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2013 DIGILAW 1038 (KAR)

FAKIRAPPA PARAPPA MARITAMMANNAVAR v. RUDRAWA

2013-09-03

A.N.VENUGOPALA GOWDA, K.L.MANJUNATH

body2013
JUDGMENT K.L. MANJUNATH, J.-The appellants who are defendants 1 to 3 in O.S. No. 54/2004, on the file of Civil Judge (Sr. Dn.), Bailhongal, have preferred this appeal being aggrieved by the judgment and decree passed on 23.11.2009. 2. The facts leading to this appeal are as hereunder: Respondents 1 and 2 were plaintiffs before the trial Court. The suit was filed by them for partition and separate possession of their 1/4th share in all the plaint schedule properties. According to them, one Parappa was the propositus. He died 40 years prior to the institution of the suit. His widow Tippawwa died 4 years prior to the institution of the suit. Parappa and Tippawwa had five sons and one daughter by name Gangawwa. Gangawwa was defendant No. 4, she also died issueless. The elder son of Parappa by name Madiwalappa had no issues and died in 1969. Basappa, Fakirappa, Irappa and Kashappa are the children of Parappa. Rudrawwa, the plaintiff No. 1 and Madivalappa, the plaintiff No. 2 are the widow and son of Basappa the 2nd son of Parappa, who died on 8.12.2002. 3. Contending that after the death of Parappa and during the lifetime of Basappa there was no partition and separate possession of the joint family properties and some of the properties were ancestral in nature and remaining properties are purchased in the name of the defendants out of the joint family income, the suit came to be filed. 4. The defendants contested the suit contending that there is no joint family and joint family properties. The defendant No. 1 admitted the relationship of the plaintiffs with the defendants. It is the specific case of the defendants that in the year 1979 all the joint family properties were divided orally during the lifetime of Basappa and Sy. No. 333/1 measuring 2 acres 13 guntas and house No. 504 which is Sl. No. 3 in schedule C was allotted to the deceased Basappa and later 25 guntas of land in Sy. No. 333/1 was acquired on account of submersion in Malaprabha Project and compensation was also received by the plaintiffs. He further contends that the remaining properties were acquired by the defendants individually after the partition and they cannot be the subject matter of the suit property. Under the circumstances they requested the Court to dismiss the suit. 5. No. 333/1 was acquired on account of submersion in Malaprabha Project and compensation was also received by the plaintiffs. He further contends that the remaining properties were acquired by the defendants individually after the partition and they cannot be the subject matter of the suit property. Under the circumstances they requested the Court to dismiss the suit. 5. Based on the above pleadings, the following issues were framed by the trial Court. Issues: (i) Do the plaintiffs prove that the suit properties are joint family properties? (ii) Do the defendants prove that there was a partition in between plaintiffs and defendants in the year 1979? (iii) Do the plaintiffs prove that they are entitled for 1/4th share in the suit schedule properties? (iv) What order or decree? 6. In order to prove their respective contentions, on behalf of the plaintiffs, 1st plaintiff Rudrawwa got examined herself as PW.1 and also relied upon the evidence of one Channabasappa Duradundappa Ulavi who was examined as PW.2 and relied upon Exs.P.1 to P.38. On behalf of the defendants, the 1st defendant Fakirappa was examined as DW.1 and one witness Balappa Yallappa Hadaginal was examined as DW.2. The defendants relied upon Exs.D.1 to D.30. 7. The trial Court after considering the entire evidence let in by the parties came to the conclusion that the suit properties are joint family properties. Accordingly issue No. 1 was held partly in affirmative and that the defendants failed to prove the earlier partition of the year 1979. Accordingly issue No. 2 was held in negative. In regard to issue No. 3 it was held partly in affirmative. Accordingly the suit of the plaintiffs came to be decreed in part holding that the plaintiffs are having 6/25th share in B and C schedule properties, tractor trailer, share certificates of sugar factories described in Schedule-C. 8. Aggrieved by the judgment and decree passed by the Court below, the present appeal is filed by the defendants. 9. In the appeal, an application is filed by the appellants under Order 41 Rule 27 of CPC seeking permission to lead additional evidence. Similarly, the respondents who are the plaintiffs have also filed an application seeking permission to produce additional documents. Therefore along with the appeal the applications filed by the appellants and respondents seeking permission to lead additional evidence are taken up together. 10. Similarly, the respondents who are the plaintiffs have also filed an application seeking permission to produce additional documents. Therefore along with the appeal the applications filed by the appellants and respondents seeking permission to lead additional evidence are taken up together. 