Karnataka High Court
Sri C V Yogendranath vs Smt H Indrammani on 21 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR FIRST APPEAL NO.1086/2011 (PAR)
BETWEEN:
SRI. C.V.YOGENDRANATH
S/O LATE SRI. VEERAPPA
SINCE DECEASED BY HIS LRS.
1. SMT. C.Y.KAMALA
W/O LATE SRI. C.V.YOGENDRANATH
AGED ABOUT 65 YEARS
R/AT NO.24/1, YELEPETE
SOMWARPET ROAD, MAHADEVPET
MADIKERI-571201.
2. SMT. SEEMA RAMESH
W/O SRI. K.RAMESH
D/O LATE SRI. C.V.YOGENDRANATH
AGED ABOUT 47 YEARS
R/AT NO.30/1, YOGA NILAYA
4TH CROSS, NAGARABHAVI 2ND STAGE
4TH BLOCK, MALAGALA MAIN ROAD
BEHIND SBI, BENGALURU-560091.
3. SMT. SONA C.Y.
W/O SRI. JAYDEV B.S.,
D/O LATE C.V. YOGENDRANATH
AGED ABOUT 45 YEARS
R/AT SOMWARPET ROAD
MAHADEVPET IND. ELF GAS GODOWN
MADIKERI-571201.
2
4. SMT. C.Y.NITHYA
W/O SRI. PRASHANTH
D/O LATE C.V.YOGENDRANATH
AGED ABOUT 41 YEARS
R/AT NO.24/199, OPP. ELF GAS GODOWN
MAHADEVPET, MADIKERI
KODAGU DISTRICT-571201.
(AMENDED VIDE COURT ORDER DATED 26.02.2024)
... APPELLANTS
(BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR
SRI. R.B.SADASIVAPPA, ADVOCATE)
AND:
1. SMT. H. INDRAMMANI
W/O SRI. H.S. MAHESH
AGED ABOUT 64 YEARS
R/AT NO.349, 10TH "B" MAIN
NANDAGOKULA, I FLOOR
JAYANAGAR III BLOCK
BANGALORE-560011.
2. SMT. GOWRAMMANNI
W/O LATE MAHADEVARAJA WODEYAR
MAJOR, R/AT NO.137,
10TH MAIN, KUVEMPU NAGAR
KAMAKSHI HOSPITAL ROAD
MYSORE-570001.
3. SRI. MAHADESHWARA
S/O LATE MAHADEVARAJA WODEYAR
AGED ABOUT 47 YEARS
R/AT SNEHA NILAYA
NO.156, EGF BLOCK
KUVEMPU NAGARA
MYSORE-570001.
3
4. SMT. SHARADAMMANNI
D/O LATE MAHADEVARAJA WODEYAR
AGED ABOUT 49 YEARS
R/AT NO.137, 10TH MAIN
KAMAKSHI HOSPITAL ROAD
KUVEMPU NAGARA
MYSORE-570001.
5. SMT. SUNDARAMMANNI
D/O LATE MAHADEVARAJA WODEYAR
SINCE DECEASED BY HER LRS
5(a) SRI. M.D.DEVARAJU
S/O LATE SRI. M.B.DEVAIAH
AGED ABOUT 37 YEARS
5(b) SRI. M.D.MANJESH
S/O LATE M.D.DEVARAJU
AGED ABOUT 37 YEARS
5(c) SRI. M.D.MANOHAR
S/O SRI. M.D.DEVARAJU
AGED ABOUT 35 YEARS
ALL ARE R/AT NO.9, AYODHYA NAGAR
SHIVARAMAPURA 2ND STAGE, MYSORE.
(AMENDED VIDE COURT ORDER DATED 06.12.2016)
6. SRI. G.T.RAGHAVENDRA
S/O LATE G.S.THIMMAPPAIAH
AGED ABOUT 67 YEARS
R/AT "DWARAKA"
JUNIOR COLLEGE ROAD
MADIKERI-571201. ... RESPONDENTS
(BY SRI. N.RAVINDRANATH KAMATH, SENIOR COUNSEL FOR
SRI. B.S.BASAVARAJU, ADVOCATE FOR R1;
SRI. SRIHARSHA R. LONDHE, ADVOCATE FOR R6;
4
VIDE ORDER DATED 22.08.2013
NOTICE TO R2 TO R4 ARE HELD SUFFICIENT;
R2, R3, R4, R5(a) - SERVED; R5(b) - SERVED,
VIDE ORDER DATED 03.11.2016,
NOTICE TO R5(c) IS HELD SUFFICENT)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.03.2011
PASSED IN O.S.NO.47/2001 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MADIKERI, DECREEING THE SUIT FOR DECLARATION,
PARTITION SEPARATE POSSESSION AND MESNE PROFITS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.01.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for appellants and learned Senior
counsel for respondent No.1 and learned counsel for respondent
No.6.
2. The factual matrix of the case of the respondent
No.1/plaintiff before the Trial Court is that she is having 1/10th
share in the suit schedule properties and sought other relief of
mesne profits and also the relief of declaration that sale deed
dated 25.08.2000 alleged to have been executed by defendant
Nos.1 to 4 in favour of defendant No.5 is not binding on the
plaintiff and the same is a sham document and not supported by
any valid consideration and tainted with fraud. While seeking
such relief, it is contended that plaintiff, defendant Nos.2, 3 and
4 are daughters and son and defendant No.1 is the wife of late
Mahadevaraja Wodeyar, who are all the members of Joint Hindu
Family, who have inherited large extent of lands in Appangala
Heravanadu Village, which formerly belonged to the family of
erstwhile Raja of Kodagu District. The suit schedule properties
formerly belonged to the great grand-father of the plaintiff by
name late Sadashivaraja and these properties were being
enjoyed by plaintiff's father and his two brothers by name
Basavaraja Wodeyar and Lingaraja Wodeyar and late
Smt.Parvathammaji and under registered partition deed dated
11.01.1954, they divided all their family properties by metes and
bounds and started enjoying the same separately and under
registered partition deed, her father was allotted 65 acres of
Jamma bane land in Sy.No.1/1 which is known as Kumbara
Hadlu Estate and another 14.41 acres of land in Sy.No.82 which
is known as Atti Hadlu of Heravanadu Village, among other
properties, which are described in the suit schedule hereto, and
after the said partition, herself, her father and defendant Nos.1
to 4 were in joint possession and enjoyment of the schedule
properties and other properties. Mahadevaraja Wodeyar died on
27.05.1978 intestate leaving behind the plaintiff and defendant
Nos.1 to 4 as his sole legal heirs and the defendant Nos.1, 3 and
4 and plaintiff each are entitled to 1/10th share in the suit
schedule properties held by late Mahadevaraja Wodeyar and the
defendant No.2 is entitled for 3/5th share in the properties held
by her father and in respect of the properties held by her father,
under the registered partnership deed pooled the property of 50
acres on 25.03.1970 to manage and cultivate the said property
by taking one Dr. B.K. Nanjundeshwara and others as partners
under the name and style 'Kumbara Hadlu Estate'.
