(BY SRI SHIVANAND PATIL, ADV., FOR R1(B) & R1(C) AND R3;
(LRS OF DECEASED R1 (A) ARE R1(B) AND R1(C) & R3;)
SRI ARUN KUMAR AMARGUNDAPPA AND
SRI VISHWANATH RAMPURE, ADVOCATE FOR R2;
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL
PROCEDURE, PRAYING TO CALL FOR RECORDS AND SET-ASIDE
THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED BY
THE HON'BE PRINCIPAL SENIOR CIVIL JUDGE AT RAICHUR IN
O.S.NO.120/2007 AND DECREE THE SUIT OF THE PLAINTIFF
WITH COSTS BY ALLOWING THIS APPEAL, IT IS FURTHER
PRAYED THAT THE COUNTER CLAIM OF THE
DEFENDANTS/RESPONDENTS BE DISMISSED WITH EXEMPLARY
COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
IN R.F.A. NO.200087 OF 2023
a. SARSWATHI
W/O KALEGAL CHENNAPPA
AGE: 53 YEARS,
R/O: CHIKSUGUR,
RAICHUR.
b. NARSAMMA
W/O DEVANNA
AGE: 50 YEARS,
R/O: NAANDAHAPALLI,
ADONI MANDAL
ANDHRA PRADESH.
2. DEVARAJ
S/O SUGANNA
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: AROLI, TQ: MANVI,
DIST: RAICHUR.
3. BASAVARAJ
S/O SUGANNA
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: AROLI,
TQ: MANVI,
DIST: RAICHUR.
(BY SRI SHIVANAND PATIL, ADV., FOR R1(A) & R1(B) AND R3;
SRI ARUN KUMAR AMARGUNDAPPA, ADVOCATE FOR R2;
EXEMPLARY COSTS, IN THE INTEREST OF JUSTICE AN EQUITY.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT THIS DAY, S.SUNIL DUTT YADAV J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
2. RFA No.6013/2012 is filed challenging the
dismissal of suit in O.S.No.120/2007, while RFA
No.200087/2023 is filed against the allowing of the
counter-claim and in light of the suit and counter-claim
being disposed off by a common order, both the appeals
are disposed off vide this common judgment.
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3. The prayers made in the suit and counter-claim
are as follows:-
Prayer in Suit:-
"That the Hon'ble Court may be pleased to decree the
suit of the plaintiff and grant the following relief:
a) A decree of partition granting one half in the
suit schedule properties to the plaintiff and
handing over separate possession thereof to
the plaintiff after dividing the same by
metes and bounds.
b) Such other decree or order which the
Hon'ble Court deems fit in the circumstances
of the case, and
c) Award costs of the suit.
Prayer in counter claim:-
The defendant No.1 therefore prays that, the
Hon'ble Court be pleased to dismiss the suit of the
plaintiff with exemplary costs and allow the counter
claim of defendant No.1 and pass the decree in favour of
defendant No.1 as follows.
a) A declaratory decree that the defendant No.1
is the absolute owner and possessor of the
lands described in the schedule of counter claim
of the defendant No.1.
b) By restraining the pltf (sic), his men,
servants, persons claiming under him fro (sic)
causing any interference in the peaceful
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possession of the defendant No.1 over the
schedule properties of the counter claim.
c) The costs of the counter claim are awarded.
d) Such other relief or relief's which the Hon'ble
Court deem fit and proper and the defendant
No.1 is entitle to in the circumstances of the
these may also be awarded in favour of
defendant No. 1, in the interest of Justice."
4. The Genealogy of parties is as follows:
Hampanna
Suganna
Rachanna
(Defendant - 1 )
Veeresh
(Plaintiff)
Ademma Saraswati Narasamma Devaraj Basavaraj
(Wife) (Daughter) (Daughter) (Son) (Son)
Defendant -1(a) Defendant -1(b) Defendant.1(c) Defendant-2 Defendant-3
5. The parties are referred to by their rank before
the Trial Court.
