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2015 DIGILAW 926 (KAR)

Giramalla v. Mahadevi

2015-08-14

B.VEERAPPA

body2015
JUDGMENT : By consent of both the learned Counsel for the parties, the matter is taken up for final hearing. 2. This appeal is filed by defendant No.7 against the judgment and decree dated 12.09.2014 in R.A.No.22/2011 on the file of the learned Senior Civil Judge and JMFC, Raibag, confirming the judgment and decree dated 11.08.2001 made in O.S.No.98/2000, on the file of the Addl. Civil Judge & JMFC, Raibag, decreeing the suit for partition and separate possession. 3. Respondents 1 to 3 filed the suit for partition and declaration to declare that the sale deed dated 20.05.1999 in respect of R.S.No.647/2B executed by defendants 1 and 2 in favour of defendant7 is void ab initio and not binding on the plaintiffs and they are entitled to half share and separate possession in respect of A-schedule properties and alternatively, for mesne profits, contending that the suit schedule properties originally owned and possessed by the propositus Sannappa, who left behind 4 sons, namely, Neelappa, Balappa, Ramu and Maruti. Neelappa married to one Parvati mother of defendants No.1 to 4. She died on 19.8.1977 and after her demise he got a 2nd marriage with plaintiff1. Out of the said wedlock plaintiffs 2 and 3 were born. Plaintiff No.1 and Neelappa lived as husband and his wife till his death on 2.6.1993. The Plaintiff No.1 is receiving family pension initially at Raibag and now at Belgaum. The defendants 1 and 2 got their names entered in the revenue documents in M.E.No.6509 suppressing the true facts and in collusion with the village accountant. Therefore, plaintiffs preferred revenue proceedings before the Deputy Commissioner, Belgaum, in No.RB/RTA/89/96-97and the said M.E.No.6504 came to be set aside by the Deputy Commissioner by an order dated 30/09/1977. Further, defendants 1 and 2 were constrained to file suit for declaration and permanent injunction in O.S.No.39/1997 before the Munsiff Court, Raibag, seeking the relief that defendants 1 and 2 alone are the heirs of Neelappa. The same came to be dismissed and against the said judgment and decree the defendants filed R.A.No.286/2008 on the file of Senior Civil Judge, Raibag and the same came to be disposed of confirming the judgment and decree passed in O.S.39/1997. Against the said judgment and decree of the courts below the defendants 1 and 2 filed R.S.A.5792/2010 which is pending for adjudication before this Court, etc. Therefore, they filed the suit. 4. Against the said judgment and decree of the courts below the defendants 1 and 2 filed R.S.A.5792/2010 which is pending for adjudication before this Court, etc. Therefore, they filed the suit. 4. Defendants 1 to 4 filed written statement and contended that deceased Neelappa never married to plaintiff No.1 and he was not capable of performing marital obligation and get issues at his advanced age. The plaintiffs are no where concerned with the family of deceased Neelappa and defendants 1 and 2 are in exclusive possession of suit schedule property. The suit schedule properties being the ancestral properties of defendants and deceased Neelappa and their names were mutated in mutation register after death of Neelappa. Though the plaintiffs contended there was partition between defendants 1, 2, 5 and 6 they failed to seek reopening partition. The plaintiffs have not brought the lands in R.S.Nos.468/11 and 468/06 situated at Raibag in this suit. The plaintiff has not sought for further relief for possession and mere declaration suit is not maintainable, etc. 5. The defendant No.7 also filed written statement and contended that Neelappa never married plaintiff No.1 and plaintiff No.2 and 3 are not their children. The suit property is ancestral property of Neelappa and after his death defendants 1 and 2 have succeeded to the property of their father as per Varsa Varadi and the application to revenue authority. Defendants 1 and 2 have sold the property R.S.No.647/2B measuring 2 acres 19 guntas in favour of 7th defendant under registered sale deed dated 20.05.1999 for their legal necessity and to discharge their ancestral debt and for the family developments. From the date of purchase the defendant No.7 is in peaceful possession and enjoyment of the suit properties without any interruption and defendant No.7 has developed the property by investing huge amount, etc. Therefore, he sought for dismissal of the suit. 6. Based on the pleadings, the trial court framed the following issues: 1. Does the plaintiffs prove that, they are legally wedded wife and children of deceased Neelappa? 