(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
No.263/2014 by the learned IV Addl. Senior Civil Judge and
2. For convenience, the parties are referred to, as per
3. The appellant was defendant No.2, respondent
defendant No.1. Brief facts leading rise to the filing of this
After the demise of Radhabai, Gopal married Lakshmibai. The
and the defendants as his legal heirs. On the demise of Gopal,
property. Lakshmibai died on 31.08.2011, leaving behind the
plaintiffs and the defendants as her legal heirs. The plaintiffs
Family. It is contended that, the suit schedule property is the
defendants. No partition is effected between the plaintiffs and
defendants. The plaintiffs requested the defendants to effect
the partition, but the defendants refused. Hence, a cause of
separate possession. Accordingly, prays to decree the suit of
the plaintiffs.
4. The defendant No.1 filed a written statement
paragraph No.1 of the plaint is vague. It is contended that, the
one Vitthal Son of Krishna Pawar. During his life time, he had
deed dated 13.06.1950. It is also admitted that, the Vitthal had
a wife and a son by the name of Gopal. After the death of
propositus, Gopal inherited the suit schedule property. Gopal
and Radhabai. After the demise of Radhabai, Gopal married
Lakshmibai through Gopal. It is stated that Gopal died on
09.02.1997. It is contended that the defendant No.1 sold his
unregistered sale deed in favour of the defendant No.2. The
16.01.1997. Hence, the suit filed by the plaintiffs is not
maintainable. There is no cause of action to file a suit by the
plaintiffs. The cause of action shown in the plaint is false and
imaginary. Hence, on these grounds, prays to dismiss the suit.
5. The trial Court, based on the aforesaid pleadings of
4. What order or decree?"
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6. The plaintiffs to prove their case, plaintiff No.1
examined himself as PW.1 and marked seven documents as
Ex.P1 to Ex.P7. Defendant No.2 was examined as DW1,
examined one witness as DW2 and marked twenty nine
documents as Ex.D1 to Ex.D.29.
7. The trial Court, after recording the evidence,
hearing on both the sides and the assessment of oral and
documentary evidence, answered issue Nos.1 and 3 in the
affirmative, issue No.2 in the negative and issue No.4 as per
the final order. The suit of the plaintiffs was decreed with cost.
It is declared that, the plaintiffs and defendants are entitled to
their legitimate shares in the suit property. The defendant
No.2, aggrieved by the judgment and preliminary decree
passed in OS No.263/2014 dated 15.02.2019 by the IV Addl.
Senior Civil Judge and JMFC., Belagavi filed this Regular First
Appeal.
8. Heard the learned counsel appearing for defendant
No.2 and the learned counsel appearing for the plaintiffs.
9. Learned counsel for defendant No.2 submits that,
there was a partition effected between the plaintiffs and the
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defendants in 1996 during the life time of the Gopal i.e. the
father of the plaintiffs and defendants, and the same was
reduced into writing in 1997 by way of a memorandum of
partition marked as Ex.D.15. She submits that, based on
Ex.D15, name of the defendant No.2 was entered in the
revenue records. She submits that, the parties have acted upon
Ex.D15. The said aspect was not properly considered by the
trial Court. She also submits that, PW.1, during the course of
cross examination admitted that, the plaintiffs and defendants
are residing separately, and hence, defendant No.2 has proved
that there was a prior partition between the plaintiffs and
defendants. The trial Court has committed an error in decreeing
the suit of the plaintiffs. Hence, the impugned judgment and
preliminary decree passed by the trial Court is perverse,
arbitrary and erroneous. Hence, on these grounds, she prays to
allow the appeal. She further submits that the trial Court has
committed an error in not properly considering Ex.D15 on the
ground that, it is an unregistered document. Hence, prays to
allow the appeal.
10. Per contra, learned counsel for the plaintiffs submits
that, admittedly, the suit schedule property was purchased by
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Vitthal, son of Krishna Pawar, i.e. grandfather of the defendants
and plaintiffs. After his demise, the plaintiffs' father inherited
the suit schedule property. She submits that after the demise
of Sri.Vitthal Krishna Pawar, the plaintiffs and defendants have
inherited the suit schedule property. The plaintiffs and
defendants are the members of a Hindu Undivided Family, and
no partition is effected between the plaintiffs and defendants.
She submits that, the plaintiffs have denied the execution of
Ex.D15, and the defendants have not taken any steps to prove
the alleged signatures appearing on the Ex.D15. She submits
that, though, the alleged Ex.D15 was executed in 1997, till
2018, it was not acted upon. She submits that PW.1 has never
admitted regarding the alleged partition between the plaintiffs
and the defendants. She submits that, the trial Court was
justified in passing the judgment and preliminary decree.
Hence, on these grounds, she prays to dismiss the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the parties.
12. The points that arise for our consideration are
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(i) Whether defendant No.2 proves that there was a
prior partition in 1996 and the same was reduced
into writing in 1997 as per Ex.D15.?"