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6. The plaintiff S. Veeresh claims to be the son of
Rachanna. It is asserted that Hampanna was the
Prepositus and died leaving behind his two children
Rachanna and Suganna (defendant no.1). The plaintiff
claims to be the son of Rachanna while the defendant
nos.2 and 3 are stated to be the sons of Suganna.
7. It is asserted that after the death of Hampanna,
the properties left behind by him were succeeded to by
Rachanna and the defendant no.1 in equal shares. It is
further asserted that consequent to the death of
Rachanna, the plaintiff has succeeded to the share of
Rachanna.
8. It is stated that in light of the defendants not
honouring the claim of the plaintiff, the present suit came
to be filed seeking for decree regarding one half share as
also handing over of separate possession after dividing the
same by metes and bounds.
9. The properties are more fully described in the
Schedule. The defendant no.1, Suganna, has filed the
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written statement denying that plaintiff is the son of
Rachanna and asserts that plaintiff is the son of
Channabasappa.
10. The relationship however between defendant
no.1 (Suganna) and Rachanna being the children of
Hampanna is admitted and the further averment that
defendant no.2 and 3 are the sons of defendant no.1 is
also admitted.
11. It is specifically asserted that defendant no.1
and Rachanna had constituted joint family and through
joint efforts had acquired various agricultural lands.
12. It is specifically asserted that plaintiff had not
included few of the properties described in para-4 of
written statement as a subject matter of the legal
proceedings and accordingly the suit was bad due to
non-inclusion of the said properties in the Plaint Schedule.
13. It was also asserted that there was a partition
between defendant no.1 and Rachanna as regards the
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joint family properties pursuant to which mutations have
been effected in the names of defendant no.1 and
Rachanna. As Rachanna died on 04.10.2003 as a Bachelor
leaving behind him no legal heirs, defendant no.1 alone
has succeeded to all the landed properties of Rachanna as
preferential Class-II heir.
14. The defendant no.1 has also preferred a counter-
claim asserting that he is the owner in possession of the
schedule lands and has also detailed the properties in the
form of Schedule at Para-18 of his pleading. The
defendant no.3 has adopted the written statement of
defendant no.1.
15. After the death of Suganna, during the pendency
of proceedings, his legal representatives being the wife
and daughters have come on record as defendant nos.1(a)
to 1(c) and have filed a separate written statement. The
daughters of late Suganna while asserting that they were
given gold, cash and other valuable properties at the time
of marriage, they have given up their claim "in the suit or
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non-suit properties". It is admitted that defendant nos.2
and 3 are alone entitled to all the properties left behind by
the deceased prepositus.
16. It is specifically asserted that the plaintiff is a
total stranger to the family of the defendants and is falsely
trying to appropriate the properties left by Rachanna by
claiming himself as the son of Rachanna.
II. TRIAL COURT OBSERVATIONS:-
17. The Court has framed the following issues:
1) Whether the plaintiff proves that, he is the
son of Rachanna?
2) Whether he proves that, the suit schedule
properties are the it (sic) family properties of
himself and the defendant?
3) Whether the suit of the plaintiff is bad for
nonjoinder of all the properties?
4) Whether the defendants prove that, he is the
exclusive owner and possessor of suit
properties as claimed by him in the counter
claim?
5) Whether the plaintiff is entitled to any share
in the suit property? If so to what share is he
entitled?
6) What decree or order?"
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18. It is to be noted that the answers recorded by
the Trial Court at para-10 of the impugned judgment is in
variation with the reasoning and conclusion. Such variation
is noted as hereunder:-
Observations of Trial Court at Conclusion recorded in the
para-10 of the impugned reasons on the issues framed
judgment
Issue no.1:In the affirmative
Issue nos.1 and 2 are answered
Issue no.2:In the affirmative in the negative;
Issue no.3: none survival for Issue no.3 is concluded as not
consideration surviving for consideration;
Issue no.4: none survival for Issue no.4 is answered in the
consideration affirmative;
Issue no.5: In the negative Issue no.5 is answered in the
negative.