2. Does the plaintiffs further prove that the suit schedule properties are ancestral properties of plaintiffs and defendants? 3. Does the plaintiffs further prove that, the sale deed dated 20.05.1999 is not binding and void abinitio? 4. Does the defendant No.7 proves that, he is bonafide purchaser of property? 5. 2. Does the plaintiffs further prove that the suit schedule properties are ancestral properties of plaintiffs and defendants? 3. Does the plaintiffs further prove that, the sale deed dated 20.05.1999 is not binding and void abinitio? 4. Does the defendant No.7 proves that, he is bonafide purchaser of property? 5. Does the defendants prove that, the plaintiffs suit is bad for non-inclusion of all properties? 6. Does the defendants proves that, the court fee paid by the plaintiff is not proper? 7. Does the defendants prove that, the court is not having pecuniary jurisdiction to try this suit? 8. Does the plaintiffs are entitled for reliefs, as sought? 9. What order or Decree? 7. In order to establish her case, the plaintiff No.1 examined herself as PW.1 and witnesses as PWs.2 and 3 and marked the documents Ex.P.1 to P.30. The defendant No.1 examined himself as DW.1 and witnesses as DW.2 to 4 and got marked document as Ex.D.1. 8. Considering the entire material on record, the trial court held that the plaintiffs have proved that plaintiff No.1 is the legally wedded wife and plaintiffs No.2 and 3 are children of deceased Neelappa and suit schedule properties are the ancestral joint family properties of defendants and plaintiffs and the alleged sale deed dated 20.5.1999 is not binding and is void ab initio. The defendant-7 failed to prove that he is the bonafide purchaser and the defendants failed to prove that the suit filed by the plaintiffs is bad for non joinder of parties and court fee paid is not proper. Accordingly, suit came to be decreed. 9. Against the said judgment and decree the 7th defendant/appellant filed R.A.No.22/2011. During the pendency of the appeal, the appellants filed application under Order 41 Rule 27 of Code of Civil Procedure to produce the documents as per the list, contending that by oversight and mistake the documents produced as per the list has not been produced in the lower court and if the documents produced are allowed no harm or prejudice would be caused to the respondents and on the contrary, if I.A. is not allowed then appellants would be put to great hardship, etc. 10. The lower appellate court without considering the said application and without framing any issue, has proceeded to pass the impugned judgment and decree order and thereby dismissed the appeal on merits. 11. 10. The lower appellate court without considering the said application and without framing any issue, has proceeded to pass the impugned judgment and decree order and thereby dismissed the appeal on merits. 11. Against the said judgment and decree, the present appeal is filed by appellants. 12. I have heard the learned Counsel for the parties to the lis. 13. Sri. Dinesh M. Kulkarni, learned Counsel for appellants has contended that during the pendency of the appeal before the lower appellate court, the appellants filed an application under Order 41 Rule 27 read with section 151 of Code of Civil Procedure on 20.2.2014 along with the list of documents as additional evidence and the lower appellate court without considering the said application has proceeded to pass impugned judgment and decree and dismissed the appeal and on that ground alone the impugned judgment and decree is liable to be set aside 14. In support of his contentions, he also relied upon the dictum of this Court in the case of Kedari Mashnu Gurav and another Vs. Sri. Pandurang Mashnu Gurav and others, in RSA.No.5496/2010 disposed of on 21.02.2013, to the effect that non-consideration and disposal disposal of I.A.2 will lead to miscarriage of justice and hence the judgment and decree passed by the lower appellate court being vitiated cannot be upheld. Accordingly, he sought to set aside the judgment and decree of the lower appellate court. 15. Per contra, Sri. Shriharsh A. Neelopant, learned Counsel for respondents 1 to 3, sought to justify the impugned judgment and decree. But he has not disputed the fact that the lower appellate court has not considered the said I.A.2 filed under Order 41 Rule 27 of Code of Civil Procedure, before disposal of the main appeal on merits. 16. While admitting the matter, this Court has framed the following substantial question of law to consider the appeal: “Whether the lower appellate court was justified in deciding the appeal on merits, without deciding the I.A.2 under Order 41 Rule 27 Civil Procedure Code filed by the appellants (Paras 16 & 17 interchanged vide C.O. dated 23.9.15.)