(ii) Whether the defendants have made grounds to
allow the application filed under Order XLI Rule
27 of the Code of Civil Procedure?
(iii) What order or decree?
13. Point No.(i):- The plaintiffs examined the power of
attorney holder as PW.1. He reiterated the plaint averments in
the examination in chief and to establish that, the suit schedule
property is the ancestral and joint family property of the
plaintiffs and defendants, the plaintiffs have produced the
document marked as Ex.P1, which is the general power of
attorney which discloses that the plaintiffs have authorized
PW.1 to depose on behalf of the plaintiffs. Ex.P2 is a certified
copy of the mutation extract, which discloses that, after the
demise of Gopal, the suit property was transferred in the name
of the plaintiffs and defendants. Ex.P3 is the certified copy of
the mutation extract, which discloses that after the demise of
Vitthal, the property was mutated in the name of Gopal. Ex.P4
is a record of rights regarding suit schedule property standing
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in the name of Vitthal i.e. propositus. Ex.P.5 is tax assessment
of VPC No.655/1 standing in the name of Lakshmibai wife of
Gopal Pawar i.e., mother of plaintiffs and defendant No.2.
Ex.P6 is the death certificate of Gopal Vitthal Pawar who died
on 09.02.1997. Ex.P7 is the death certificate of Lakshmibai wife
of Gopal Pawar, i.e the mother of defendant No.2 and the
plaintiffs. During cross examination, except suggesting that,
there was a prior partition in 1996 and the same was reduced
into writing in 1997 as per Ex.D15, which bears signatures of
plaintiffs and defendant No.1. The said suggestion was denied
by defendant No.1.
14. In rebuttal, defendant No.2 was examined as DW.1.
He reiterated the written statement averments in his
examination-in-chief. He has deposed that, the suit schedule
property was purchased by his grandfather i.e. Vithal under a
registered sale deed dated 13.06.1950. Vithal died leaving
behind Gopal as his legal heir. After the demise of Vithal, the
property was transferred in the name of Gopal, who is the
father of the plaintiffs and the defendants. Gopal married one
Radhabai, and defendant No.1 was born to them. Radhabai
died leaving behind Gopal and defendant No.1 as legal heirs.
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After the death of Radhabai, Gopal married one Lakshmibai,
and she gave birth to the plaintiffs and defendant No.2. He
deposed that, there was a prior partition in 1996 and the same
was reduced into writing in 1997. Hence, the plaintiffs are not
entitled to share in the suit schedule properties. Further, to
prove his defence, he has produced Ex.D-1, which is the tax
assessment extract of suit schedule property; Exs.D-2 to D-12
are the photographs; Ex.D-13 is the resolution passed by the
panchayat wherein, defendant No.2 submitted a wardi for
transfer of the property to his name based on the Memorandum
of Partition alleged to have been executed on 15.01.1997 and
based on the wardi submitted by defendant No.2, Panchayat
has passed an order on 19.06.2018 wherein, the Gram
Panchayat passed a resolution to transfer the property in the
name of defendant No.2. Ex.D-14 is the wardi submitted by
defendant No.2 to Gram Panchayat to transfer the said
property in his name and the said wardi was submitted on
16.06.2018. Ex.D-15 was marked subject to objections.
Ex.D-16 is the tax assessment extract, which discloses the
names of Laxmibai, the plaintiff and the defendants as the
owner of the suit schedule property. Ex.D-17 is the death
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certificate of Kallappa, who was an attesting witness to Ex.D-
15. Ex.D-18 is the death certificate of Dattatreya, who is also
an attesting witness to Ex.D-15. Ex.D-19 is the rough sketch;
Exs.D-20 to 25 are the electricity bills, which disclose that,
defendant No.2 is in possession and enjoyment of the suit
schedule property; Exs.D-26 to D-29 are the receipts for having
paid the electricity bills. Further, defendant No.2 examined one
witness-Sri.Ramachandra s/o of Sri. Laxman Shinde as DW-2,
deposed that, partition was effected between the plaintiffs and
the defendants in 1996, and the same was reduced into writing
in 1997.
15. From the perusal of the evidence of DWs.1 and 2,
the defendants except producing Ex.D-15, have not produced
any other records to establish a prior partition in 1996 and the
same was reduced into writing as per Ex.D-15. Ex.D-15 was
marked subject to objections. The defendant No.2 filed an
application under Order XI Rule 14 of the Code of Civil
Procedure for issuance of notice to defendant No.1 to produce
the memorandum of partition dated 16.01.1997. On
15.06.2018 the trial Court directed defendant No.1 to produce
the original memorandum of partition dated 16.01.1997.