Accordingly, as per the reasonings recorded by the
Trial Court, the answers recorded at para-10 of the
impugned judgment ought to have been as follows:-
(i) Issue nos.1 and 2 - In the negative;
(ii) Issue no.3 - as not surviving for consideration
(iii) Issue no.4 - in the affirmative
(iv) Issue no.5 - in the negative
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19. The plaintiff has led in evidence by examining
himself as PW.1, while defendants have led in evidence
through DW.1 to DW.3. Plaintiff has got marked
documents as per Ex.P1 to P20 and defendants have
marked the documents as per Ex.D1 to D136.
20. The Trial Court has observed that the only
disputed contention is that the defendants have denied the
relationship of the plaintiff with the joint family.
21. The Court has taken note of the suggestion of
plaintiff during cross-examination that after the death of
Channabasappa, Parvathamma contracted second
marriage with Rachanna. It has however observed that
such facts are absent in the pleadings. Further, it has
noticed that in Ex.D1, RTC the entry of "Parvathamma W/o
Channabasappa" is found and as regards such entry no
explanation was forthcoming from the plaintiff. The Court
has observed that O.S.No.5/1997 filed seeking declaration
that plaintiff is the son of Rachanna, was dismissed for
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non-prosecution. Taking note of the Sale Deeds which
indicated that plaintiff is the son of Channabasappa and
Parvathamma and other materials referred to above, the
Trial Court has concluded that the plaintiff has failed to
prove that he is the son of Rachanna. In light of such
finding the Court has observed that the suggestion that
suit properties are joint family properties of plaintiff and
defendants does not arise for consideration and
accordingly, recorded a finding as regards issue No.2 in
the negative, issue no.3 framed regarding suit being bad
due to non-joinder of all properties is declared as not
arising for consideration.
22. However, as regards the counter-claim, the trial
court has allowed the relief for declaration claimed while
observing that in view of finding on issue No.1, it can be
taken that the relief of counter-claim stands established as
regards the properties described. Accordingly issue No.4
is held in the affirmative. In light of such result, present
appeal is filed.
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III. ARGUMENTS:-
23. Learned Counsel for plaintiff Sri.Sachin Mahajan,
has advanced several contentions and has sought to make
out a case for decreeing the suit.
24. It is contended that the finding of the Trial Court
on issue no.1 that the plaintiff is not the son of Rachanna
is erroneous, that Rachanna himself had admitted that the
plaintiff is his son as is evident from Ex.P13, which is the
Registration Certificate of the vehicle showing the name of
the plaintiff being the son of Rachanna. In terms of
Ex.P18, Rachanna had in a proceeding before the Tahsildar
shown the name of the plaintiff as his son.
Such admission, it is stated, is binding on Suganna and his
children as they are claiming the property of Rachanna
and hence, are bound by Rachanna's admission.
25. It is further contended that once Rachanna had
acknowledged him as his son, he would be entitled to the
property of Rachanna.
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26. Learned Counsel Sri.Shivanand Patil would
contend that 'admission' of Rachanna would not be binding
on the defendants who are disputing the relationship of
plaintiff with Rachanna.
27. It is submitted that the plaintiff in his
cross-examination has admitted that Channabasappa was
the first husband of his mother Parvathamma and after his
death, she has married Rachanna. If such is the stand of
the plaintiff, necessary pleadings ought to have been
made and in the absence of such pleading, no amount of
evidence could be looked into.
28. It is specifically contended that the plaintiff has
not lead sufficient evidence to demonstrate that he is the
son of Rachanna and reliance is placed on various
documents wherein the plaintiff is described to be the son
of Channabasappa. Ex.D107 is the Sale Deed dated
23.08.1976 describing the plaintiff as son of
Channabasappa, Ex.D-102 to D-105 which relate to the
Record of Rights show the name of Veeresh, S/o
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Channabasappa, Ex.D120 which is the Sale Deed by virtue
of which Parvathamma purchases property is described as
Parvathamma, W/o Channabasappa, Ex.D123 is the
application addressed to the Tahsildar requesting the
Tahsildar to mutate the name of Devaraj S/o Veeresh from
the name of Parvathamma, W/o Channabasappa.
