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2019 DIGILAW 1249 (KAR)

Manjunath v. Hanumanthappa

2019-06-13

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The plaintiff being aggrieved by the judgment and decree dated 17.4.2013 passed by the Fast Track Court, Koppal, in R.A.No.81/2011 and the judgment and decree passed by the Senior Civil Judge at Koppal, in O.S.No.39/2003 dated 30/7/2011 has filed this second appeal. 2. The status of the parties are referred to as per their ranking before the trial Court. 3. The plaintiff-Manjunath S/o Hanumanthappa Meti had filed O.S.No.39/2003 seeking relief of partition and separate possession of his 1/2 share in 1/3rd share of defendant No.1 in the suit schedule properties. 4. It is the case of the plaintiff that he is the son of defendant No.1 and as he being the minor is represented by the mother-guardian Huligewwa. He has further stated that one Sanna Yallappa is the prepositor of the family and he had two sisters Devamma-defendant No.3, Lakshmawwa-defendant No.4 and a son Hanumanthappa defendant No.1. Huligewwa is the wife of defendant No.1 and plaintiff is the son of defendant No.1. Further Huligewwas is the daughter of Devamma-defendant No.3. Defendant No.2 is said to have purchased item No.1 of the suit schedule land in Sy.No.4/EE, measuring 3 acres 20 guntas in collusion with defendant No.1 through a registered sale deed dated 23/5/2002. 5. He has further stated that the marriage of Huligewwa and defendant No.1 took place about 20 years back and the mother of the plaintiff and defendant No.1 were not in good terms. She had filed a criminal miscellaneous case No.126/06 wherein the J.M.F.C. Court held that the mother of the plaintiff is the legally wedded wife of defendant No.1. Further, the plaintiff and defendant Nos.1, 2 and 4 are the coparceners and members of the family of the deceased Sanna Yallappa and the suit properties are the ancestral joint family properties. Defendant No.1 was working as a driver and had addicted to bad habits like drinking and gambling, hence, he was not in cordial relationship with the plaintiff's mother and defendant No.1 has deserted the plaintiff's mother. Defendant No.1 colluding with defendant No.2 created a registered sale deed. Hence, the said sale deed does not bind the plaintiff. 6. In pursuance of the suit summons, defendant No.2 appeared before the trial Court and filed written statement denying the averments of the plaint. Defendant No.1 colluding with defendant No.2 created a registered sale deed. Hence, the said sale deed does not bind the plaintiff. 6. In pursuance of the suit summons, defendant No.2 appeared before the trial Court and filed written statement denying the averments of the plaint. He further contended that defendant No.2 is the bonafide purchaser of the suit land in Sy.No.4/EE, measuring 3 acres 20 guntas for valuable consideration of Rs.88,000/- from defendant No.1 through a registered sale deed dated 23/5/2002. Since from the date of registration, the 2nd defendant has been in lawful possession and enjoyment of the said property. Defendant No.1 had sold the said property for his legal and family necessity, to meet the hand loan and other expenses. Further, plaintiff is a stranger to the suit properties and also defendant No.1. Defendant No.1 filed written statement denying the plaint averments and further contended that the plaintiff is not his son and he had not married the plaintiff's mother-Huligewwa nor the plaintiff is born to him. Further, he contended that for legal necessity he has sold the land in Survey No.4/EE in favour of 2nd defendant to meet the hand loan and other expenses. He further contended that one Iramma is the absolute owner of the said land and she had purchased the same form the earnings of their property. Hence, the property is not an ancestral property of defendant No.1. He has also stated that the plaintiff is stranger to the suit properties and to defendant No.1. Defendant No.1 had married to one Savitri and lead his matrimonial life and there is a son by name Manjunath who is aged about 3 years. He has further stated that plaintiff is born to one Ningappa Kumbar and that plaintiff's mother Huligewwa has been staying with Ninappa Kumbar. This fact had been admitted when 1st defendant had filed a complaint in the Rural Police Station, Koppal. 