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2019 DIGILAW 1463 (KAR)

B. S. Gurupadaswamy v. Kamalamma

2019-06-27

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : 1. Though the appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. This appeal is preferred by the appellants-defendants assailing the judgment and decree dated 23.09.2017, passed in O.S.No.18/2015 by the II Additional Senior Civil Judge and JMFC, Mandya (hereinafter referred to as Trial Court'). 3. We have heard the arguments of learned counsel for the appellants/defendants and the respondents/plaintiffs. 4. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court. 5. The respondents-plaintiffs filed the suit against the appellants-defendants for partition and separate possession of their share in the suit schedule properties. It was contended by the plaintiffs before trial Court that Sri Patel Madaiah and Smt. Basamma @ Madamma had two sons, namely Sri Patel Shivananjaiah and Sri Madappa. Said Sri Patel Shivananjaiah died about fifteen years ago and Sri Madappa had also died in the year 1969. Their mother Smt. Basamma had also died. 6. The parties are the descendants of the propositus of Sri Patel Madaiah, they are the members of an undivided Hindu joint family. The suit schedule properties are the ancestral joint family properties. Defendant No.1, being the eldest member of the family is the Kartha/Manager of the family, used to manage the affairs of the family and had no independent sources of income and from the income of the joint family, he had purchased the properties. 7. It is further case of plaintiff that a portion of the joint family properties was acquired for public purpose. The first defendant-claimant is alleged to have claimed the entire compensation of Rs. 10,00,000/- which is detrimental to the interest of other members. The plaintiffs also got issued legal notice to the defendants on 23.02.2013 by demanding partition, but he did not respond. A panchayath was also held on 09.02.2015, but the dispute was not settled. Hence, they filed suit before the trial Court. 8. The first defendant appeared through counsel and filed written statement contending that Sri Patel Madaiah had died on 13.08.1915. Smt. Basamma, wife of Sri Patel Madaiah had died on 23.02.1946. Sri Madappa had died on 20.02.1974 and Sri Shivananjaiah also died on 16.04.1988. Item Nos.23 and 24 of the suit schedule properties were the only ancestral properties which had fallen to the share of Sri Madappa. Smt. Basamma, wife of Sri Patel Madaiah had died on 23.02.1946. Sri Madappa had died on 20.02.1974 and Sri Shivananjaiah also died on 16.04.1988. Item Nos.23 and 24 of the suit schedule properties were the only ancestral properties which had fallen to the share of Sri Madappa. The remaining properties were all acquired by the father of the first defendant out of his independent income. The income from the ancestral properties was too meager and there were no surplus income and he has also given the list of purchased properties and prayed for dismissing the suit. 9. Based upon the rival pleadings, the trial Court framed the following issues: "1. Whether the plaintiffs prove that they are the members of an undivided Hindu Joint family and the suit schedule properties are the joint family properties? 2. Whether the defendants prove that the suit schedule properties except at item Nos.23 and 24 are self-acquisitions of their father? 3. Whether the plaintiffs prove that they are entitled to a share as claimed? 4. What order or decree?" 10. To prove the case of plaintiffs, plaintiff No.1 was examined as PW.1 and they also examined one more witness as PW.2 and got marked 28 documents as per Exs.P1 to 28 and after considering the records, the trial Court answered issue No.1 in favour of the plaintiffs; issue No.2 against the defendants and issue No.3 in favour of plaintiffs and decreed the suit by granting a share in the suit schedule properties, which is challenged by the defendants-appellants in this appeal. 11. Learned counsel for the appellants strenuously contended that the trial Court had not at all given proper opportunity to the appellants for cross-examining the plaintiffs and plaintiff's witness and also no proper opportunity was given to the defendants to lead evidence and even though the counsel for the defendants filed an application for recalling plaintiffs for cross-examination, instead of passing the orders on interlocutory application, the trial Court hurriedly passed the judgment and decreed the suit without taking into consideration the written statement filed by the defendants. Therefore, he prayed for setting aside the judgment and decree of the trial Court and for remanding the matter for providing an opportunity to the defendants to cross-examine the plaintiff's witness and also to lead defendant's side evidence. 12. Therefore, he prayed for setting aside the judgment and decree of the trial Court and for remanding the matter for providing an opportunity to the defendants to cross-examine the plaintiff's witness and also to lead defendant's side evidence. 12. Per contra, learned counsel appearing for the respondents-plaintiffs contended that the trial Court gave sufficient opportunity to cross-examine PW.1, but the defendants had not chosen to cross-examine the witnesses. Though opportunity was granted to the defendants to adduce their evidence, they have not chosen to lead their evidence. Therefore, they are stopped from seeking an opportunity before this Court. The trial Court has rightly decreed the suit and hence, prayed for dismissing the appeal. 13. Upon hearing the arguments of both the learned counsel for the parties and on perusal of the judgment and decree as well as the copy of the order sheet of the trial Court, which is produced by learned counsel for the appellants, the following points would arise for our consideration: (1) Whether the judgment and decree of the trial Court call for any interference? (2) What order? 