3. It is also contended that the said
Dr.B.K.Nanjundeshwara on the same day entered into lease
agreement for a period of 50 years and her father died on
27.05.1978 and Dr. B.K. Nanjundeshwara died in the year 1983,
thereafter, there was litigation filed by the legal heirs of Dr. B.K.
Nanjundeshwara before this Court in O.S.No.58/85 and
O.S.No.31/84 on the file of Prl. Munsiff, Madikeri which were
dismissed and subsequently, Kumbara Hadlu Estate partnership
firm was reconstituted among the legal heirs of Mahadevaraja
Wodeyar, Dr. B.K. Nanjundeshwara and others, and the said
partnership was reconstituted by inducting new partners, and
also retiring the old partners on 13.12.1989, 13.07.1990 and
14.09.1990 under the registered partnership deed firm which
was reconstituted on 13.09.1990, the defendant No.5 became
the Managing Partner of the firm and one K.S. Uthappa and K.S.
Narayana, who were partners of the firm filed a suit challenging
the constitution of the firm and reconstitution in O.S.No.102/90
on the file of this Court against the defendant No.5 herein, who
was defendant No.7 in that suit and the defendant No.5 herein
took possession of the firm as Managing Partner under the
partnership agreement dated 14.09.1990, since then he is in
possession and enjoyment of Kumbara Hadlu Estate, which is
item No.1 of the suit schedule as Managing Partner and the said
suit was settled on 22.09.1993, thereafter the defendant No.5
and his other family members were in possession of Kumbara
Hadlu Estate and managing the same, as per partnership
agreement dated 25.03.1970, the lease period of the partnership
firm is for a period of 50 years which ends on 25.03.2020.
4. It is further contended that the defendant Nos.1 to 5
entered into conspiracy to deprive the right of the plaintiff, the
defendant Nos.1 to 4 in order to make unlawful gain for
themselves claims to have created a document called as sale
deed dated 25.08.2000. Hence, contend that the said document
is a sham document, not supported by valid consideration. In
the said sale deed, it is stated that they have sold the Kumbara
Hadlu Estate to the defendant No.5 showing the consideration of
Rs.3,50,000/-, though present market value of the said Kumbara
Hadlu Estate which consists of 50 acres of coffee land is not less
than Rs.1 Crore and the sale deed is obtained by fraud, in order
to avoid the payment of regular real stamp duty and in the
schedule which is described as 10 acres of jamma land in
Sy.No.1/8, measuring in all 50 acres. The very description of
the property indicates that the defendant Nos.1 to 5 have played
fraud in order to deprive the legal and legitimate right of the
plaintiff, in the sale deed, the defendant No.5 claims that he has
taken forcible possession of the property in the year 1972, but
the defendant No.5 took possession of the property as Managing
Partner on 30.07.1990, he has pleaded in the written statement
filed in O.S.No.102/90 and in the sale deed, he claimed that he
took forcible possession in the year 1972 and has perfected his
right by being in hostile and animus possession of the property
for more than 30 years, this averment is prima facie false and
made with a malicious intention to deprive the legal right of the
plaintiff in collusion with defendant Nos.1 to 4, the properties of
14.41 acres in Sy.No.82 of Heravanadu Village which is known
as Atti Hadlu was leased by late Mahadevaraja Wodeyar in
favour of A.D. Kaveramma, K. Thimmappa, Srinivasa Seth and
Seenappa, which was ended in the year 1972.
5. It is also the case of the plaintiff that on 16.09.1972,
late Mahadevaraja Wodeyar under registered mortgage deed
mortgaged the property for a period of 18 years i.e., till
31.12.1990 in favour of A.D. Kaverappa and Seenappa, the
defendant No.6 contacted the plaintiff along with one
Jayakumar, husband of defendant No.3 took the signature to a
stamped paper representing that all the properties in the name
of late Mahadevaraja Wodeyar will be surveyed and then, after
demarcation of the boundary, the partition will be effected, and
subsequently, the plaintiff came to know that the defendant No.6
by entering into some understanding with defendant Nos.1 to 4
is in possession and enjoyment of the land, an area of 14.41
acres in Sy.No.82 which is called as Atti Hadlu Estate and
enjoying the usufructs of the same. On enquiry with defendant
No.6 regarding the property of Atti Hadlu, he started giving
some evasive answer, she came to know about the fraud played
by defendant Nos.1 to 4 and 6. Hence, she got issued a legal
notice on 05.01.1999 withdrawing and canceling the Power of
Attorney, even now the defendant No.6 is in possession and
enjoyment of Atti Hadlu Estate measuring 14.41 acres in
Sy.No.82 of Heravanadu Vllage and out of 65 acres of land in
Sy.No.1/1 allotted to late Mahadevaraja Wodeyar, 50 acres was
bifurcated and given new Sy.No.1/8 which was pooled to
partnership firm, another 15 acres in Sy.No.1/1 is in possession
of the plaintiff and the defendant Nos.1 to 4 jointly, after death
of late Mahadevaraja Wodeyar, she has been requesting the
defendant Nos.1 to 4 to divide all the immovable and movable
properties belonging to her father by metes and bounds and allot
her 1/10th share, but they have been representing that her share
will be given to her after duration of the partnership firm by
name Kumbara Hadlu Estate is over. Believing their
representation, the plaintiff waited such period, but she came to
know that the defendant Nos.1 to 4 have clandestinely behind
her back sold the said Kumbara Hadlu Estate to the defendant
No.5 by showing meager consideration of Rs.3,50,000/- and
they are also dealing with defendant No.6 in respect of Atti
Hadlu property by taking some document styled as General
Power of Attorney. The defendant Nos.1 to 4 deprived plaintiff of
her right and played fraud on her, in order to make unlawful
gain. Hence, filed the suit seeking the relief of partition.