7. Defendant Nos.1 and 2 have filed additional joint written statement contending that the plaintiff's mother Huligewwa is not the legally wedded wife of defendant No.1 nor she is the kept mistress. He has further stated that the order passed in Crl.Misc.No.126/2006 for the relief of maintenance filed by the plaintiff's mother is not a conclusive proof to prove the relationship. Defendant Nos.1 and 2 have filed additional joint written statement contending that the plaintiff's mother Huligewwa is not the legally wedded wife of defendant No.1 nor she is the kept mistress. He has further stated that the order passed in Crl.Misc.No.126/2006 for the relief of maintenance filed by the plaintiff's mother is not a conclusive proof to prove the relationship. It is further stated during the pendency of the said suit, the plaintiff had filed another suit in O.S.No.233/2011 under Hindu Adoptions & Maintenance Act, claiming maintenance. In the said suit, the plaintiff contended that his mother is the legally wedded wife of first defendant and their marriage was performed on 15/2/1989 at Irkalgada. 8. On the basis of pleadings of the parties, the trial Court framed following issues and additional issues:- (1) "1. Whether the plaintiff proves that the suit properties are the ancestral and joint family properties of plaintiff and defendant No:1 and they are in joint possession of the same? (2) Whether the plaintiff proves that the defendant No:1 & 2 colluding with each other and created a registered sale deed dated:23/05/2002 in favour of defendant No:2 illegally? (3) Whether the plaintiff proves that he is entitled for half share in the suit properties for separate Possession by metes and bounds? (4) Whether the defendant No:2 proves that the plaintiff totally stranger and not entitled for any share in the suit properties and that the mother of the plaintiff is not the legally wedded wife of defendant No:1? (5) What order or relief the parties are entitled? Additional Issues dated: 31/10/2009 (1) Whether defendant No:1 & 2 prove that defendant No:1 had sold the suit land in Sy.No:4/EE measuring 03 acres 20 guntas in favour of defendant No:2 for his legal necessity? (2) Whether the 1st defendant proves that the land In Sy.No:4/EE measuring 03 acres 20 guntas is not the ancestral property of the 1st defendant? (3) Whether the 1st defendant proves that the suit Item No:2 property in Sy.No:343/A-P-1 is not available for partition? Additional Issues dated 3/3/2010 (4) Whether the plaintiff proves that his mother Huligemma is the legally wedded wife of 1st defendant and the plaintiff is her son? 9. In order to prove the issues, the plaintiff himself got examined as PW-1 and examined his mother and 4 witnesses and got marked 24 documents. Additional Issues dated 3/3/2010 (4) Whether the plaintiff proves that his mother Huligemma is the legally wedded wife of 1st defendant and the plaintiff is her son? 9. In order to prove the issues, the plaintiff himself got examined as PW-1 and examined his mother and 4 witnesses and got marked 24 documents. Defendant No.1 got examined as DW.1 and 4th defendant is examined as DW-2, third defendant as DW-5. They also examined witnesses DWs.3, 4, 6 and 7 and got marked 26 documents as Exs.D1 to 26. 10. The trial Court after hearing both the parties, answered the issue Nos.1 to 3 and additional issue Nos.1,3 and 4 in the negative and issue No.4 and additional issue No.2 in the affirmative. Consequently, the suit of the plaintiff was dismissed. 11. The plaintiff being aggrieved by the said judgment and decree filed R.A.No.81/2011 and defendant No.3 Devamma also filed R.A.No.91/2011 being aggrieved by the findings recorded by the trial Court. Both the said appeals were filed on the file of the Fast Track Court, Koppal. The Appellate Court has secured the learned counsel for the respondents. Heard the learned counsel for the parties and passed the impugned judgment on 17/4/2013 whereby both RA Nos.81/11 and 91/11 were dismissed. It is also seen that the second defendant had filed cross objection in RA No.81/2011 which was allowed and issue No.2 was answered in the affirmative. 12. Being aggrieved the impugned judgment of the First Appellate Court, the plaintiff has filed the present second appeal. 