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2013 DIGILAW 217 (KAR)

Kedari Mashnu Gurav v. Pandurang Mashnu Gurav

2013-02-21

A.N.VENUGOPALA GOWDA

body2013
Judgment Defendants 2 and 3 in O.S.100/1991 on the file of the Principal Civil Judge (Jr.Dn.,), Khanapur, have filed this second appeal questioning the Judgment and decree passed by the learned Trial Judge directing partition and separate possession of the properties described under schedules B and C of the plaint. R.A.20/2008 filed in the Court of the Civil Judge (Sr.Dn.,) having been dismissed, this second appeal has been filed. 2. For convenience, the parties will be referred to by their ranks in the suit. 3. Plaintiff's case in brief is that, along with defendants 1 to 3, there was a joint family and he has got ¼th share in the properties described in schedules A, B and C of the plaint; that he is innocent and illiterate person and taking advantage of his sober nature, defendants 1 to 3 colluding with each other got managed to enter their names in the revenue records and despite the request made to allot his share, defendants refused to give the share. Hence, suit to pass decree of partition, separate possession and consequential reliefs was instituted. 4. Defendants 1 to 3 filed joint written statement and denied the claim of the plaintiff. They contended that there was already a partition of the ancestral properties and the plaintiff is in possession of half portion of the lands and that defendant No.1 sold the property by executing a registered sale deed dated 7.10.1987. They contended that there is suppression of facts by the plaintiff and sought dismissal of the suit. 5. Defendant No.5 filed separate written statement and contended that, defendants 2 and 3 were in actual possession of the land in R.S.Nos.16/A and 16/B of Khanapur and after verification of the records, the said properties were purchased for valuable consideration under a registered sale deed dated 8.8.1991 and the transaction is binding on the plaintiff, as the sale was for legal necessity. It was submitted that in case the suit is decreed, the share of defendants 2 and 3 may be awarded in favour of the defendants 4 and 5. 6. Based on the pleadings, the learned Trial Judge raised 7 issues and an additional issue. Plaintiff got himself examined as PW.1 and marked Exs.P1 to P26. Two witnesses deposed for the defendants, through whom Exs.D1 to D14 were marked. 6. Based on the pleadings, the learned Trial Judge raised 7 issues and an additional issue. Plaintiff got himself examined as PW.1 and marked Exs.P1 to P26. Two witnesses deposed for the defendants, through whom Exs.D1 to D14 were marked. The trial Judge answered issues 1 to 3 in the affirmative, issues 4 to 6 and additional issue No.1 in the negative by a judgment dated 15.12.1998 and decreed the suit, entitling the plaintiff for partition and separate possession of ¼th share in the properties described under Schedules B and C of the plaint. 7. Defendants 1 to 3 filed Regular Appeal and assailed the Judgment and decree passed by the Trial Court. On 30.9.2004, the appellants filed I.A.2 under O.6 R.17 r/w S.151 of CPC, seeking permission to amend their written statement, as proposed in the schedule thereunder. Plaintiff filed on 30.5.2005, statement of objections to I.A.2. On 22.1.2007, it was ordered that I.A.2 to be heard along with the main appeal. By a judgment dated 22.3.2010, the appeal having been found to be devoid of merit was dismissed. 8. Sri Dinesh M Kulkarni, learned Advocate by taking me through the record of the suit and the first appeal, pointed out that, I.A.2 filed by the appellants seeking permission to amend the written statement was not considered and decided by the lower appellate Court while deciding the appeal. Learned counsel contended that non-consideration and disposal of I.A.2 by the lower appellate Court and dismissal of appeal on 22.3.2010 is wholly erroneous and illegal. He submitted that the judgment passed by the lower appellate Court dismissing the appeal does not even make a mention about filing of I.A.2 by the appellants and I.A.2 has not been considered and decided. 9. Sri B.M. Patil, learned Advocate, on the other hand submitted that the appellants cannot find fault with the lower appellate Court, since they failed to bring to the notice of the Court the pendency of I.A.2. He submitted that, appellants having kept quiet, after the judgment was pronounced dismissing the appeal, have now taken advantage of the non-disposal of I.A.2, only to protract the case, cause harassment to the respondent. 10. This appeal was admitted to consider the following substantial question of law; Whether the lower appellate court was justified in deciding the appeal, without deciding IA-2 for amendment of the written statement file d by the appellants? 11. 10. This appeal was admitted to consider the following substantial question of law; Whether the lower appellate court was justified in deciding the appeal, without deciding IA-2 for amendment of the written statement file d by the appellants? 11. Record of the appeal filed in the lower appellate Court shows that, I.A.2 filed by the appellants was opposed by the respondent and the lower appellate Court ordered to take up I.A.2 along with the main appeal. I.A.2 had remained pending throughout as no order was passed on it by the lower appellate Court. There is no dispute that, I.A.2 has remained un-disposed of by the lower appellate Court. The Judgment and decree passed by the lower appellate Court is vitiated on account of non-consideration and disposal of I.A.2 filed in the appeal. 12. In the circumstances, without expressing any opinion on the merits of the claim made in I.A.2, by the appellants, I am of the view that, I.A.2 ought to have been considered and decided by lower appellate Court, before deciding the appeal. Non consideration and disposal of I.A.2 has led to miscarriage of justice and hence, the judgment and decree passed by the lower appellate Court being vitiated, cannot be upheld. In the result, the appeal is allowed in part and the Judgment and decree dated 22.3.2010 passed in R.A.20/2008 by the Senior Civil Judge, Khanapur, is set aside and the case is remanded to the Senior Civil Judge, Khanapur, for deciding I.A.2 and the appeal, in accordance with law. Since the suit for partition was filed on 16.9.1991, keeping in view the provisions under the Karnataka case flow management Rules, 2005, the lower appellate Court is directed to decide the appeal expeditiously and before 31.09.2013. The parties are directed to appear in the Court of the Senior Civil Judge, Khanapur, on 11.3.2013, without waiting for hearing notice of appeal to be issued and receive orders.