6. The defendant Nos.1 to 4 did not contest the matter
by filing the written statement. But, defendant No.5 filed the
written statement denying the averments made in the plaint. It
is contended that defendant No.5 has purchased the property
through the sale deed dated 25.08.2000 and the plaintiff has no
right to challenge the document and this document is a valid
document and binds in the said sale deed and it clearly
establishes that the plaintiff has no right, title and interest over
the properties and he has purchased 15 acres in Sy.No.1/1
under the sale deed dated 29.09.1995 and under the sale deed
dated 24.09.1970 Lingaraja Wodeyar had sold it to the
predecessors in title of defendant No.5. Hence, suit is barred by
law of limitation, the suit is not properly valued and the land is
not capable of identification and the survey numbers are
different. Hence, prayed to dismiss the suit.
7. The defendant No.6 filed the written statement
denying the contention of the plaintiff and entire averments
made in the plaint. However admitted the averments made in
paragraph No.15 of the plaint that after expiry of usufructs
mortgage in the year 1990, the mortgagees wanted to quit item
No.2 of the suit schedule properties, they wanted to dispose off
item No.2 of the properties and accordingly, they were looking
for the buyers. The plaintiff and the defendants had another 30
acres in Sy.No.1/1 which was not included in the partition dated
11.01.1954, the said 30 acres in Sy.No.1/1 in Heravanadu
Village was allotted to the branch of Mahadevaraja Wodeyar in
an oral partition entered into between Basvaraju, Lingaraja and
Mahadevaraja, wherein Mahadevaraja and Lingaraja took
remaining land in Sy.No.1/1 as their shares, the aforesaid 30
acres in Sy.No.1/1 was also put up for sale, this defendant
having come to know the intention of the plaintiff and the
defendant Nos.1 to 4, approached them through a common
friend and offered to buy the aforesaid item No.2 of the suit
schedule property and Sy.No.1/1 of 30 acres for Rs.2,91,200/-,
and the plaintiff and defendant Nos.1 to 4 agreed to sell the
same for Rs.91,200/-. Accordingly, gave a letter dated
20.06.1992 and received an amount of Rs.30,000/- and obtained
possession of item No.2 of the suit schedule properties and
Sy.No.1/1 of 30 acres and the entire balance consideration was
paid to the plaintiff and the defendant Nos.1 to 4 from time to
time and nothing more is due. The balance sale consideration
was handed over to defendant No.1 as agreed by the parties
themselves and in view of the prohibition of registration, the
plaintiff and the defendant Nos.1 to 4 executed Power of
Attorney on the same day in favour of this defendant, which was
based on consideration and between the period ending
usufructory mortgage, this defendant taking possession of the
aforesaid properties, one B.K. Krishna encroached the aforesaid
properties and the plaintiff and the defendant Nos.1 to 4
represented by this defendant as Power of Attorney filed a suit in
O.S.No.53/93 on the file of Munsiff Court at Madikeri and
O.S.No.5/93 on the file of this Court and O.S.No.5/93 was
decreed and in O.S.No.5/93, the plaint was rejected as not
maintainable.
8. It is also contended that subsequently, there seems
to be some misunderstanding between the plaintiff and the
defendant Nos.1 to 4 in respect of sharing of consideration thus
received by them from this defendant and the plaintiff
approached this defendant number of times to mediate, in fact,
the plaintiff and her husband visited Omkareshwara Temple and
on their way back, met this defendant and requested for a copy
of the documents executed by her and this defendant handed
over the same, he had spent lakhs of rupees on the development
of the said land. Hence, the suit is not maintainable, including
all the properties i.e., property in Sy.No.1/1 measuring 30 acres
in Heravanadu Village, there is no cause of action for the suit. It
is contended that the plaintiff has not included all the properties,
namely Sy.No.1/1 of 30 acres and plaintiff having received entire
sale consideration, cannot maintain a suit in respect of item
Nos.2 and 3 of the suit schedule properties and prayed the Court
to dismiss the same.
9. The Trial Court having considered the pleadings of
the parties, framed the following issues:
"1. Whether the plaintiff proves that, she is having
1/10th share in the suit schedule properties?
2. Whether the plaintiff proves that, the sale deed
dated 25.08.2000 alleged to have executed by
the defendant Nos.1 to 4 in favour of
defendant No.5 is sham document and not
supported by valid consideration and it does
not bind the right of the plaintiff?
3. Whether the plaintiff proves that the defendant
No.6 by entering into some understanding with
the defendant Nos.1 to 4 is in possession and
enjoyment of an area of 14.41 acres in
Sy.No.82 which is called as 'Attihadlu' and
enjoyed the usufructs of the same?
4. Whether the plaintiff is entitled for the mesne
profits as prayed for? If so, what is the rate?
5. Whether the suit is barred by Law of
Limitation?
6. Whether the defendant No.5 proves that the
suit land is not capable of identification, and
survey numbers are different?
7. Whether the suit is valued in respect of relief
No.3 of the plaint is not correct?
8. Whether the defendant No.6 proves the
averments made in paragraph No-16 of the
written statement?
9. Whether the suit is not maintainable for non-
inclusion of Sy.No.1/1 of 30 acres in
Heravanadu Village?
10. Whether the plaintiff is entitled for the relief's
as prayed for?
11. What order or decree?"
10. The plaintiff examined herself as P.W.1, in order to
prove her case and got marked the documents as Exs.P1 to P11.
The defendant No.5 examined him as D.W.1 and defendant No.6
examined him as D.W.2 and got marked the documents as
Exs.D1 to D11.
11. The Trial Court having considered the material on
record, answered issue No.1 in the 'affirmative', in coming to the
conclusion that plaintiff is entitled for 1/4th share in suit schedule
properties as against the claim of 1/10th share and answered
issue No.2 as partly 'affirmative', in coming to the conclusion that
sale deed is not binding on the plaintiff. The Trial Court answered
issue Nos.3, 5, 6 and 7 as 'negative', in coming to the conclusion
that the plaintiff fails to prove the allegation that defendant No.6
with some understanding with defendant Nos.1 to 4 is in
possession of the said property and the contention that suit is
barred by limitation is also answered as 'negative' and also
contention of defendant No.5 that plaintiff is not entitled is
answered as 'negative'. However, answered issue No.8 'partly in
the affirmative' that defendant No.6 proves the averments made
in paragraph No.16 of the written statement and the Trial Court
granted the relief in favour of the plaintiff that plaintiff is entitled
for the relief of partition. Being aggrieved by the judgment and
decree of the Trial Court, present appeal is filed before this Court.
