based on revenue entries and an unregistered partition deed?

(b) Whether the First Appellate Court is justified in holding that the plaintiff has not established issue No.1 regarding establishing suit properties as joint family properties as there were few sale transactions?

(c) Whether the appreciation of oral and documentary evidence by the Courts below is perverse and capricious?

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(d) Whether the Courts below are justified in dismissing the suit for partition when it is established that there is no prior partition and the properties are joint family properties?

10. Per contra, the learned counsel appearing for

the respondents would vehemently contend that the First

Appellate Court reconsidered the material available on

record and taken note of the fact that the sale transaction

was taken place and also it is specific case of the

defendants that already there was a partition and the

parties have acted upon and some of the properties have

been sold including the property of the father of the

plaintiff and the Trial Court discussed the same in detail

hence, it does not requires any interference.

11. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it discloses that the case of the

plaintiff that the suit schedule properties are Hindu

undivided joint family properties. On the other hand, it is

the contention of the defendants that already there was a

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partition and some of the sale transactions were also

taken place and the First Appellate Court having

considered the material available on record set aside the

order passed on Issue Nos.1 to 5 and additional issue No.1

and allowed the appeal filed by the defendants and

dismissed the appeal filed by the plaintiff.

12. The First Appellate Court considered the IA filed

by the plaintiff under Order 41 Rule 27 of CPC and allowed

the said application in coming to the conclusion that those

documents are necessary for adjudication. When the

application filed under Order 41 Rule 27 of CPC is allowed,

the First Appellate Court ought to have given an

opportunity to the parties to lead additional evidence but

in the case on hand, not given any opportunity to the

plaintiff/appellant to get it marked those documents and

allow the appellant to lead oral and documentary evidence

based on those documents or the First Appellate Court

ought to have recorded the evidence by itself under Order

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41 Rule 28 when the finding is given that all those

documents are necessary to decide the issue.

13. It is important to note that the Trial Court

dismissed the suit of the plaintiff only on the ground that

all the family properties were not included while seeking

the relief of partition and partial partition cannot be

granted. The First Appellate Court though allowed I.A.

filed under Order 41 Rule 27 of CPC, discussed in detail

with regard to merits of the case but no opportunity is

given to both the parties to lead their evidence based on

those documents. In paragraph 17, while considering point

No.1, the First Appellate Court taken note of marking of

documents of sale deeds which have been placed and fails

to take note of the contention of the plaintiff that if any

such alleged partition dated 21.12.2000, the same is

mismatched and there is no partition by metes and bounds

and nothing is discussed in this regard by the First

Appellate Court. No doubt, in paragraph 18 also, the First

Appellate Court discussed with regard to fact that the

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documents are standing in the name of different persons

and selling of property is in respect of Sy.No.17 as

described in the sale deed. In paragraph 22 also, the First

Appellate Court comes to the conclusion that there is no

partition in the family. When plaintiff has not established

that the suit schedule properties are the joint Hindu family

properties and partition effected in the year 2000 is

improper, then naturally he will not get any share in the

suit schedule property. Hence, the First Appellate Court

comes to the conclusion that the plaintiff has not made out

a case to show that there is no partition in the family and

the partition which was effected is improper.

14. Once the First Appellate Court comes to the

conclusion that additional documents which have been

placed before the Court are necessary for adjudication,

ought to have given an opportunity by remanding the

matter to the Trial Court to get it marked those documents

and lead evidence by the parties, the same has not been

done. The First Appellate Court also not exercised its

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jurisdiction by recording the evidence by itself after

allowing the application but proceeded on merits without

giving any opportunity and not discussed anything about

the documents which have been produced by filing an

application under Order 41 Rule 27 of CPC. Hence, the

First Appellate Court committed an error in exercising its

jurisdiction. When the appeal is filed being aggrieved by

both the parties and those appeals are pending for

consideration, First Appellate Court ought to have

considered both oral and documentary evidence placed on

record of each parties as well as the question of law and

the question of fact since the First Appellate Court is the

final Court for giving finding on facts but same has not

been properly exercised. Hence, the matter requires to be

remanded to the First Appellate Court to consider the

matter afresh as observed by this Court while disposing of

the second appeal.

15. In view of the discussions made above, I pass

the following:

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ORDER

The appeal is allowed.

The impugned judgment and decree dated

21.03.2012 passed in R.A.Nos.30/2010 and

31/2010 are set aside and the matter is

remitted back to the First Appellate Court to

consider the matter afresh in view of the

observations made by this Court.

The parties are directed to appear before

the First Appellate Court on 11.03.2024 without

expecting any separate notice from the First

Appellate Court since order passed by this

Court itself is a notice to both the parties.

The First Appellate Court is directed to

consider both the appeals within a period of six

months from 11.03.2024 since the suit is of the

year 2006 and the appeals of the year 2010.

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The learned counsel appearing for both