Karnataka High Court
Gunde Rao S/O Late Vihtal Rao And Anr vs Umesh S/O Late Vithal Rao And Anr on 4 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RFA No. 200028 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 200028 OF 2023
(PAR/POS)
BETWEEN:
1. GUNDE RAO S/O LATE VITHAL RAO,
AGED ABOUT 65 YEARS, OCC: AGRICULTURE,
R/O PLOT NO. 115, NGO COLONY,
KALABURAGI-585103.
2. RAMESH S/O LATE VITHAL RAO,
AGED ABOUT 63 YEARS, OCC: AGRICULTURE,
R/O PLOT NO. 115, NGO COLONY,
KALABURAGI-585103.
...APPELLANTS
Digitally signed (BY SRI KUMMATHI VENKATESULU, ADVOCATE)
by SHIVALEELA
DATTATRAYA AND:
UDAGI
1. UMESH S/O LATE VITHAL RAO,
Location: HIGH
COURT OF AGED: 56 YEARS, OCC: AGRICULTURE,
KARNATAKA R/O KARCHKHED VILLAGE,
TQ. CHINCHOLI, DIST. KALABURAGI-585227.
2. SUKANYA W/O PRAKASH,
AGED: 61 YEARS, OCC: HOUSEHOLD,
R/O DEVI APARTMENTS, FLAT NO. 3,
VISHWAJYOTHI COLONY, SHIVASHAKTI NAGAR,
KOTNOR MATHA (D), KALABURAGI TALUK,
DIST. KALABURAGI-585107
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R1 AND R2)
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RFA No. 200028 of 2023
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC, PRAYING TO SET ASIDE THE DECREE AND
JUDGMENT DATED 24.01.2023 PASSED IN O.S.NO.22 OF 2018
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AT
CHINCHOLI AND DISMISSED THE SUIT WITH COSTS AND TO
PASS SUCH OTHER ORDER OR ORDER THE APPELLANTS ARE
ENTITLED TO.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
aggrieved by the judgment and decree dated 24.01.2023
passed in O.S.No.22/2018 (hereinafter referred to as 'Trial
Court' for short), by which the Trial Court decreed the suit
filed by the plaintiff/respondent No.1 for partition granting
1/4th share to the plaintiff and defendants each.
2. It is the case of the plaintiff that he is the
younger brother of defendants No. 1 to 3 and that they
are the sons and daughters of one late Vithalrao and his
wife Gangabai, who are no more. The suit properties
belonged to said Vithalrao and late Gangabai and on their
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demise they being their children succeeded to the same
and are living in a undivided Hindu joint family and there
has been no partition between the plaintiff and the
defendants. Defendant No.1 was misusing the income
arising out of the joint family properties as such the
plaintiff requested for his share, the same was declined.
Hence, sought for 1/4th share in the suit property.
3. In the written-statement filed by defendants
No.1 and 3 relationship between the plaintiff and the
defendants is admitted. It is also admitted that the suit
schedule properties are the ancestral properties of the
plaintiff and the defendants. It is also admitted that in a
partition that was entered into between their father-late
Vithalrao and his brothers, the suit properties was allotted
to the share of Vithalrao. It is also admitted that
subsequent to demise of Vithalrao and Gangabai plaintiff
and the defendants have succeeded to the suit properties.
However, it is contended that in the year 2011, there was
a partition between the plaintiff and the defendants in
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terms of which the plaintiff has been allotted two lands
survey numbers i.e., survey No.26/2 measuring 6 acre 8
guntas and survey No.11/1 measuring 2 acres 39 Guntas
of Karchkhed Village, Chincholi Taluk, Kalaburagi District.
Ever since then the plaintiff has been enjoying the said
properties as owner and possessor thereof. That the
plaintiff has deliberately suppressed the said fact before
the Court only to unlawfully gain himself.
4. It is contended that the father of the plaintiff
and defendants had performed the marriage of defendant
No.2 and had fulfilled all the formalities and
responsibilities. As such she was not entitled for any share
in the suit properties. That since the plaintiff has already
received his share in the suit properties namely Item No.
'A' and 'D', his request for partition was declined. Hence,
sought for dismissal of the suit.
5. Based on the pleadings, the Trial Court framed
the following issues for its consideration;
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1. Whether plaintiff proves that the suit schedule
properties are ancestral and joint family
properties of plaintiff and defendants?
2. Whether plaintiff is entitled for relief's sought
for?