12. The main contention of learned counsel for the
appellants before this Court is that the judgment and decree
passed by the Trial Court is erroneous and this appeal is filed only
by defendant No.5. The main contention of the counsel is that
the sale deed which is executed in favour of defendant No.5 is
only called in question i.e., Ex.P7 to the extent of 10 acres.
Learned counsel would vehemently contend that the sale deed
executed in favour of wife and children of defendant No.5 are not
called in question in respect of 40 acres of land. The counsel
would vehemently contend that the Trial Court committed an
error in decreeing the suit. It is not in dispute that father
acquired the property in the partition dated 11.01.1954 along
with brothers and his mother and in the said partition, seven
items of the properties are allotted in favour of father. But, suit
is filed only in respect of two items of the properties. It is
contended that defendant No.6 is in possession of item Nos.2 and
3 of the suit schedule properties and as per the oral partition
among the members of the family, 30 acres are also allotted and
the same is not included in the suit. It is also contended that
defendant Nos.1 to 4 have been placed exparte. Learned counsel
also would vehemently contend that plaintiff and defendant Nos.1
to 4 again sold some of the properties and remaining properties
are still continued in the name of father of the plaintiff and
defendant Nos.1 to 4 and evidence is very clear regarding
acquisition of other properties by the father.
13. Learned counsel would vehemently contend that
when other properties are not included, Order 2 Rule 2 CPC
attracts and contend that partial partition is not maintainable.
The defendant No.6 took the specific defence of non-inclusion of
family property while filing the suit and the same is also admitted
in the cross-examination. Though, item No.3 of the property is
included in the oral partition, no details with regard to boundaries
are given and the Trial Court also not given any reason for non-
inclusion of the family properties, though issue No.9 was framed.
It is contended that the plaintiff and defendant Nos.1 to 4 sold
the property during the pendency of this appeal by executing the
sale deed. It is contended that item No.3 of the suit schedule
properties does not belong to the family of the plaintiff and the
same belongs to uncle and he has already sold 15 acres in the
year 1970. Learned counsel also would vehemently contend that
the appellants have filed an application to permit them to
produce additional evidence and counsel would vehemently
contend that two applications are filed under Order 41 Rule 27
CPC and so also, application is filed for amendment of written
statement of defendant No.5. The documents which are available
along with the application filed under Order 41 Rule 27 CPC also
to be considered and those properties are not included while filing
the suit and suit is filed including only two items of the
properties. Learned counsel also brought to notice of this Court
the pendency of other applications and seeks permission of this
Court to amend the written statement as well as to receive the
additional documents and prays this Court to set aside the
judgment and decree passed by the Trial Court.
14. Learned counsel for the appellants, in support of his
argument, relied upon the judgment of the Apex Court in PANNA
LAL VS. STATE OF BOMBAY reported in AIR 1963 SC 1516,
wherein scope of Order 41 Rule 33 and Order 41 Rule 22 CPC is
discussed and the Apex Court held that Appellate Court can give
relief to a respondent as against other respondent and referring
this judgment, counsel would contend that it empowers the
appellate Court not only to give or refuse relief to the appellant
by allowing or dismissing the appeal, but also to give such other
relief to any of the respondents as "the case may require". If
there is no impediment in law, the High Court in appeal could
therefore, though allowing the appeal of the defendant-appellant
by dismissing the plaintiff's suits against it, give the plaintiff
respondent a decree against any or all the other defendants, who
were parties to the appeal as respondents.
15. The counsel also relied upon the judgment passed by
this Court in D. LINGEGOWDA VS. SMT. GOWRAMMA AND
OTHERS in R.S.A.NO.1971/2018 delivered on 22.06.2024
and brought to notice of this Court paragraph No.16 of the
judgment, wherein the discussion was made with regard to
Section 58 of the Indian Evidence Act, 1872 and also paragraph
No.21, wherein discussion was made with regard to admission on
the part of witnesses and also an observation is made that it is a
collusive suit and also not included other property which belongs
to the family of the plaintiff, defendant Nos.1 and 2. Learned
counsel referring this judgment would contend that all the family
properties are not included, though filed collusive suit which is
observed in paragraph No.26. In paragraph No.27, an
observation is made that there are triable issues in the matter
and in paragraph No.29 comes to the conclusion that suit is filed
only with an intention to defeat the right of the purchaser.
16. The counsel also relied upon the judgment of this
Court in RANGAHANUMAIAH NOW DEAD BY LRS VS.
DEVARAJU AND OTHERS in R.S.A.NO.209 OF 2007 delivered
on 02.06.2023 and brought to notice of this Court detailed
discussion made in paragraph No.28 of the judgment, wherein it
is observed that when the plaintiffs have challenged the very sale
contending that their father was not having absolute right, but
filed the suit only for the relief of partition and not included all
the family properties. This Court also discussed with regard to
attempt made by the appellants to produce the documents to
prove that the plaintiff's family was having other property by
invoking Order 41 Rule 27 CPC. This Court also in paragraph No.
No.29 made an observation that Court has to take note of the
conduct while filing of the suit only in respect of the property
which was sold by the father, a suit is filed for the relief of
partition.
17. The counsel also relied upon the judgment of the
Apex Court in KENCHEGOWDA (SINCE DECEASED) BY LEGAL
REPRESENTATIVES VS. SIDDEGOWDA ALIAS MOTEGOWDA
reported in (1994) 4 SCC 294, wherein the Apex Court has
dealt with regard to suit filed for partial partition, when all the
joint family properties not made the subject-matter of the suit
nor the co-sharers impleaded, the suit is not maintainable.
18. The counsel also relied upon the judgment of this
Court in G.M.MAHENDRA VS. G.M. MOHAN reported in
LAWS(KAR)-2010-9-11, wherein this Court made an
observation that in the suit filed to include the whole claim,
Order 2 Rule 2 CPC is pressed into service and entire suit
schedule properties were not included and the schedule
properties were not subject matter of oral partition and suit filed
by the plaintiff was not maintainable, as the suit for partial
partition cannot be maintained without seeking leave of the
Court as contemplated under Order Rule 2 CPC.
19. The counsel also relied upon the judgment of this
Court in NAGARATHNAMMA B.S. @ SHOBA VS. SRI
THUKARAM AND ANOTHER in R.S.A.NO.1614 OF 2018
delivered on 16.04.2021, wherein also an observation is made
with regard to, it is needles to state that such feasibility shall be
examined only after conducting an enquiry as prescribed under
law to ascertain the value of the properties involved based on
criteria such as the nature of soil and nature of easement
attached to these properties.
