N. A. GOPALA GOWDA v. NA. NINGEGOWDA — 1989 DIGILAW 131 (KAR)

CHANDRAKANTHARAJ, J. ( 1 ) THIS is an appeal by the defendants 1 and 2 against the Judgment and decree dated 14- 11-1986 of the Civil Judge at Chickmagalur made in O. S. NO. 56 of 1980 on his file. In (he course of the Judgment, we will refer the parties by the ranks assigned to them in the trial court. ( 2 ) PLAINTIFF N. A. Ningegowda brought the suit for partition of suit schedule item 'a' immovable properties as well as suit schedule item 'b' movable properties inter alia pleading that they were the joint family properties of the family of which defendants 1, 3 and 4 and himself were members but undivided and therefore despite the demand for partition, his share had not been given and therefore he was compelled to file the suit seeking partition and separate possession of his share in suit properties in schedules 'a' and 'b'. ( 3 ) DEFENDANT No. 1 filed his written statement resisting the claim inter-alia contending that only suit schedule 'a', items 1 to 12, were the properties of the family while the reminder of the properties were purchased by him and his wife out of their own funds and did not constitute part of joint family properties which was available for partition. He also specifically pleaded that item No. 24 the Coffee Estate measuring 10 acres in extent situate in Bankal village of Mudigere taluk was neither his nor his wife's and nor were they in possession of the same. ( 4 ) THE defendants 2 and 4 adopted the statement of the first defendant while defendant No. 3 remained neutral, taking neither the side of the plaintiff nor the side of the first defendant. ( 5 ) ON such pleadings, the trial court framed as many as 11 issues which are as follows:1. Whether the plaintiff proves that first defendant is the manager of the joint family ? 2. Whether defendant 1, 2 and 4 have proves that defendant No. 5 is managing the family properties along with defendant No. 3 and plaintiff? 3. Whether plaintiff proves that items 15 to 24 and 26 of 'a' schedule properties are also the joint family properties? 4. Whether first defendant proves that items 18 to 20 and 26 of 'a' Schedule properties are his self-acquired properties ? 5. 3. Whether plaintiff proves that items 15 to 24 and 26 of 'a' schedule properties are also the joint family properties? 4. Whether first defendant proves that items 18 to 20 and 26 of 'a' Schedule properties are his self-acquired properties ? 5. Whether defendants 1 and 2 prove that (a) plaintiff, defendants 3 and 5 are in possession and enjoyment of all the joint family land situated at neekanahally Achanahalli, hiremande and Nalagalli item No. 25 and item No. 27 of 'a' schedule properties ? (b) Defendant No. 4, is in possession and enjoyment of item no. 15 to 17 ? 6. Whether plaintiff proves the existence of 'b' and 'c schedule properties and further that they are the joint family properties ? 7. Whether defendants 1 and 2 prove that the movables found with them at the time of inventory are their own properties ? 8. Whether 4th defendant proves that items 1 to 17 of 'a' Schedule properties are his self-acquired properties ? 9. Whether plaintiff proves that the stock in trade at Gonibeedu shop is worth rs. 1,50,000/-? 10. Whether fourth defendant proves that he has borrowed a loan on the security of stock in trade from M/s. Ganjam textiles and M. Rangappa and Sons, bangalore ? 11. Whether defendants are liable to render accounts, if so, which defendant is liable to render accounts ? ( 6 ) THE plaintiff examined himself and another and got marked as many as 28 documents in support of his plea while the Defendants examined 8 witnesses in support of their case. D. W. I was not the first defendant but the 4th defendant who sailed with the first defendant. On behalf of defendants as many as 7 documents were marked. The court after appreciating the oral and documentary evidence before it recorded a finding in favour of the plaintiff and partly decreed the suit but excluded items No. 22 and 24 of schedule 'a' properties from being available for partition on the ground that the plaintiff had failed to prove that they were part of the joint family properties. It however found that in respect of the other immovable properties in schedule 'a' to the suit, the defendants had failed to establish that items 13 to 27 excluding item No. 24 were the self acquired properties of either the first defendant or the 2nd defendant. It however found that in respect of the other immovable properties in schedule 'a' to the suit, the defendants had failed to establish that items 13 to 27 excluding item No. 24 were the self acquired properties of either the first defendant or the 2nd defendant. ( 7 ) IN order to come to the conclusion, we may state here that the trial court depended upon the admission made by the 1st defendant both in the written statement as well as in the reply notice issued as at Ex. p. 27 that a particular shop was opened out of the joint family funds. Having regard to that admission and the numerous contradictions in the oral evidence led on behalf of the defendants, it came to the conclusion that all purchases made after the first defendant assumed management of the properties of the family after the death of his father were accretion to the joint family properties and could not be considered as self-acquired properties. That is the provocation for the defendants 1 and 2 to prefer this appeal to the extent of their failure before the trial court. ( 8 ) THIS matter was heard by another division Bench of this Court on 9-4-1987. We think it proper to record what purports to be the Judgment which was not concluded by them. It is as follows :- "the finding of the Trial Court is that the defendants had miserably failed to prove their plea that the properties in question were self acquired properties. There is no good ground to interfere with this finding. However, there is an obvious contradiction in the finding of the Trial court in paragraphs 32 and 34 of the judgment regarding the properties bearing sy Nos. 22 and 24. This observation requires modification by this Court. So notice to the respondents only in regard to the properties bearing Nos. 22 and 24. In other