3. What order and decree?
6. The plaintiff examined himself as PW1 and two
more witnesses examined as PW2 and PW3 and exhibited
16 documents marked as per Ex.P1 to P16. Defendant
No.1 examined himself as DW1, another witness examined
as DW2 and defendant No.2 had been examined as DW3.
The evidence of DW2 has been expunged and 17
documents have been marked on behalf of defendants as
per Ex.D1 to D17.
7. On appreciation of evidence, the Trial Court
answered issue Nos.1 and 2 in the affirmative and
consequently decreed the suit as sought for. Being
aggrieved by the same the appellants/defendants are
before this Court.
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8. Learned counsel appearing for the
appellants/defendants reiterating the grounds urged in the
memorandum of appeal submitted that;
(a) though in the written-statement
appellants/defendants herein had admitted relationship,
nature of the properties as well as the partition that had
taken place between the father of the parties and his
brothers he submits that later on perusal of record it was
found that there was no partition of the ancestral
properties between their father and his brothers as
pleaded by them. He submits even PW1 during his cross-
examination has admitted that suit property formed part
of the ancestral property of late Gopalrao, who is the
grandfather of the parties and he had passed away leaving
behind six sons and two daughters namely Narsinga Rao,
Raghavendra Rao, Vithal Rao, Srinivas Rao, Panduranga
Rao, Vaman Rao, Smt. Padmavati Bhai and Shantha Bhai
and that there was no partition amongst the children of
said Gopalrao.
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(b) He submits that this aspect of the matter has
not been appreciated by the Trial Court even when the
same was brought to its notice at the time of argument.
He submits that since there was no effective partition of
the ancestral properties amongst the family members of
Gopalrao, the plaintiff could not have filed the present suit
claiming the suit properties to be the properties allotted to
the share of their father Vitalrao.
(c) He further submits that the suit also suffers
from non-joinder of parties in which all other children of
Gopalrao ought to have been made as a party.
(d) He submits that the oral partition was not
acceptable in view of the law laid down by the Hon'ble
Apex Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and others reported in (2020) 9 SCC 1.
(e) He submits appellants have also filed an
application under Order 41 Rule 27 of Code of Civil
Procedure, 1908 to bring on record the documents being
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mutation register extracts listed in the application, which
would prove that Vitalrao did not have any exclusive right
over the suit properties. He submits that said documents
are necessary and essential to prove that there had been
no family partition amongst the children of Gopalrao. He
submits that the documents are not available when the
matter was being considered the Trial Court. As such,
seeks for allowing the application and the appeal.
9. Per contra, learned counsel appearing for the
respondents/plaintiffs submits that the contention of the
plaintiffs have been unequivocally admitted by the
defendants in their written statement and an attempt had
been made only at the last stage of the proceeding before
the Trial Court to introduce the plea of family properties of
Gopalrao remaining intact without any partition, which has
been rightly answered by the Trial Court. He submits that
once the defendants had admitted their father Vithalrao
and their mother Gangabai being the owners of the
property and they having failed to establish oral partition
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of the year-2011, they cannot be permitted to retract from
the said admission. As regard the application for
production of document is concerned, he submits that the
appellants have made no grounds for allowing of the
application and hence, seeks for dismissal of the same.
10. Heard and perused the records.
11. The points that arise for consideration is:
"Whether the Trial Court is justified in
holding that suit schedule properties are the joint
family properties of plaintiff and defendants and
granting 1/4th share to the parties"?
12. From the perusal of the pleadings made in the
plaint and the written statement as extracted hereinabove,
it is clear that plaintiff and the defendants are the children
of one Vithalrao and his wife Gangabai. Defendants have
categorically admitted in the written statement the suit
properties were the ancestral properties that were
possessed and enjoyed by Vithalrao and his wife Gangabai
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during their lifetime. The suit properties had been allotted
to the share of their father Vitalrao in the partition that
had been entered into between him and his brothers. The
only contention urged by the defendants in the written-
statement is about a purported oral partition that had
been entered into in the year-2011, in which, the plaintiff
had been allotted land in survey No.26/2 measuring 6
acres 8 guntas and survey No.11/1 measuring 2 acres 39
guntas. As such, it was contended that the plaintiff was
not entitled for the share in the suit property.
13. Since there is an admission on the aspect of
nature and the ownership of the property and also there is
an admission with regard to the relationship between the
plaintiff and the defendants, unless the defendants prove
and establish the partition of the year 2011, as contended
in the written statement in the manner known to law, the
claim of the plaintiff cannot be denied.