20. The counsel also relied upon the judgment of the
Apex Court in SHALIMAR CHEMICAL WORKS LIMITED VS.
SURENDRA OIL AND DAL MILLS (REFINERIES) AND
OTHERS reported in (2010) 8 SCC 423, wherein the Apex
Court has discussed with regard to admissibility of evidence and
stage at which to be decided and so also the production of
additional evidence in appellate Court, permissibility when there
is "substantial cause" and appellate Court was right in allowing
production of original certificates.
21. The counsel also relied upon the judgment of this
Court in SRI RAGHAVENDRA SWAMY MUTT VS. SRI
UTTARADI MUTT reported in LAWS(KAR)-2017-11-116,
wherein the Apex Court discussed with regard to Order 41 Rule
27 CPC regarding production of additional evidence in Appellate
Court. The counsel referring this judgment would contend that,
when germane issues are involved between the parties to be
decided in the appeal, to invoke Order 41 Rule 27 CPC.
22. Per contra, learned Senior counsel for respondent
No.1 in his argument would vehemently contend that it is not in
dispute that suit schedule properties belong to the family of Raja
and there was a partition in the year 1954 and Mahadevaraja
Wodeyar is the propositus of the family. It is also the contention
that there was a partnership deed of the year 1970 i.e.,
25.03.1970 and 50 acres of land was pooled to partnership. It is
not in dispute that plaintiff is the daughter of Mahadevaraja
Wodeyar and though it is denied, but the same has not been
proved. It is also the contention that defendant Nos.1 to 4 have
not filed any written statement denying the fact that plaintiff is
not the daughter of Mahadevaraja Wodeyar. Hence, contention
of defendant No.5 cannot be accepted. He would also contend
that though the appellants denied the relationship of plaintiff,
nothing is placed on record. It is not in dispute that there was a
sale deed and plaintiff was not party to the said sale deed. It is
contended that the appellants have not taken any defence with
regard to non-inclusion of properties which are sold.
23. It is contended that non-inclusion of other properties
is only for the reason that some of the properties are given to
Mutt and there is a bar in registering the property in favour of
any person. Hence, the same was not included. Hence, the
contention that other family properties are not included cannot
be accepted. It is contended that now the question of non-
joinder of necessary parties does not arise, since the children are
made as parties, including the wife. It is also contended that
though earlier suit was filed only for two items of the properties,
subsequently, in view of defence taken by defendant No.6, item
No.3 was also added. He would further contend that in
paragraph No.12 of the judgment of the Trial Court regarding
relationship between the parties is concerned, taken note of the
fact that though defendant No.5 disputes the said fact,
defendant No.6 admits the same.
24. Learned senior counsel for respondent No.1, in
support of his argument, he relied upon the judgment of the
Apex Court in S. KUMAR VS. THE INSTITUTE OF
CONSTITUTIONAL AND PARLIAMENTARY STUDIES AND
OTHERS reported in AIR 1984 SC 59, wherein the Apex Court
has discussed with regard to leave to amend plaint seeking
inclusion of new relief cannot be granted invoking Order 6 Rule
17 CPC, where the original relief's claimed in the suit consisted
of a decree of declaration that the proceedings taken against the
appellant, an employee of a society registered under the
Societies Registration Act, up to the framing of the issues were
invalid and a decree for perpetual injunction restraining the
respondent Society from dismissing the appellant but, in the
meantime the appellant was dismissed by the society and he
was aware of the order of dismissal and at no stage up to the
dismissal of his second appeal by High Court did the appellant
attempt to include a relief in his plaint against the order of
dismissal. The learned senior counsel referring this judgment
would vehemently contend that the Apex Court held that in an
appeal for special leave, appellant cannot be permitted to amend
the plaint seeking to include the prayer or relief. He would also
contend that at a belated stage Order 6 Rule 17 CPC for
amendment of pleading and no specific reasons are assigned. He
would further contend that with regard to additional documents
also, nothing is pleaded by the defendants.
25. In the statement of objections filed by respondent
No.1 filed under Order XLI Rule 27 CPC, to place additional
documents is concerned, it is contended that the respondent and
her family members belong to Lingayath community and they
have immense faith on Arameri Kalacheri Mutt, Virajpet Taluk,
Virajpet of which Matadhipathi was Sri Sri Sri Shantha Malla
Swamy and in the year 1971, this respondent's father late
Mahadeva Raja Wodeyar donated the above land to Sri Sri Sri
Shantha Malla Swamy for the said Mutt, thereafter the
respondent and her family members have not claimed the said
property and Sri Sri Sri Shantha Malla Swamy during his lifetime
used to come to our house to bless all of us and was cultivating
the said property with cardamom and paddy in the wet land and
now the said property became deserted with full of forest and
due to age factor Sri Sri Sri Shantha Malla Swamy did not come
and cultivate the above property and the said property is full of
forest now.
26. It is also stated that Sri Sri Sri Shantha Malla Swamy
died in the year 1997, few years back the present Matadhipathi
of Arameri Kalancheri Mutt and successor of Sri Sri Sri Shantha
Malla Swamy, Sri Sri Sri Shantha Mallikarjuna Swamy visited the
above property by constructing a Mutt and a old age home,
however for want of funds, the said project is delayed. The
above property does not belong to our family and it has been
donated to Sri Sri Sri Shantha Malla Swamiji, respondent No.1
has not included the above properties in the plaint because the
said property does not belong to her parental family after
donating the same to Swamiji. The respondent No.1 is not aware
of any details of any documentation since she was married at
that time and she was living in Bangalore. The fact that above
land has been donated to Sri Sri Sri Shantha Malla Swamiji is
known to all the family members and the family members have
no claim on the said property. The appellants' father Yogendra
Nath is also aware of the said fact. Therefore, he did not raise
the said issue before the Trial Court. The documents now sought
to be produced without proper pleadings cannot be produced and
when this respondent is denying the fact that the above property
is not available for partition as it is severed from the family long
ago and is owned by some third persons not belonging to the
family and no one in the family can make a claim in the said
property.
