Karnataka High Court
S. Veeresh S/O Rachanna vs S. Suganna Since Deceased By Lrs Ors on 25 January, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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RFA No.6013 of 2012
C/W RFA No.200087 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.6013 OF 2012 (PAR)
C/W.
REGULAR FIRST APPEAL NO.200087 OF 2023 (PAR)
IN R.F.A. NO.6013 OF 2012
BETWEEN:
S. VEERESH
S/O RACHANNA
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: AROLI, TQ: MANVI,
DIST: RAICHUR - 584 128.
...APPELLANT
Digitally signed (BY SRI SACHIN M. MAHAJAN, ADVOCATE)
by
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
AND:
Location: HIGH
COURT OF 1. S. SUGANNA SINCE DECEASED BY LRS.
KARNATAKA
A. ADEMMA
W/O SUGANNA SINCE DEAD, DELETED
AGE: 70 YEARS, VIDE ORDER OF THE
R/O: AROLI, TQ: MANVI HON'BLE COURT DTD:
DIST: RAICHUR - 584 128. 08.12.2016
B. SARSWATHI
W/O KALEGAL CHENNAPPA
AGE: 53 YEARS,
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RFA No.6013 of 2012
C/W RFA No.200087 of 2023
R/O: CHIKSUGUR,
RAICHUR - 584 128.
C. NARSAMMA
W/O DEVANNA
AGE: 50 YEARS,
R/O: NAANDAHAPALLI, ADONI MANDAL
ANDHRA PRADESH - 414 124.
2. DEVARAJ
S/O SUGANNA
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: AROLI, TQ: MANVI,
DIST: RAICHUR - 584 128.
3. BASAVARAJ
S/O SUGANNA
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: AROLI, TQ: MANVI,
DIST: RAICHUR - 584 128.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADV., FOR R1(B) & R1(C) AND R3; (LRS OF DECEASED R1 (A) ARE R1(B) AND R1(C) & R3;) SRI ARUN KUMAR AMARGUNDAPPA AND SRI VISHWANATH RAMPURE, ADVOCATE FOR R2; THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED BY THE HON'BE PRINCIPAL SENIOR CIVIL JUDGE AT RAICHUR IN O.S.NO.120/2007 AND DECREE THE SUIT OF THE PLAINTIFF WITH COSTS BY ALLOWING THIS APPEAL, IT IS FURTHER PRAYED THAT THE COUNTER CLAIM OF THE -3- NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 DEFENDANTS/RESPONDENTS BE DISMISSED WITH EXEMPLARY COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. IN R.F.A. NO.200087 OF 2023 BETWEEN:
S. VEERESH S/O RACHANNA AGE: 62 YEARS, OCC: AGRICULTURE, R/O: AROLI, TQ: MANVI, DIST: RAICHUR.
...APPELLANT (BY SRI SACHIN M. MAHAJAN, ADVOCATE) AND:
1. S. SUGANNA SINCE DECEASED BY LRS.
a. SARSWATHI W/O KALEGAL CHENNAPPA AGE: 53 YEARS, R/O: CHIKSUGUR, RAICHUR.
b. NARSAMMA W/O DEVANNA AGE: 50 YEARS, R/O: NAANDAHAPALLI, ADONI MANDAL ANDHRA PRADESH.
2. DEVARAJ S/O SUGANNA AGE: MAJOR, OCC: AGRICULTURE, R/O: AROLI, TQ: MANVI, DIST: RAICHUR.
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3. BASAVARAJ S/O SUGANNA AGE: MAJOR, OCC: AGRICULTURE, R/O: AROLI, TQ: MANVI, DIST: RAICHUR.