14. On perusal of the order sheet of the trial Court, it is noted that on 07.06.2017, the plaintiffs filed the affidavit in lieu of evidence and got marked 27 documents and deferred the case for cross-examination. Later, on 22.06.2017, once again the case was adjourned to 13.07.2017 for cross-examination. Again on 13.07.2017, the first defendant filed additional written statement, the same was allowed by the trial Court and adjourned the case for framing additional issues. Later, on 27.07.2017, the trial Court observed that no additional issues were required to be framed. However, PW.1 was further examined and one more document was got marked as Ex.P28. Then the case was posted for cross-examination of PW.1 to 19.08.2017. On 19.08.2017, the defendant's counsel had filed an interlocutory application seeking an adjournment under Order XVII Rule 1 of Code of Civil Procedure. An adjournment was granted by posting the case to 05.09.2017. Again on 05.09.2017, learned counsel for the defendants requested to adjourn the case for cross-examination. The prayer of defendant's counsel for an adjournment came to be rejected and the trial Court also observed, that there was no further evidence on the side of the plaintiffs and the case was adjourned to 12.09.2017 for the purpose of recording defendants' side evidence. Again on 05.09.2017, learned counsel for the defendants requested to adjourn the case for cross-examination. The prayer of defendant's counsel for an adjournment came to be rejected and the trial Court also observed, that there was no further evidence on the side of the plaintiffs and the case was adjourned to 12.09.2017 for the purpose of recording defendants' side evidence. On 12.09.2017, one more adjournment was granted till 16.09.2017 and on 16.09.2017, the defendants remained absent. However, the trial Court gave one more adjournment by imposing cost of Rs.50/- and the matter was adjourned to 18.09.2017. Again on 18.09.2017, the advocate for the plaintiffs filed two applications, one under Section 151 of Code of Civil Procedure and another under Order XVI Rules 1 and 2 of Code of Civil Procedure by seeking permission to lead further evidence of the plaintiffs which came to be allowed. On behalf of the plaintiffs, one more witness was examined as PW.2 and later the case was adjourned from 18.09.2017 to 20.09.2017. Then, on 20.09.2017, the witness for the plaintiffs was present, however, the defendants' side was not present in the morning at 11.45 a.m., and the cross-examination of PW.2 was taken as nil and plaintiff's side evidence was closed and adjourned the case to very next day, i.e., on 21.09.2017. On 21.09.2017, the advocate for the defendant sought adjournment which came to be rejected and the matter was posted for arguments on 22.09.2017. The order sheet of the trial Court dated 22.09.2017 reveals "Heard. D1 present. Call on 23.09.2017". Then on 23.09.2017, the counsel for the defendants filed an interlocutory application under Section 151 of Code of Civil Procedure and another interlocutory application under order XVIII Rule 17 of CPC for recalling plaintiffs' witnesses for the purpose of cross-examination. The trial Court passed the order as "heard and adjourned for objections" but the trial Court instead of passing orders on the applications filed by the defendants, pronounced the judgment by decreeing the suit. 15. Upon verifying the order sheet of the trial Court it reveals, no doubt on the earlier occasions, the trial Court had given opportunity to the defendants for cross-examination but later, the case was adjourned. Even though the plaintiffs side evidence was closed, the plaintiffs themselves re-opened the case on 20.09.2017 and examined one more witness as PW.2. 15. Upon verifying the order sheet of the trial Court it reveals, no doubt on the earlier occasions, the trial Court had given opportunity to the defendants for cross-examination but later, the case was adjourned. Even though the plaintiffs side evidence was closed, the plaintiffs themselves re-opened the case on 20.09.2017 and examined one more witness as PW.2. Thereafter, the case was adjourned and proceedings were held on day-to-day basis and within three days, the trial Court decreed the suit without passing orders on interlocutory application filed by the defendants for recalling the plaintiffs' witnesses for cross-examination. Even order-sheet dated 22.09.2017 reveals that the case was heard and adjourned to 23.09.2017 for filing objections which shows only the word, "call on 23.09.2017." But the case was not posted either for arguments of the defendants or for pronouncing the judgment, when the matter was not posted for pronouncing the judgment and referred only as call on 23.09.2017 and when the defendants' application was pending for re-opening and re-calling the order for the purpose of cross-examination of the plaintiffs' witness and to lead evidence, the trial Court ought to have passed orders on interlocutory application either rejecting or to allowing the applications. But, in our view, the trial Court committed an error in pronouncing the judgment, even though the case was not posted for pronouncing the judgment on that day. 16. The approach of the trial Court in taking the matter on a day-to-day basis and concluding the case within three days without giving proper opportunity to the parties is nothing but an instance of not being fair on the part of the trial Court in conducting the proceedings in the Court. In a suit for partition, the plaintiffs are defendants and the defendants are plaintiffs, when the plaintiffs are seeking partition of properties in almost 27 items and defendants claim suit schedule properties belong to their father and their self-acquired properties of their father, when such being the case, the trial Court ought to have allowed the parties to adduce their respective evidence and thereafter proceed to determine the shares. The trial Court has to determine the rights of the parties in accordance with law rather than a mere disposal of the suit, which in the instant case has caused injustice to the parties and led to multiplicity of litigation. 17. The trial Court has to determine the rights of the parties in accordance with law rather than a mere disposal of the suit, which in the instant case has caused injustice to the parties and led to multiplicity of litigation. 17. Therefore, we are of the view that the trial Court has committed an error in concluding the trial and passing judgment and decree without giving proper opportunity to the parties. Therefore, the judgment and decree passed by the trial Court deserves to be set aside and matter requires to be remanded back a for fresh consideration. 18. In the result, the judgment and decree of the trial Court impugned in this appeal is set aside. The matter is remanded to the trial Court for re-consideration from the stage of permitting the defendants to cross-examine P.W.1 and thereafter, to permit the appellants herein to let-in evidence, if any, to hear arguments and to dispose of the suit in accordance with law. 19. Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 29.07.2019 without expecting any separate notices from the said Court. 20. Appeal is disposed off in the aforesaid terms. Parties to bear their respective costs. 21. In view of the disposal of the appeal, I.A. No.2 of 2018 stands disposed.