27. It is also stated that respondent No.1 also enquired
with the Swamiji and respondent No.1 is informed that as the
property was Jamma in tenure and he has informed that since in
those days, registration of document was not possible, Sri Sri Sri
Shantha Malla Swamiji was in custody of a unregistered gift deed
and same is now misplaced in the Mutt and she is now ready to
file affidavit of Sri Sri Sri Shantha Mallikarjuna Swamy. Now, the
respondent No.1 has also filed a memo along with the affidavit of
said Sri Sri Sri Shantha Mallikarjuna Swamiji, Successor of
Sri Sri Sri Shantha Malla Swamji, who has submitted that he is in
possession of the above property on behalf of the Mutt and the
ownership of the above property is inherited by him as successor
to Sri Sri Sri Shantha Malla Swamiji. It is also stated that the
revenue records are not transferred in the name of the Mutt
because the above property are Jamma Tenure. It is further
contended that those days, registration was not possible, the
unregistered gift deed in favour of his guru is misplaced by him
in the Mutt. Learned counsel referring the affidavit of the
Swamiji would contend that admittedly, since those properties
are not available, question of dismissing the suit on the ground
of partial partition does not arise.
28. In reply to this argument of learned Senior counsel
for respondent No.1, learned counsel for the appellants would
vehemently contend that, though the property was donated, all
the documents stands in the name of the father of the plaintiff
and contend that in respect of item No.2 of the properties,
portion of the property was sold during the pendency of the
appeal. It is also contended that suit filed by the plaintiff is
nothing but fraud against defendant No.5 and also the Court. In
the cross-examination, the plaintiff has admitted regarding other
properties are concerned and now, fresh ground is urged before
this Court by filing statement of objections. Learned counsel
also would vehemently contend that defendant Nos.1 to 4 have
joined hands with the plaintiff, in order to knock off the
properties.
29. In reply to this argument of the learned counsel for
the appellants, learned Senior counsel for respondent No.1
would contend that, as on the date of suit, there is non-inclusion
of property to the extent of 15 acres and item No.3 is purchased
by defendant No.5 from his vendor and now seek for
amendment and also filed applications-I.A.Nos.1 and 2 and
detailed statement of objection is filed and now cannot amend
the written statement. It is also contended that the amendment
which he now intends to make was in the knowledge of
defendant No.5 at the time of filing the written statement and
now his legal representatives cannot contend that amendment
has to be permitted.
30. Having heard learned counsel for the appellants and
learned Senior counsel for respondent No.1 and learned counsel
for respondent No.6 and also the principles laid down in the
judgments referred supra, the points that would arise for
consideration of this Court are:
(i) Whether the Trial Court committed an error in
granting the relief of partition in favour of the
plaintiff in respect of the suit schedule
properties and whether it requires
interference?
(ii) Whether the legal representatives of defendant
No.5 i.e., the appellants herein have made out
a ground to allow the application for
amendment of written statement as sought in
the application filed under Order VI Rule 17
read with Section 151 CPC?
(iii) Whether the appellants have made out a
ground to allow the applications-
I.A.Nos.2/2024 and 3/2024 filed under Order
41 Rule 27 read with Section 151 CPC to
receive the documents on record as additional
documents?
(iv) What order?
Point No.(ii)
31. The legal representatives of appellant have filed an
application under Order VI Rule 17 read with Section 151 CPC in
seeking permission to amend the pleadings in written statement
of deceased respondent No.5 by incorporating some of the
paragraphs i.e., paragraph Nos.10(a) to 10(h) after paragraph
No.10 of the written statement with regard to purchase of the
property by the family to the extent 50 acres in the name of
wife, son and defendant No.5 respectively measuring 20 acres
each in the name of wife and son and 10 acres in the name of
defendant No.5 and based on the sale deeds, revenue entries
are also mutated. The plaintiff made only the defendant No.5 as
party to the suit and suit is hopelessly barred by limitation. It is
also contended in the written statement that in the oral partition,
item No.3 of the suit schedule properties had fallen to the share
of Lingaraja Wodeyar, based on the oral partition, revenue
entries are mutated in the name of Lingaraja Wodeyar, during
lifetime of Lingaraja Wodeyar, he had sold portion of item No.3
of the suit schedule properties jointly in favour of one C.V.
Sadashiva Rao, Narayana Rao and Nanjundeshwawra Rao, after
the death of Nanjundeshwara Rao, his wife and children and
above 2 persons jointly sold the property in favour of
Yogendranath under registered sale deed dated 29.09.1995, the
plaintiff herein suppressing all these facts with an intention to
knock off item Nos.1 and 2 of the schedule properties, suit was
filed and played fraud on the Court.
32. It is also contended that earlier sale deed executed
by Lingaraja Wodeyar on 24.09.1971 was not challenged and
also contend that plaintiff and respondent Nos.1 to 4 jointly sold
portion of item No.2 of the suit schedule properties in favour of
Smt. Aruna Bhandari vide sale deed dated 14.01.2019 during
the pendency of this appeal. It is contended that item No.3 of
the suit schedule properties was nowhere concerned to the
family of plaintiff, under the oral partition, item No.3 of the suit
schedule properties fallen to the share of Lingaraja Wodeyar.
Hence, the defendant No.5 may be permitted to plead the same.
It is contended that after death of the husband of the deponent,
who filed the affidavit, she contend that on the death of her
husband, her counsel telephonically informed about the
pendency of the above appeal and thereafter contacted the
counsel. Therefore, proposed amendment would not either alter
or change the nature of relief originally framed and proposed
amendments also would not introduce any new cause of action
and only the proposed amendment is in the nature of
clarifications. Hence, proposed amendment is necessary for the
adjudication of the case.
33. This application is resisted by filing objections by
learned counsel for respondent No.1. In the statement of
objection, it is contended that the legal representatives of
deceased defendant No.5 were having knowledge about the
same and it would have been pleaded by the deceased appellant
himself in the written statement. It is contended that suit was of
the year 2001 and after lapse of 23 years, the legal
representatives of deceased appellant have filed this application
only to protract the case and this amendment is not necessary
for proper adjudication and only with an intention to protract the
proceedings, an application is filed.
34. Having considered the grounds urged in the
application and also the objections, during the course of
arguments also, learned counsel for the respondent/plaintiff not
disputes the fact that there were sale deeds in favour of the
family to the extent of 50 acres i.e., in favour of wife, son and
defendant No.5. The counsel would contend that remaining
properties are within the knowledge of family and the plaintiff is
not party to the said sale deed and plaintiff is entitled for a share
in the property, since 15 acres of land in item No.1 of the suit
schedule properties is remaining and total extent is 65 acres and
even if 50 acres of land is sold, when 15 acres of land is
remaining, the same can be allotted in favour of the plaintiff and
no dispute with regard to the fact that 15 acres of land is
remaining.