10. The contention of Shri M.G. Naganuri, counsel for the appellants is that the trial Court has committed a serious error in holding issue No. 2 in the negative. According to him, ample material was placed by the appellants/defendants to prove earlier partition of 1979. According to him, pursuant to the oral partition a wardi was given to the village officer to change the mutation entry based on the properties allotted to the respective parties and the same has been acted upon. He further contends that some of the important material documents could not be placed by the appellants before the Court below in regard to the application filed under Section 18 of the Land Acquisition Act by the 2nd plaintiff seeking reference and the evidence let in by him to show that he has claimed compensation individually in respect of Sy. No. 333/1 which clinches the entire issue. According to him, beyond the control of the appellants, the appellants could not produce the aforesaid documents. 11. The learned counsel for the respondents submits that the mutation was entered in the year 1979 in the name of Basappa as a karta of the joint family after the death of Parappa. Revenue entries made by the authorities cannot be considered to hold that there was a partition. According to him, there was no partition. Partition has not been taken place and even after the death of Basappa, the plaintiffs and defendants were living together as members of the Hindu undivided joint family and that the trial Court is justified in decreeing the suit. He further contends that the documents relied upon by the appellant along with I.A. No. 1/2012 for production of additional documents cannot be looked into at this stage. He further submits that the respondents have also filed an application seeking permission to produce the documents to show that there was no prior partition as contended by them. In the circumstances he requests the Court to dismiss the application. 12. He further submits that the respondents have also filed an application seeking permission to produce the documents to show that there was no prior partition as contended by them. In the circumstances he requests the Court to dismiss the application. 12. Shri M.G. Naganuri, the learned counsel for the appellants contends that when the appellants and respondents both have filed an application seeking for production of additional documents, the appellants have no objection to consider the application of the respondents provided the application filed by the appellants is also allowed. He further submits that if an opportunity is given to both the parties, the Court will have an advantage of further documents to show whether there was a partition prior to the institution of the suit or not and no injustice would be caused if these two applications are considered. 13. Having heard the counsel for the parties what is to be considered by this Court is whether there was a prior partition in the year 1979 to non suit the plaintiffs and whether the trial Court has committed an error in holding that there was no prior partition. 14. So far as this point is concerned, now both the parties have filed applications producing documents to show that there was partition and there was no partition respectively. Whether there was a partition or not, it can be effectively adjudicated, provided an opportunity is provided to both the parties by the trial Court. If we accept the arguments of the learned counsel for the respondents/plaintiffs, when the plaintiffs are seeking permission to produce additional documents, they are intending to further prove that there was no partition. Similarly, when the appellants are relying upon the additional documents to show the earlier partition, we are of the opinion that since both the parties have filed applications seeking production of additional documents to prove their respective contentions, an opportunity shall be given to them to lead further evidence. If further evidence is let in, the Court will have an advantage of appreciating the case properly in order to find out whether there was a prior partition or not. 15. In the result, the appeal is disposed of. 16. The applications filed by both the parties to lead further evidence by producing additional documents are allowed. 17. If further evidence is let in, the Court will have an advantage of appreciating the case properly in order to find out whether there was a prior partition or not. 15. In the result, the appeal is disposed of. 16. The applications filed by both the parties to lead further evidence by producing additional documents are allowed. 17. In view of allowing of applications, the judgment and decree in O.S. No. 54/2004, on the file of Civil Judge (Sr. Dn.), Bailhongal, dated 23.11.2009is set aside and the matter is remanded to the trial Court for fresh consideration in accordance with law. 18. The parties are at liberty to produce the original documents before the trial Court and lead further evidence. Along with the LCR, the documents, if filed by the parties, shall also to be transmitted to the trial Court. 19. All the parties shall appear before the Court below on 21.10.2013 and the Court need not issue fresh notice to the parties. They shall appear on that day and within six months thereafter, the case shall be disposed of on merits.