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Sufficient opportunity was granted to the defendants. The
defendants, despite granting sufficient opportunity, have not
produced the original Memorandum of Partition. The
defendants failed to establish a prior partition between the
plaintiffs and the defendants in 1996, and the same was
reduced into writing on 16.01.1997 as per Ex.D-15. The
defendants have failed to prove the execution of Ex.D-15. The
plaintiffs have denied their signature on Ex.D-15. The
defendants have not taken any steps to refer the document to
any Handwriting Expert. The defendants have failed to prove
the execution of Ex.D-15 by not producing the original
Memorandum of Partition, as ordered by the trial Court dated
15.06.2018. The trial Court has rightly drawn an adverse
inference against the defendants under Section 114(g) of the
Indian Evidence Act, 1872 and rightly held that, the defendants
have failed to prove the prior partition between the plaintiffs
and the defendants, and rightly decreed the suit of the
plaintiffs.
16. In view of the above discussion, we answer Point
No.(i) in the negative.
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17. Point No.(ii): Defendant No.2 filed an application
in I.A.1/2019 for the production of additional evidence. In
support of the application, an affidavit is filed contending that
the plaintiffs have filed a suit for partition and separate
possession and defendant No.2 filed the written statement and
produced the documents. The trial Court decreed the suit. It is
stated that, the documents could not be produced before the
trial Court due to inadvertence, and it was neither deliberate
nor intentional on the part of defendant No.2. It is stated that,
the documents, now intended to produce are the said
unregistered sale deed alleged to have been executed by
defendant No.1 in favour of defendant No.2 in respect of the
suit schedule property and defendant No.2 has paid the entire
consideration amount. Defendant No.1 has admitted in his
written statement about having sold his share to defendant
No.2 and intends to produce the bank passbook for having
availed of a loan at the time of purchase of a portion of the suit
schedule property. The said documents are vital and
indispensable to establish the defence of defendant No.2.
Hence, prayed to allow the application for the production of
additional documents.
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18. The plaintiffs have not filed objections.
19. Perused the affidavit filed by defendant No.2. In
the application accompanied by an affidavit, defendant No.2
has not stated in the affidavit as to why the said documents
were not produced before the trial Court though the said
documents were in the custody of defendant No.2. Further,
defendant No.2 has not explained the reasons for not producing
the proposed additional documents before the trial Court.
Defendant No.2 has failed to establish the requirement of Order
XLI Rule 27 of CPC. Further, the object of Order XLI Rule 27 of
CPC is not to fill up the lacuna as law laid down by the Hon'ble
Apex Court in the case of N. Kamalam (dead) and another v.
Ayyaswamy and another wherein it is held that 'provisions of
Rule 27 of CPC are not designed to help parties patch up weak
points and make up for omissions earlier made. The
jurisdiction of appellate Court is restricted to permitting such
additional evidence as would enable it to pronounce judgment.'
Thus, defendant No.2 has not fulfilled the requirement of Order
XLI Rule 27 of CPC.
(2001) 7 Supreme Court Cases 503
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20. Admittedly, defendant No.2 has produced the
alleged agreement of sale alleged to have been executed by
defendant No.1 in favour of defendant No.2 and also
unregistered sale deed alleged to have been executed by
defendant No.1 in favour of defendant No.2. Defendant No.2
has not acquired any title by virtue of an unregistered sale
deed, alleged to have been executed by defendant No.1 in
favour of defendant No.2. Further, the plaintiffs are not
signatory to the alleged sale deed. Unless the deed of
conveyance through which the alleged transfer took place was
registered in accordance with the provisions of the Registration
Act, the defendant No.2 has not acquired any valid title by
unregistered sale deed Ex-D15. The defendant No.2 fail to meet
the requirement of a valid sale under Section 54 of the Transfer
of Property Act. The Hon'ble Apex Court in the case of Sanjay
Sharma V/s Kotak Mahindra Bank ltd. & Others in SLP(C)
No.330/2017 disposed of on 10.12.2024 held that unless the
deeds of conveyance through which the alleged transfer took
place were registered in accordance with the Section 17 of the
Registration Act, 2008 till then, there is no conveyance in the
eyes of law. The alleged sale deed is not binding on the
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plaintiffs. Hence, defendant No.2 has not made out any
grounds to entertain I.A.1/2019. Though, the trial Court has
decreed the suit, the trial Court has not awarded the quantum
of share to the parties. From the records, it clearly discloses
that, the plaintiffs and the defendants each, are entitled to
1/4th share in the suit schedule property. Exercising
jurisdiction under Order XLI Rule 33 of CPC, we modify the
judgment and preliminary decree passed by the trial Court.
21. In view of the above discussion, we answer Point
No.(ii) in the negative.
22. Accordingly, we answer Point No.(iii) and proceed to
pass the following:
ORDER
The appeal is allowed in part. The judgment and
preliminary decree dated 15.02.2019 passed by the learned IV
Additional Senior Civil Judge and JMFC, Belagavi, in O.S.
No.263/2014, is modified. It is declared the plaintiffs and the
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defendants, each, are entitled to 1/4th share in the suit
schedule property.
Draw preliminary decree.
No order as to the cost.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
HMB-Upto para 13
Kmv-from para 14 till end
ct-cmu