35. It is also important to note that there is a force in
the contention of learned counsel for respondent No.1 that
amendment is sought after lapse of 23 years and defendant No.5
was having knowledge about the same. It is important to note
that, in the written statement, defendant No.5 has contended
that he has purchased 15 acres in Sy.No.1/1 under the sale deed
dated 29.09.1995 and under the sale deed dated 24.09.1970,
the said Lingaraja Wodeyar has sold the property to the
predecessors in title of defendant No.5 and the claim in
paragraph No.12 is false and suit is also barred by limitation. No
doubt, the Trial Court framed issues based on the pleadings, but
Trial Court missed out very pleading of the defendant No.5 in
respect of paragraph No.10 is concerned, when he has
specifically pleaded that he had purchased 15 acres of land in
Sy.No.1/1 and no issue is framed with regard to purchase of 15
acres under the sale deed dated 29.09.1995, except framing the
issue that defendant No.5 proves that suit land is not capable of
identification and survey numbers are different.
36. It has to be noted that plaint was amended after
framing of issue No.9, since defendant No.6 took the defence
that suit is not maintainable for non-inclusion of Sy.No.1/1 of 30
acres in Heravanadu Village and there was a pleading that in
Sy.No.1/1, 30 acres was allotted in favour of Lingaraja Wodeyar
and had sold the same to the predecessor in title of defendant
No.5 in the year 1970 and in turn, he had purchased the
property on 29.09.1995. The amendment sought is in respect of
purchasing of the property and purchase made by the family of
defendant No.5, in total to the extent of 50 acres. Hence, there
is no need to seek for an amendment and the Trial Court only
missed out the said fact without framing any issue and now the
appellants also contend that said property was allotted in favour
of Lingaraja Wodeyar and the family of the plaintiff is not
concerned with the same and whether the same is concerned to
the family of the plaintiff in respect of item No.3 is concerned, it
requires definite finding and no such finding is given by the Trial
Court and having considered the factual aspects, there is need to
amend the written statement to clarify the same, since already
there is an averment in paragraph No.5 of the written statement
filed by original defendant No.5.
37. It is the contention of the respondent/plaintiff that
the said property belongs to the family and hence, included the
same as item No.3. Having perused the original plaint available
before the Court, plaint was amended and item No.3 is included
i.e., 30 acres of land in Sy.No.1/1 of Heravanadu Village,
Madikeri Taluk, but description of the boundary was not given.
When the property was included, the respondent/plaintiff ought
to have given boundary description and the same was not given
and unless the boundary description is given and when there
was a sale deed in respect of the property which the defendant
No.5 claims, matter requires further adjudication and in view of
the fact that already there was a pleading in paragraph No.10
and now the appellants also claim that the same was purchased
which belongs to Lingaraja Wodeyar and even though there was
a delay of 23 years in filing the application and for the limited
purpose, amendment is required to be allowed in view of the fact
that description of the property in respect of item No.3 of the
suit schedule properties was not given, since the legal
representatives of defendant No.5 claim the said property.
Hence, the application filed under Order VI Rule 17 read with
Section 151 CPC has to be allowed on cost. Accordingly, I
answer Point No.(ii) as 'affirmative'.
Point No.(iii)
38. The appellants have also filed applications-
I.A.Nos.2/2024 and 3/2024 under Order 41 Rule 27 read with
Section 151 CPC praying this Court to permit the legal
representatives of original appellant to produce the additional
evidence by way of documents which are necessary for
adjudication of the dispute. In support of the application-
I.A.No.2/2024, an affidavit is sworn to and list of documents is
also produced i.e., sale deed dated 25.08.2000 executed in
favour of Smt. C.Y. Kamala, sale deed dated 25.08.2000
executed in favour of Sri C.Y. Sachin and these two documents
were not produced before the Trial Court and the
respondent/plaintiff also not disputes the existence of these two
sale deeds. However, it is the contention of the appellants that
there exists one more sale deed dated 29.09.1995 in favour
Sri C.Y. Yogendranath to the extent of 15 acres which he had
purchased from his vendors and in turn, his vendors had
purchased the said property from Lingaraja Wodeyar and specific
pleading is made that the said property belongs to the family of
the plaintiff and Lingaraja Wodeyar. The appellants have also
produced copy of judgment passed in O.S.No.2/2018, copy of
M.R.No.11/2004-05, copy of Jama Bandi in respect of land
bearing Sy.No.1/8, copy of death certificate of Sri C.Y. Sachin,
who passed away subsequently.
39. Another application-I.A.No.3/2024 is filed seeking
permission of this Court to permit the legal representatives of
appellant to produce the additional evidence by way of
documents under Order 41 Rule 27 read with Section 151 CPC,
wherein also an affidavit is filed in support of the application
producing copy of the registered partition deed dated
11.01.1954 which is the original document necessary for
adjudication of the dispute. The legal representatives of
appellant have also produced copy of RTC from 2000-2001 to
2004-2005 with respect to land bearing Sy.No.79/1 measuring 1
acre 53 cents, RTC from 2000-2001 to 2004-2005 with respect
to land bearing Sy.No.79/2 measuring 12 acres 41 cents and
also copy of sale deed dated 14.01.2019 with respect to land
bearing Sy.No.82/1 of Heravanadu Village and this document
came into existence in the year 2019 during the pendency of
appeal and prayed the Court to produce these documents which
are necessary to adjudicate the dispute.
40. Having perused the documents which are now
sought to be produced as additional evidence by way of
documents, there is no dispute with regard to purchasing of
property in the name of wife and son vide sale deeds dated
25.08.2000 and respondent No.1 also not disputes the same and
the respondent No.1 only claims share in respect of remaining
property. Hence, these two sale deeds are not necessary.
However, the sale deed dated 29.09.1995 executed in favour of
Sri C.Y. Yogendranath, since there was a pleading in the written
statement itself in paragraph No.10 that the same was
purchased from his vendors, who in turn purchased the same
from Lingaraja Wodeyar and appellants also claim that this
document is in respect of item No.3 of the property.
41. I have already pointed out that no description is
given in respect of item No.3 of the suit schedule properties to
the extent of 30 acres and appellants claim that the said
property was purchased from Lingaraja Wodeyar and the same
not belongs to the family of the plaintiff. The other documents
are judgment on O.S.No.2/2018, copy of M.R.No.11/2004-2005,
Jama Bandi and death certificate of Sri C.Y. Sachin and the same
can be considered as additional evidence, in view of the fact that
he is one of the purchaser. So also in respect of other additional
evidence and the documents which have been produced i.e., the
original partition deed dated 11.01.1954, the same is required to
adjudicate the issue, even though there is no dispute. The other
documents which are sought to be produced i.e., copy of RTCs in
respect of Sy.No.79/1 and Sy.No.79/2 is not the subject matter
of the suit. Hence, those documents cannot be permitted to be
produced before the Trial Court as additional evidence, since
item No.1 of the suit schedule properties is in respect of 65 acres
of land in Sy.No.1/1, item No.2 is in respect of Sy.No.82 and
item No.3 is in respect of 30 acres of land in Sy.No.1/1 and
when those properties are not included in the suit, the question
of producing the said documents as additional evidence does not
arise. However, sale deed dated 14.01.2019 came into existence
during the pendency of this appeal and the same be placed
before the Trial Court i.e., in respect of item No.2 of the suit
schedule properties.