...RESPONDENTS (BY SRI SHIVANAND PATIL, ADV., FOR R1(A) & R1(B) AND R3; SRI ARUN KUMAR AMARGUNDAPPA, ADVOCATE FOR R2; THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR RECORDS AND SET-ASIDE THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED BY THE HON'BE PRINCIPAL SENIOR CIVIL JUDGE AT RAICHUR IN O.S.NO.120/2007 INSOFAR AS IT RELATES TO THE COUNTERCLAIM FILED BY THE DEFENDANT NO.1 AND DISMISS THE COUNTERCLAIM BY ALLOWING THE APPEAL WITH EXEMPLARY COSTS, IN THE INTEREST OF JUSTICE AN EQUITY.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, S.SUNIL DUTT YADAV J., DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND HON'BLE MR. JUSTICE RAJESH RAI K -5- NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 C.A.V. JUDGMENT (PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV) I. BRIEF FACTS:-
The present appeals are filed by the plaintiff challenging the judgment and decree dated 17.12.2011 passed in O.S.No.120/2007 by the Court of Prl. Senior Civil Judge, Raichur, whereby suit of plaintiff was dismissed and counter-claim allowed declaring defendant no.1 to be the absolute owner of properties described in the Schedule of counter-claim and restraining the plaintiff and his agents from interfering with the possession of counter-claim property of defendant no.1.
2. RFA No.6013/2012 is filed challenging the dismissal of suit in O.S.No.120/2007, while RFA No.200087/2023 is filed against the allowing of the counter-claim and in light of the suit and counter-claim being disposed off by a common order, both the appeals are disposed off vide this common judgment.-6-
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3. The prayers made in the suit and counter-claim are as follows:-
Prayer in Suit:-
"That the Hon'ble Court may be pleased to decree the suit of the plaintiff and grant the following relief:
a) A decree of partition granting one half in the suit schedule properties to the plaintiff and handing over separate possession thereof to the plaintiff after dividing the same by metes and bounds.
b) Such other decree or order which the Hon'ble Court deems fit in the circumstances of the case, and
c) Award costs of the suit.
Prayer in counter claim:-
The defendant No.1 therefore prays that, the Hon'ble Court be pleased to dismiss the suit of the plaintiff with exemplary costs and allow the counter claim of defendant No.1 and pass the decree in favour of defendant No.1 as follows.
a) A declaratory decree that the defendant No.1 is the absolute owner and possessor of the lands described in the schedule of counter claim of the defendant No.1.
b) By restraining the pltf (sic), his men, servants, persons claiming under him fro (sic) causing any interference in the peaceful -7- NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 possession of the defendant No.1 over the schedule properties of the counter claim.
c) The costs of the counter claim are awarded.
d) Such other relief or relief's which the Hon'ble Court deem fit and proper and the defendant No.1 is entitle to in the circumstances of the these may also be awarded in favour of defendant No. 1, in the interest of Justice."
4. The Genealogy of parties is as follows:
Hampanna Suganna Rachanna (Defendant - 1 ) Veeresh (Plaintiff) Ademma Saraswati Narasamma Devaraj Basavaraj (Wife) (Daughter) (Daughter) (Son) (Son) Defendant -1(a) Defendant -1(b) Defendant.1(c) Defendant-2 Defendant-3
5. The parties are referred to by their rank before the Trial Court.
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6. The plaintiff S. Veeresh claims to be the son of Rachanna. It is asserted that Hampanna was the Prepositus and died leaving behind his two children Rachanna and Suganna (defendant no.1). The plaintiff claims to be the son of Rachanna while the defendant nos.2 and 3 are stated to be the sons of Suganna.
7. It is asserted that after the death of Hampanna, the properties left behind by him were succeeded to by Rachanna and the defendant no.1 in equal shares. It is further asserted that consequent to the death of Rachanna, the plaintiff has succeeded to the share of Rachanna.
8. It is stated that in light of the defendants not honouring the claim of the plaintiff, the present suit came to be filed seeking for decree regarding one half share as also handing over of separate possession after dividing the same by metes and bounds.
9. The properties are more fully described in the Schedule. The defendant no.1, Suganna, has filed the -9- NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 written statement denying that plaintiff is the son of Rachanna and asserts that plaintiff is the son of Channabasappa.
10. The relationship however between defendant no.1 (Suganna) and Rachanna being the children of Hampanna is admitted and the further averment that defendant no.2 and 3 are the sons of defendant no.1 is also admitted.
11. It is specifically asserted that defendant no.1 and Rachanna had constituted joint family and through joint efforts had acquired various agricultural lands.
12. It is specifically asserted that plaintiff had not included few of the properties described in para-4 of written statement as a subject matter of the legal proceedings and accordingly the suit was bad due to non-inclusion of the said properties in the Plaint Schedule.