?” 17. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record Paras 16 & 17 interchanged vide C.O. dated 23.9.15.). 18. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record Paras 16 & 17 interchanged vide C.O. dated 23.9.15.). 18. It is not in dispute that the suit filed by the plaintiff for partition and declaration to declare that the sale deed dated 20.05.1999 executed by defendants 1 and 2 in favour of defendant7 is not binding on the plaintiffs, etc. Though the same is resisted by defendants by filing written statement and on considering both oral and documentary evidence on record, the trial court decreed the suit. Against the said judgment and decree of the court below, the appeal is filed in R.A.No.22/2011 before the lower appellate court. It is also not in dispute that during the pendency of the appeal before the lower appellate court, the present appellants filed an application under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure on 20.02.2014 for production of additional documents in support of their case. Admittedly, the lower appellate court has not considered the said application and proceeded to dispose of the appeal itself on merits. The scrutiny of entire lower appellate court records disclose that it has not considered and pass orders on the application I.A.2. The said fact of non-consideration if I.A.2 filed under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure by the lower appellate court has not been disputed by the learned Counsel for the respondents fairly. Therefore, it clearly depicts that the lower appellate court has not decided the application I.A.2 and therefore, the judgment and decree passed by the lower appellate court is vitiated on account of non-consideration of I.A.2. It is well settled law that application under Order 41 Rule 27 of Code of Civil Procedure is to be considered at the time of hearing of the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. It is well settled law that application under Order 41 Rule 27 of Code of Civil Procedure is to be considered at the time of hearing of the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact, whether the applicant had an opportunity for adducing such evidence at the earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. 19. In the present case, without considering the application I.A.2 filed under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, the appellate court proceeded with the merits of the case. Before disposing of the appeal on merits, it is the duty of the appellate court to consider the application under Order 41 Rule 27 of Code of Civil Procedure. It should be considered at the first instance at the time of disposal of the appeal on merits. In the present case the appellate court has not considered before deciding the appeal on merits or at the time of disposing of the appeal on merits and the same is contrary to the dictum of the Hon’ble Supreme Court in the case of Jatinder Singh & Anr. Vs. Mehar Singh & Ors with Balbir Singh & Anr., Vs. Jatinder Singh & Anr. Reported in AIR 2009 SC 354 , at paragraphs 4 and 5 held as follows: “4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. Reported in AIR 2009 SC 354 , at paragraphs 4 and 5 held as follows: “4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law. 5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs.” 20. In view of the aforesaid reasons the substantial question of law is answered in the negative, holding that the appellate court is not justified in allowing the appeal without considering the application I.A.2 under Order 41 Rule 27 of Code of Civil Procedure by the appellants. In view of the same the impugned judgment and decree of the appellate-Court (Corrected vide Court Order dated 23.09.2015.) is vitiated and cannot be sustained. 21. In the result, the appeal is allowed in part. The impugned judgment and decree of the lower appellate court dated 12.09.2014 made in R.A.No.22/11 on the file of the learned Senior Civil Judge & JMFC, Raibag, is set aside and the matter is remanded to the lower appellate court for reconsideration and to pass orders on I.A.2 filed under Order 41 Rule 27 of Code of Civil Procedure and proceed with the matter in accordance with law. Since the suit is for partition and declaration was filed as long back as on 18.5.2000, it is appropriate to direct both the parties to appear before the lower appellate court on 09.09.2015 and the lower appellate court is directed to decide the appeal after giving sufficient opportunity to both parties and pass judgment and decree in accordance with law, as expeditiously. Ordered accordingly.