IV. ANALYSIS:-
29. Heard both sides.
30. The following points arise for determination:
(A) Whether the finding of the trial court on
Issue no.1 as regards the relationship of the
plaintiff with Rachanna calls for any
interference ?
(B) Whether the finding of the Trial Court as
regards counter claim requires to be
allowed?
(C) Whether any other ground is made out for
interference with the findings of the Trial
Court?
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31. It must be noticed that plaintiff has specifically
asserted that he is the son of Rachanna and it is on such
basis that the relief in the suit of granting a decree of
partition and allotting one half in the suit schedule
properties to the plaintiff as well as passing of a decree of
separate possession after such division is sought for.
32. The admitted facts being that Hampanna had
two sons viz., Rachanna and Suganna. The plaintiff claims
to be the son of Rachanna. It is the specific case of the
defendants that Rachanna died as a Bachelor and that the
plaintiff was not his son but the son of Parvathamma and
Channabasappa. Accordingly, it is contended that plaintiff
is a stranger to the family of Hampanna.
33. The defendants in order to put forth their case
have relied on voluminous evidence to contend that the
plaintiff was the son born to Parvathamma and
Channabasappa.
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34. The following are the documents marked in
evidence which would indicate that Parvathamma and
Channabasappa were married to each other and the
plaintiff was also described as their son in documents
marked as evidence. Such of the documents which would
establish the above relationship marked in evidence are as
follows:
i) Ex.D107 is the Sale Deed executed on
23.08.1976 in favour of the plaintiff wherein
name of the plaintiff is described as Veeresh,
S/o Channabasappa.
ii) Ex.D123 is the application given by the
plaintiff to the Tahsildar stating that
consequent to the death of his mother
Parvathamma, W/o Channabasappa,
properties standing in her name may be
changed into the name of his son Devaraj. In
the said document, plaintiff describes his
mother as Parvathamma, W/o
Channabasappa and himself as Veeresh, S/o
Channabasappa.
iii) Ex.D125 is a Family Tree wherein plaintiff is
described to be the son of Channabasappa.
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iv) Ex.D126 is the Death Certificate of
Parvathamma and name of husband is shown
as Channabasappa.
v) Ex.D127 - Voters List of the year 1988 shows
the name of Parvathamma and her husband
Channabasappa.
35. There are other revenue entries also which
would indicate Veeresh as being the son of
Channabasappa such as, Ex.D95, 96, 97, 98, 99, 101,
102, 103, 104 and 106. In all such Record of Rights, the
name of the plaintiff is shown as Veeresh, S/o
Channabasappa.
36. The above documents being entries in public
records are required to be given due evidentiary
weightage as being records prepared by Government
Officials and presumption in terms of Section 114 of the
Indian Evidence Act, 1872 that such entries are reflective
of official acts regularly performed.1
Illustration E to Section 114
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37. The plaintiff in his cross-examination has
deposed as under:
" £À£Àß vÀAzÉ ªÀiÁ¤é £ÁåAiÀiÁ®AiÀÄzÀ N.J¸ï.£ÀA.33/1996 gÀ°è
gÁZÀtÚ £À£ÀߣÀÄß vÀ£Àß ªÀÄUÀ C¯Áè JAzÀÆ ¤.r.110 gÀAvÉ zÁªÉ
zÁR°¹zÁÝ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. CzÀgÀ°è £À£Àß vÀAzÉAiÀÄ ºÉ¸g
À ÀÄ