42. Having taken note of the documents which have
been placed before the Court and also germane issues involved
between the parties in respect of item No.3 of the suit schedule
properties is concerned, since the appellant claims that already
15 acres of land was purchased from Lingaraja Wodeyar by his
vendor and in turn, he purchased the same from his vendor and
also claim that item No.3 is in respect of the property purchased
by Lingaraja Wodeyar and plaintiff's family was not having 30
acres of land, in order to adjudicate the issue, these documents
are necessary. Hence, I.A.No.2/2024 is to be allowed in part
permitting to produce the documents at Sl.Nos.3 to 6 of the list
of documents which could be placed before the Trial Court. In
respect of I.A.No.3/2024 which is only in respect of item Nos.2
and 5, the said application is to be allowed in part and these
documents are necessary for consideration of the matter before
the Trial Court. Since, these applications are also filed belatedly,
the same also can be considered on payment of cost.
Accordingly, I answer point No.(iii) as 'partly affirmative'.
Point No.(i)
43. The Trial Court comes to the conclusion that plaintiff
is not party to the sale deed of the year 25.08.2000 executed in
favour of defendant No.5 and the same in respect of 10 acres. It
is also the contention of the appellants that other two sale deeds
are not included, while seeking the relief of partition of the sale
deed executed in favour of wife and son of defendant No.5 and
now the defendant No.5 is no more and son is also no more and
legal representatives are before the Court. The
respondent/plaintiff also not seriously disputes three sale deeds
and fairly submits that, even though total 50 acres of land is sold
15 acres of land is available and in other items of the properties
also, there are remaining properties. It is also brought to notice
of this Court that plaintiff and defendant Nos.1 to 4 have jointly
executed sale deed in favour of Smt. Aruna Bhandari on
14.01.2019 in respect of item No.2 of the suit schedule
properties. It is also made clear that, when the appellant had
purchased the property from defendant Nos.1 to 4, plaintiff was
not party to the sale and though defendant No.5 disputes that
she is not the daughter, defendant No.6 admits that she is
daughter and Trial Court also given finding and the same is not
challenged. But, the only contention before this Court by the
legal representatives of deceased defendant No.5 is that the
defendant No.5 had already purchased the property in the year
1995 and claims that item No.3 of the property belongs to
defendant No.5 and this Court also observed that no boundary
description was given, though item No.3 is included and the Trial
Court granted share in favour of the plaintiff in respect of all the
items of the properties and for the limited purpose, the matter
requires to be remanded and there is no error on the part of the
Trial Court in granting share in favour of the plaintiff.
44. However, the only short question involved is whether
item No.3 of the property belongs to defendant No.5, since he
claims that the said property originally belongs to Lingaraja
Wodeyar and Lingaraja Wodeyar sold the same in favour of his
vendor and vendors have sold the property to him and the same
is item No.3 of the property or different property has to be
adjudicated by the Trial Court. In the absence of such
adjudication, this Court also cannot take any decision in the
absence of any evidence whether the same is the property
purchased by defendant No.5 belongs to his vendor or property
belongs to family of plaintiff. Hence, the matter requires to be
remanded to the Trial Court only for the limited purpose with
regard to the claim of the appellant is concerned that he had
purchased the property in the year 1995 and claim of the
appellant is in respect of item No.3 is concerned. If the Trial
Court gives the finding that portion of item No.3 was sold in
favour of defendant No.5 i.e., the original appellant in this
appeal, matter requires reconsideration. Hence, I answer Point
No.(i) as 'negative', in coming to the conclusion that the Trial
Court has not committed any error in holding that the plaintiff is
entitled for share in the property. But, in view of the
observation of this Court, the matter requires reconsideration.
Point No.(iv)
45. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the
Trial Court and the confirmation made by the
First Appellate Court are set aside, in view of
the additional amendment being sought and
also production of additional documents under
Order 41 Rule 27 read with Section 151 CPC
for the limited purpose to adjudicate the issue
with regard to item No.3 of the suit schedule
properties whether the claim made by the
appellant that he had purchased portion of
item No.3 under the sale deed dated
29.09.1995 which is produced as additional
evidence before this Court pertains to item
No.3.
(iii) The Trial Court is directed to frame an issue to
that effect and adjudicate the same only on the
said issue whether it belongs to the appellant
or it belongs to the family of the plaintiff.
(iv) The application filed by the appellants under
Order VI Rule 17 read with Section 151 CPC
and the applications under Order 41 Rule 27
read with Section 151 CPC i.e., I.A.Nos.2/2024
and 3/2024 are allowed on cost of Rs.25,000/-
each, in total Rs.75,000/- which is payable at
the Trial Court within two weeks from today.
Out of the said amount, Rs.60,000/- is payable
to the plaintiff and remaining Rs.15,000/- shall
vest with the State.
(v) The Trial Court is directed to dispose of the
matter within a time bound period of four
months, since this is the suit of the year 2001
and almost two decades have been elapsed.
(vi) The learned counsels and their respective
parties are directed to appear before the Trial
Court on 17.03.2025 without expecting any
notice and assist the Trial Court in disposal of
the case in a time bound period of four months
from 17.03.2025.
(vii) The appellants are directed to file amended
written statement on the very date of
appearance and Trial Court shall frame an
additional issue and parties are given liberty to
adduce further evidence, if any, in view of the
observations made in the judgment. Even the
plaintiff is given liberty to give description of
the property in respect of item No.3 by filing
necessary application for amendment of
schedule of the plaint for proper adjudication
immediately. If such application is filed, the
Trial Court is directed to consider the same
leniently and the appellants shall not object for
the same, since the said amendment is
necessary for the purpose of identification of
the property.
(viii) The Registry is directed to transmit the
records, forthwith to enable the Trial Court to
take up the matter on 17.03.2025.
Sd/-
(H.P. SANDESH)
JUDGE
ST