respects, there is no good ground to interfere with the judgment and decree of the Trial Court. " Therefore notice were issued to the other side and the matter has been heard by us once again. We have no hesitation to come to the same conclusion that the defendants 1 and 2 failed to establish their plea that certain properties in schedule 'a' were the self-acquired properties. " Therefore notice were issued to the other side and the matter has been heard by us once again. We have no hesitation to come to the same conclusion that the defendants 1 and 2 failed to establish their plea that certain properties in schedule 'a' were the self-acquired properties. For the reasons we give hereafter, we must point out that on a careful scrutiny and analysis of the judgment, the evidence and the schedule properties, there is no contradiction between the findings recorded in paragraph 32 of the Judgment under appeal and paragraph 34 of the Judgment under appeal as noticed by the previous bench which heard this matter. We are unable to know why the earlier bench formed that impression. Even Mr. B. M. Krishna Bhat, learned Counsel for the appellants, was unable to explain to us. We can only hazard agrees. It must be on account of the plea taken by the 1st defendant that he had purchased certain forest land from out of his funds supplied by his brother-in-law and father-in-law and developed it into a Coffee Estate after borrowing money form the Bank. Item no. 24 also happens to be a Coffee Estate which measures about 10 acres and that came to be excluded from being available to partition in paragraph 34 of the judgment under appeal for the reasons given by the learned trial Judge. Perhaps our learned brethren who constituted the earlier bench mistook the Coffee Estate claimed to have been developed by the first defendant to be the Coffee Estate mentioned in item No. 24 which is distinct and separate and situate in different villages of the same District. That becomes obvious when schedule 'a' to the suit plaint is perused. Items 16, 17 and 18 are the lands alleged to have been acquired by the first defendant from out of the funds supplied by his father-in-law and developed into a Coffee Estate after borrowing money from the Bank. That has been clearly discussed earlier in the judgment under appeal and the case of the defendant rejected on the ground that there was no proof of payment of sums alleged to have been given by his father-in-law. The evidence of the brother-in-law, the first defendant, in that behalf, has been disbelieved. That has been clearly discussed earlier in the judgment under appeal and the case of the defendant rejected on the ground that there was no proof of payment of sums alleged to have been given by his father-in-law. The evidence of the brother-in-law, the first defendant, in that behalf, has been disbelieved. As we see from the description of the properties in question, the forest land purchased was situated at Heggydhe village of Mudigere taluk and they consist of two bits of coffee Estate and one bit of wet land. Therefore, it is possible the mistake occurred and a contradiction was noticed between paragraphs 32 and 34. We are now, after careful scrutiny, are satisfied that there is no contradiction. The learned trial Judge correctly came to the conclusion that the plaintiff had failed to produce any evidence that item No. 24 formed part of the joint family properties. Similarly, despite the specific stand taken in the written statement by the first defendant that item No. 24 was not the property of either the first defendant or his wife 2nd defendant and that they were not in possession of the same, the plaintiff did not adduce any evidence that item No. 24 constituted joint family property. Therefore, the learned Judge was correct in excluding item Nos. 22 and 24 from the purview of partition. ( 9 ) WITH these observations and in concurrence with the earlier Division Bench, we dismiss this appeal. We may however add that before passing this order, Mr. B. M. Krishna Bhat for the appellants and Mr. Kumara Swamy for Mr. R. B. Sadashivappa for the contesting respondents have been heard in full. ( 10 ) BEFORE parting with this case, we must notice what Mr. B. M. Krishna Bhat contended. It was this. That he had asked for review of the Judgment in LA. III after the judgment of this Court dated 9-4-1987 was recorded and which was not final. We found that actually on 20-11-1987, LA. III was rejected but he was permitted to raise the point raised in LA. III at the time of further hearing of the appeal. ( 11 ) IT was contended by him today also that this Court had no power to direct notice to the other side because of the contradictions noticed. We found that actually on 20-11-1987, LA. III was rejected but he was permitted to raise the point raised in LA. III at the time of further hearing of the appeal. ( 11 ) IT was contended by him today also that this Court had no power to direct notice to the other side because of the contradictions noticed. We find it difficult to accept that contention having regard to the provision made conferring wide powers under Rule 33 of Order 41 of the C. P. C. Though the plain language of the rule is capable of sustaining the judgment of this court dated 9-4-1987, we are fully fortified by the authority of the Supreme Court in panna Lal v State of Bombay and Others ( AIR 1963 SC 1516 ) wherein the Supreme Court has clearly laid down as follows :-"the wide wording of Order 41, Rule 33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. 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 was no impediment in law the High court in appeal could, therefore, though allowing the appeal of the defendant- appellant by dismissing the plaintiffs suits against it, give the plaintiff - respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument. If a party who could have filed a cross-objection under Order 41, Rule 22 has not done so it cannot be said that the appeal Court can under no circumstances give him relief under the provisions of order 41 Rule 33. AIR 1959 Bombay 56 reversed. "therefore, we must reject the argument that earlier Judgment of this Court was without jurisdiction, appeal rejected. --- *** --- .