ZÉ£Àߧ¸Àì¥Àà CAvÁ §gÉAiÀįÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. D PÉù£À°è £À£Àß
vÁ¬Ä, ZÉ£Àߧ¸Àì¥Àà £À£Àß UÀAqÀ JAzÀÆ §gÉ¢zÁÝ¼É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgz
É ÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ, ZÉ£ßÀ §¸Àì¥Àà £À£Àß vÁ¬Ä
¥ÁªÀðvÀªÀÄä¼À ªÉÆzÀ®£Éà UÀAqÀ EgÀÄvÁÛ£É ªÀÄvÀÄÛ CªÀgÀÄ ¸ÀvÀÛ £ÀAvÀgÀ
£À£Àß vÁ¬ÄUÉ gÁZÀtÚ EgÀÄvÁÛg.É £À£Àß vÁ¬ÄAiÀÄ JgÀq£
À ÃÉ UÀAqÀ gÁZÀtÚ
EgÀÄvÁÛgÉ JAzÀÆ £Á£ÀÄ E°èAiÀĪÀgU
É ÀÆ J®Æè ªÀÄvÀÄÛ zÁªÉAiÀÄ°è
§gɬĹgÀĪÀÅ¢®è. ¥ÁªÀðvÀªÀÄä¼ÀÄ JgÀqÀ£ÃÉ ªÀÄzÀĪÉAiÀiÁVzÁÝ¼É JAzÀÆ
F ¢£À £Á£ÀÄ ºÉƸÀzÁV ¸ÀȶֹPÉÆAqÀÄ ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ
¸ÀjAiÀÄ®è. £Á£ÀÄ ºÀÄlÄÖªÀÅzÀQÌAvÀ ªÉÆzÀ®Ä gÁZÀtÚ £À£Àß vÁ¬Ä
¥ÁªÀðvÀªÀÄä¼£
À ÀÄß ªÀÄzÀĪÉAiÀiÁVzÀÝ. ¤.r.120 zÁR¯ÉAiÀÄÄ 1986 gÀ°è
DVzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸Àzj
À ¤.r.120 gÀ°è £À£Àß vÁ¬Ä ¥ÁªÀðvÀªÀÄä¼À
UÀAqÀ£À ºÉ¸g
À ÀÄ ZÉ£Àߧ¸Àì¥Àà CAvÁ EzÉ gÁZÀtÚ CAvÁ £ÀªÀÄÆzÀÄ
EgÀĪÀÅ¢®è. F §UÉÎ £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ
¸ÀjAiÀÄ®è."
(emphasis supplied)
38. If it is the stand that Rachanna married
Parvathamma subsequently and accordingly, plaintiff was
claiming as legal heir of Rachanna as well, such case ought
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to have been set up by specific pleading which is absent.
Once the written statement is filed, denying relationship of
plaintiff with Rachanna's family, the plaintiff ought to have
filed additional pleadings with permission of the Court
setting up his defence specifically that he is the son of
Rachanna in terms of Order VIII Rule 9 of Code of Civil
Procedure or atleast ought to have raised such case by
filing response to the counterclaim.
39. It is the settled position of law that no amount
of evidence without pleading can be looked into.2 The
Trial Court has also rightly noticed that the plaintiff has
not putforth pleadings as to when he became the son of
Rachanna. Unless the case that Rachanna married
Parvathamma is set up and evidence in support of such
case was lead before the Court, the question of accepting
the contention that plaintiff is the son of Rachanna does
not arise. Though in the latter position of the same
As held by the Bench of Three Judges of the Apex Court in Biraji @ Biraji & Another v. Surya
Pratap and Others - (2020) 10 SCC 729 that in the absence of pleading, no amount of evidence
will help the party.
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deposition, there is an effort to water down the admission,
the plaintiff's admission that Channabasappa and
Parvathamma were his father and mother, still remains.
40. The contention advanced at the time of
arguments before this Court that Rachannna had treated
the plaintiff as his son as evidenced by proceedings before
the Tahsildar as per Ex.P18, copy of the Registration
Certificate of the vehicle at Ex.P13 has the effect of
binding the defendant cannot be accepted. It is the
specific case of the defendant that plaintiff is not the son
of Rachanna. The defendants who claim through Suganna
base their rights as preferential heirs of Rachanna and in
the absence of any children to Rachanna, they inherit the
property of Rachanna in terms of law of succession3.
If such is the right of succession putforth by defendants,
Section 11 of the Hindu Succession Act, 1956 is extracted as follows:- 11. Distribution of
property among heirs in class II of the Schedule.- The property of an intestate shall be
divided between the heirs specified in any one entry in class II of the Schedule so that they,
share equally.