14. As rightly taken note of by the Trial Court, in
the entire written-statement except raising the contention
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of there being an oral partition in the year-2011, the
defendants have agreed, accepted and admitted the case
of the plaintiff in its entirety. However, during the final
argument, learned counsel for the defendants have sought
to set up a plea that their grandfather Gopalrao had eight
children and that there was no partition amongst them
and as such the plaintiff could not have maintained the
suit without impleading them as a parties to the suit. The
Trial Court has adverted to the said aspect of the matter,
at paragraph 20 of the judgment wherein, it has held that
when the one hand the defendants have contended that
there was an oral partition in the year 2011 between the
plaintiff and the defendants and on the other-hand they
could not have raised the plea of there being no partition
at all between children of Gopalrao, i.e., between their
father and his brothers. Said contention raised by the
counsel for the defendants at the stage of the argument in
the absence of any pleading, the Trial Court has declined
to accept the same.
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15. Further, the plea of oral partition of the year-
2011 has also been declined by the Trial Court in view of
the law laid down by the Hon'ble Apex Court in the case of
Vineeta Sharma Vs. Rakesh Sharma and others
reported in (2020) 9 SCC 1, wherein it has held that a
plea of partition based on oral evidence alone cannot be
accepted, in view of the explanation of Section 6(5) of
Hindu Succession Act, 1956 and the same is to be rejected
outrightly. It is now a settled law that there cannot be
any oral partition subsequent to the amendment of Section
6 of the Hindu Succession Act. Therefore, no irregularity or
illegality can be found with the conclusion arrived at by the
Trial Court.
16. As regards the application filed by the
appellants under Order 41 Rule 27 of Code of Civil
Procedure seeking production of document is concerned,
the appellants are seeking to produce 9 documents in the
nature of mutation Register extracts. At paragraph 4 of
the affidavit accompanying the said application it is
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pleaded that the defendants could not produce the said
documents due to there non-availability. That they
received the said document only on 27.01.2023 and the
said documents were necessary to prove the contention
that the suit properties were never subjected to any kind
of partition during the lifetime of their father Vithalrao.
Further at paragraph No.6 on the affidavit accompanying
the application, it is pleaded that the documents sought
to be produced are essential to prove and establish the
title of the appellants over the suit schedule property. The
aforesaid contents of the affidavit filed along with the
application, apart from being mutually conflicting and
contradictory would not satisfy the requirement of law for
production of additional documents as provided under
Order 41 Rule 27 of Code of Civil Procedure, which reads
as under:
"27. Production of Additional evidence in
Appellate Court.-
(1) The parties to an appeal shall not be entitled
to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if-
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(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought to
have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the exercise
of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the
decree appealed against was passed, or
(b) the Appellate Court requires any document to
be produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be examined."
(2) Whenever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission".
17. The documents sought to be produced are
apparently in support of the contention of the defendants
that there was no partition of the ancestral properties
amongst the brothers of Vithalrao. There is no
foundational plea in this regard in the written statement.
In the absence of any pleading to the said extent,
defendants cannot claim any right or entitlement to
produce the documents in support of a non-pleaded
contention. Therefore, the plea of non-availability of the
document at the time of leading evidence before the Trial
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Court is of no consequences. At any rate, the other ground
urged in the application is that the said documents are
necessary to prove and establish the title of the appellants
over the entire suit schedule property. Even the said
ground as urged runs contrary to the case of the
defendants. Besides, the documents are not required for
disposal of the case inasmuch as defendants themselves in
the written-statement have admitted the suit properties to
be the ancestral properties belonging to their father
Vitalrao and upon whose demise, plaintiff and defendants
having succeeded to the same. The defendants having
failed to prove their plea of oral partition of the year-2011
cannot now be heard to say there was no partition at all,
either amongst the family members of their father Vitalrao
or amongst the plaintiff and defendants after his demise.
18. Learned counsel for the plaintiffs/respondents
submit that even the document produced by the
defendants in Ex.D series would indicate that after the
demise of Vitalrao, the suit properties were mutated in the
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joint names of mother of the plaintiffs and defendants and
the plaintiffs and defendants which continued till filing of
the suit as there was no partition. He further submitted
the said documents support the case of the plaintiff.
19. For the aforesaid reasons, no grounds are made
out for allowing the application seeking production of
additional documents.
20. No grounds are made out for interference with
the judgment and decree passed by the Trial Court.
21. Accordingly, the appeal is dismissed, the
judgment and decree passed by the Trial Court is
confirmed.
Sd/-
(M.G.S.KAMAL)
JUDGE
SDU,KBM
CT:PK