13. After hearing both the parties this appeal is admitted to consider the following substantial questions of law:- "1) Whether the Lower Appellate Court was right in not considering the IA No.V filed under Order XLI Rule 3A(2) of CPC and disposed of the appeal without giving an opportunity of hearing to the appellant? (2) Whether the Lower Appellate Court was right in without considering IA No. II filed under Order XLI Rule 27 CPC disposed of the appeal?" 14. Heard the arguments of the learned counsel for the appellant and the respondents. 15. (2) Whether the Lower Appellate Court was right in without considering IA No. II filed under Order XLI Rule 27 CPC disposed of the appeal?" 14. Heard the arguments of the learned counsel for the appellant and the respondents. 15. The appellant herein had filed R.A. No.81/2011 before the First Appellate Court, along with IA No.V under order XLI Rule 3-A(2) CPC and under Section 5 of the Limitation Act to condone the delay in filing the said appeal and also another application IA No.II under Order XLI Rule 27 of CPC seeking permission for production of additional documents. However, the First Appellate Court has not at all considered these two applications and disposed of the appeals and the cross objection without passing any orders on these applications. It is the duty of the First Appellate Court to hear the application filed under order XLI Rule 3-A(2) CPC & under Section 5 of the Limitation Act for condonation of delay in filing the said appeal and only after allowing the said application, the First Appellate Court would get jurisdiction to hear the appeal on merits. The First Appellate Court is not justified in proceeding to dispose of the appeals and cross objection without hearing the application for condonation of delay and unless the delay is condoned, the appeal would not have been heard on merits. Therefore, the procedural illegality is committed by the First Appellate Court. 16. The First Appellate Court has also not considered the application IA No.II filed by the appellant under Order XLI Rule 27 of CPC seeking permission for production of additional documents. The said application ought to have been heard along with the appeal and recorded finding there on. Absolutely, there is no reference to the said application in the body of the judgment of the First Appellate Court. Therefore, it is made out that the application filed by the appellant under Section 5 of the Limitation Act and the other application filed under Order XLI Rule 27 CPC were not at all considered by the First Appellate Court while disposing of the appeals and cross objection on merits. Therefore, it is made out that the application filed by the appellant under Section 5 of the Limitation Act and the other application filed under Order XLI Rule 27 CPC were not at all considered by the First Appellate Court while disposing of the appeals and cross objection on merits. Therefore, both the substantial questions of law are answered in the negative holding that the First Appellate Court is not justified in not considering the interim application filed for condonation of delay and in the absence of allowing the said application, disposing of the appeal on merits. Further, the First Appellate Court is also not justified in not considering the application filed under Order XLI Rule 27 of CPC. Therefore, the impugned judgment and decree passed by the First Appellate Court is liable to be set aside and the matter needs to be remanded to the First Appellate Court for disposal of both the appeals and cross objection in accordance with law after hearing the above stated applications. The Lower Appellate Court has to hear the delay condonation application at the first instance and only if the said application is allowed, the appeals have to be heard on merits. With these observations, this Court proceed to pass the following: ORDER The regular second appeal is allowed. The judgment and decree dated 17.4.2013 passed in RA Nos.81/2011 and 91/201 by the Fast Track Court, Koppal, is hereby set aside. Matter is remanded to the First Appellate Court. The First Appellate Court is directed to hear the interim application filed under Order 41 Rule 3A(2) of CPC R/W S. 5 of Limitation Act at the first instance and incase the said application is allowed, shall hear both the appeals and cross objection and dispose of the same in accordance with law preferably within a period of six months from the date of receipt of copy of this Judgment. All the contentions are kept open. Pending interim applications does not survive for consideration and accordingly disposed of.