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such independent right cannot be defeated unless plaintiff
proves that he is the son of Rachanna.
41. The alleged admission of Rachanna that plaintiff
is his son does not confer the plaintiffs with the legal
capacity of son so as to displace the rights claimed by
Suganna's children as preferential heirs in law. The
alleged admission of Rachanna treating the plaintiff as his
son cannot bind Suganna's heirs. Though there are certain
documents such as Ex.P17 which is the Transfer Certificate
which shows the name of Veeresh and father's name as
Rachanna and mother's name as Parvathamma, however,
such document does not in any way have the effect of
conclusively proving that the plaintiff is the son of
Rachanna.
42. On appreciation of the entirety of evidence
would only indicate that plaintiff was the son of
Parvathamma and Channabasappa as deposed by the
plaintiff in the cross-examination.
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43. It may be that Parvathamma married Rachanna
subsequently. However, such case is not pleaded and
unless pleaded, no amount of evidence could be relied on
to establish such relationship. Accordingly, the finding of
the trial court that plaintiff is not the son of Rachanna
requires acceptance.
44. The counter claim has been filed by the original
defendant No.1 Suganna contending that after receipt of
Court notice the plaintiff has come to know regarding the
plaintiff having entered his name as regards the property
in Item Nos.1 to 4 of the written statement schedule
properties.
45. The prayer sought in the counter claim is that
the defendant is the absolute owner of the Schedule lands
and that an order of injunction be passed restraining the
plaintiff's interference. The plaintiff not having filed the
written statement to the counter claim, the Trial Court has
decreed the counter claim. It is observed that, the issue
no.1 has been held in the negative holding that the
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plaintiff has failed to prove that he is the son of Rachanna
and has proceeded to hold that the plaintiff is the owner of
the written statement/counter claim properties.
46. Learned counsel for the plaintiff has contended
that the counter claim must be 'against the claim of the
plaintiff' and in the present case the counter claim relates
to properties that are not a part of the Plaint schedule.
47. It must be noticed that the claim in the suit
relates to the properties stated to be the joint family
properties of Hampanna who was survived by Rachanna
and Suganna. The plaintiff sets up his claim as the son of
Rachanna.
48. The counter-claim as noticed above relates to the
plaintiff having got revenue records entered into his name
claiming to succeed to Rachanna's share. Both the suit
and counter claim relate to the assertion of the plaintiff as
the son of Rachanna.
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49. Accordingly, it can be stated that the
counter-claim is 'against the claim of the plaintiff', while
the plaintiff seeks for partition of joint family properties on
the premise that he is the son of Rachanna and
accordingly, has a right in the properties left out by him,
the counter claim seeks for a relief of declaration as
regards properties claimed by the plaintiff in the capacity
of Rachanna's son.
50. Further, it must be noticed that the scope of
counter claim has now been enlarged after the
amendment to Code of Civil Procedure. The observations
of Apex Court throws light on the wide amplitude of the
counter claim in the case of Jag Mohan Chawla &
Another v. Dera Radha Swami Satsang & Others4 and
the relevant observations are as follows:
"5. ... In sub-rule (1) of Rule 6-A, the
language is so couched with words of wide width as
to enable the parties to bring his own independent
cause of action in respect of any claim that would
1996 (4) SCC 699,
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be the subject-matter of an independent suit.
Thereby, it is no longer confined to money claim or
to cause of action of the same nature as original
action of the plaintiff. It need not relate to or be
connected with the original cause of action or
matter pleaded by the plaintiff. The words "any
right or claim in respect of a cause of action
accruing with the defendant" would show that the
cause of action from which the counter-claim arises
need not necessarily arise from or have any nexus
with the cause of action of the plaintiff that
occasioned to lay the suit. The only limitation is
that the cause of action should arise before the
time fixed for filing the written statement expires.
The defendant may set up a cause of action which
has accrued to him even after the institution of the
suit. The counter-claim expressly is treated as a
cross-suit with all the indicia of pleadings as a
plaint including the duty to aver his cause of action
and also payment of the requisite court fee
thereon. Instead of relegating the defendant to an
independent suit, to avert multiplicity of the
proceeding and needless protection
(sic protraction), the legislature intended to try
both the suit and the counter-claim in the same
suit as suit and cross-suit and have them disposed
of in the same trial. In other words, a defendant
can claim any right by way of a counter-claim in
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respect of any cause of action that has accrued to
him even though it is independent of the cause of
action averred by the plaintiff and have the same
cause of action adjudicated without relegating the
defendant to file a separate suit. Acceptance of the
contention of the appellant tends to defeat the
purpose of amendment. Opportunity also has been
provided under Rule 6-C to seek deletion of the
counter-claim. It is seen that the trial court had not
found it necessary to delete the counter-claim. The
High Court directed to examine the identity of the
property. Even otherwise, it being an independent
cause of action, though the identity of the property
may be different, there arises no illegality
warranting dismissal of counter-claim. Nonetheless,
in the same suit, both the claim in the suit and the
counter-claim could be tried and decided and
disposed of in the same suit. ..."
51. In the present case, it is also to be noticed that
Order VIII Rule 6 of Code of Civil Procedure, the plaintiff is
entitled to seek for exclusion of counter-claim from the
proceedings and may apply to the Court for an order that
the counter-claim be filed as a separate suit. Such option
has not been exercised.
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52. Coming to the merits of the case set up in the
counter-claim, at the out set, records do not revel that any
pleading is filed before the trial Court opposing the
counterclaim. The counter-claim seeks for declaration that
the defendant is the owner of the schedule properties and
that the plaintiff ought not to interfere with the said
properties.
53. The trial Court has allowed the counter-claim
while observing that once issue no.1 in the suit is held in
the negative and the plaintiff has not proved that he is the
son of Rachanna and as the properties belong to Rachanna
the counter-claim requires to be allowed.
54. It must be noticed that the counter-claim was
filed by Suganna when he was alive. The primary
allegation made is that plaintiff has got his name inserted
in the revenue records as regards the properties of
Rachanna.
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55. As noticed by the trial Court, the plaintiff has
failed to establish that he is the son of Rachanna, which
conclusively proves that the plaintiff cannot claim rights to
the properties of Rachanna as a legal heir of Rachanna.
56. The properties claimed in the counter-claim are:-
Hissa Measurement
Sl. No. Survey No.
No. Acre - Gunta
1) 275 A/1 01 - 14
2) 275 A/2 01 - 10
3) 275 AA 05 - 04
4) 6 - 02 - 38
5) 404 A 04 - 12
All properties situated at Aroli Village.
57. Insofor as item Nos.1 to 3 of the counter-claim
viz., Sy.No.275, A/1 measuring 1.14 guntas, Sy.No.275,
A/2 measuring 1 acre 10 guntas and 275 AA - measuring
5 acre 4 guntas, PW-1, the plaintiff admits that the
properties are the self-acquired properties of Rachanna.
The admission recorded on 18.11.2008 reads as follows:
"Sy.No.275/A/1 measuring 1 acre 16 guntas
and Sy.No.275/A/2 measuring (sic) 1 acre 10
gunts as, Sy.No.275 measuring (sic) 5 acre 4
guntas are situated at Aroli village and the said
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properties have been purchased by Rachanna and
they are the self acquired properties."
58. In the absence of any registered document by
Rachanna conveying the property to the plaintiff, he could
not have got the revenue entries in his name. Accordingly,
allowing of the counter-claim by the trial Court as regards
such properties requires to be upheld, noticing that there
was no written statement filed to the counter-claim.
59. Similarly as regards Sy.No.6, the counter-claim
Schedule Property at Item No.4 of Aroli village was
purchased by Suganna as per the Sale Deed at Ex.D10. In
light of Sale Deed itself standing in the name of Suganna,
the question of the plaintiff claiming any rights in the said
property does not arise and accordingly, the allowing of
the counter-claim as regards such item cannot be faulted.
60. Insofar as item no.5 of the counter-claim viz.,
Sy.No.404 'A' measuring 4 acres 12 guntas, the same was
purchased by Nagamma W/o Hampanna, the mother of
Rachanna and Suganna in items of the Sale Deed at
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Ex.D11, the RTC's stand in the name of Nagamma W/o
Hampanna as per Ex.D37 to D41. In light of such records
the say of the plaintiff that it belongs to his mother cannot
be accepted and the claim set up in the counter-claim
requires to be decreed.
61. Though the trial Court has not dealt in detail as
regards the records produced in support of the counter-
claim, however, this Court in light of the evidence on
record affirms the conclusion of trial Court in terms of the
discussion made above.
62. In light of the discussion made hereinabove, the
points for determination, viz., (A), and (C) are held in
negative and point (B) is held in affirmative.
Accordingly, RFA No.6013/2012 and
RFA No.200087/2023 are rejected.
ORDERS ON APPLICATION UNDER ORDER 41 RULE 27 CPC
The plaintiff-appellant has filed an application under
Order 41 Rule 27 of Code of Civil Procedure seeking to
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produce the additional documents. Such application is filed
along with the memorandum of appeal.
It must be noticed that right to produce additional
evidence is not an unqualified right. The Apex Court in the
case of Union of India v. Ibrahim Uddin and Another5,
has clarified the scope of such applications. It is observed
that the provision does not apply when on the basis of
evidence on record the Appellate Court can pronounce a
satisfactory judgment. It is also specified that the said
provision cannot be made use of by a party to cover their
lapses. At para-40, it is observed that the inadvertence of
the party to understand the legal issues involved or the
wrong advise of a pleader whereby party did not realize
importance of the document would not constitute
"substantial cause" within the meaning of the Rule.
(2012) 8 SCC 148
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In light of the above scope of Order 41 Rule 27 of
CPC, the present application of the plaintiff requires to be
considered.
It is clear that the evidence on record as referred to
by this Court in the judgment would make it clear that the
material on record is sufficient to pronounce the judgment
that this Court is of the view that no occasion arises for
permitting the additional evidence to come on record which
would assist the Court to render the judgment.
The reasons assigned in the affidavit filed in support
of application is to the effect that upon legal advise at the
time of filing of the appeal after discussion with the
counsel, he seeks to produce documents to establish his
case.
It is further averred that he was not advised properly
during the pendency of the suit and in light of ignorance of
procedure and law he had not produced the documents
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before the trial Court and was unaware of the importance
and relevance of those documents.
It must be noticed that amongst the documents
sought to be produced, proceedings in the form of
pleadings in the suits pending between the parties in
O.S.Nos.5/1997 and 33/1996 are sought to be produced.
It is to be noticed that before the trial Court some of
the documents relating to O.S.Nos.5/1997 and 33/1996
have already been produced as Ex.D110 (Plaint in
O.S.No.33/1996) and Ex.D114 (Plaint in O.S.No.5/1997).
The additional documents in the list at Sl.Nos.21 to 28
relate to the said suits and accordingly ought to have been
produced at the first instance in the trial and the present
attempt to produce such documents in the appellate
proceedings without any acceptable reason must be
construed to be an attempt to improvise their case and
cover up the lapses which is impermissible and
accordingly, resort to proceedings under Order 41 Rule 27
of C.P.C. ought not to be allowed.
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The documents in the list annexed to the application
at Sl.Nos.6 to 20 relate to the proceedings before the
Criminal Court and nothing prevented the plaintiff from
producing such documents during the course of trial.
Some of the documents relate to the statements made
which by themselves will not be substantive piece of
evidence unless the authors of such statement are
examined. Such of the witnesses could have been
summoned before the trial Court and not having done so,
the present effort to rectify such lapse is not permissible.
Accordingly, no grounds are made out to permit
adducing of additional evidence as sought for, as even if
such evidence were to be permitted to come on record, it
would not change the outcome or conclusion arrived at by
this Court.
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Accordingly, the application for production of
additional documents is rejected.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
NP,VGR