13. It was also asserted that there was a partition between defendant no.1 and Rachanna as regards the
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 joint family properties pursuant to which mutations have been effected in the names of defendant no.1 and Rachanna. As Rachanna died on 04.10.2003 as a Bachelor leaving behind him no legal heirs, defendant no.1 alone has succeeded to all the landed properties of Rachanna as preferential Class-II heir.
14. The defendant no.1 has also preferred a counter- claim asserting that he is the owner in possession of the schedule lands and has also detailed the properties in the form of Schedule at Para-18 of his pleading. The defendant no.3 has adopted the written statement of defendant no.1.
15. After the death of Suganna, during the pendency of proceedings, his legal representatives being the wife and daughters have come on record as defendant nos.1(a) to 1(c) and have filed a separate written statement. The daughters of late Suganna while asserting that they were given gold, cash and other valuable properties at the time of marriage, they have given up their claim "in the suit or
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 non-suit properties". It is admitted that defendant nos.2 and 3 are alone entitled to all the properties left behind by the deceased prepositus.
16. It is specifically asserted that the plaintiff is a total stranger to the family of the defendants and is falsely trying to appropriate the properties left by Rachanna by claiming himself as the son of Rachanna. II. TRIAL COURT OBSERVATIONS:-
17. The Court has framed the following issues:
1) Whether the plaintiff proves that, he is the son of Rachanna?
2) Whether he proves that, the suit schedule properties are the it (sic) family properties of himself and the defendant?
3) Whether the suit of the plaintiff is bad for nonjoinder of all the properties?
4) Whether the defendants prove that, he is the exclusive owner and possessor of suit properties as claimed by him in the counter claim?
5) Whether the plaintiff is entitled to any share in the suit property? If so to what share is he entitled?
6) What decree or order?"
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18. It is to be noted that the answers recorded by the Trial Court at para-10 of the impugned judgment is in variation with the reasoning and conclusion. Such variation is noted as hereunder:-
Observations of Trial Court at Conclusion recorded in the para-10 of the impugned reasons on the issues framed judgment Issue no.1:In the affirmative Issue nos.1 and 2 are answered Issue no.2:In the affirmative in the negative;
Issue no.3: none survival for Issue no.3 is concluded as not consideration surviving for consideration;
Issue no.4: none survival for Issue no.4 is answered in the
consideration affirmative;
Issue no.5: In the negative Issue no.5 is answered in the
negative.
Accordingly, as per the reasonings recorded by the Trial Court, the answers recorded at para-10 of the impugned judgment ought to have been as follows:-
(i) Issue nos.1 and 2 - In the negative;
(ii) Issue no.3 - as not surviving for consideration
(iii) Issue no.4 - in the affirmative
(iv) Issue no.5 - in the negative
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19. The plaintiff has led in evidence by examining himself as PW.1, while defendants have led in evidence through DW.1 to DW.3. Plaintiff has got marked documents as per Ex.P1 to P20 and defendants have marked the documents as per Ex.D1 to D136.
20. The Trial Court has observed that the only disputed contention is that the defendants have denied the relationship of the plaintiff with the joint family.
21. The Court has taken note of the suggestion of plaintiff during cross-examination that after the death of Channabasappa, Parvathamma contracted second marriage with Rachanna. It has however observed that such facts are absent in the pleadings. Further, it has noticed that in Ex.D1, RTC the entry of "Parvathamma W/o Channabasappa" is found and as regards such entry no explanation was forthcoming from the plaintiff. The Court has observed that O.S.No.5/1997 filed seeking declaration that plaintiff is the son of Rachanna, was dismissed for
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 non-prosecution. Taking note of the Sale Deeds which indicated that plaintiff is the son of Channabasappa and Parvathamma and other materials referred to above, the Trial Court has concluded that the plaintiff has failed to prove that he is the son of Rachanna. In light of such finding the Court has observed that the suggestion that suit properties are joint family properties of plaintiff and defendants does not arise for consideration and accordingly, recorded a finding as regards issue No.2 in the negative, issue no.3 framed regarding suit being bad due to non-joinder of all properties is declared as not arising for consideration.
22. However, as regards the counter-claim, the trial court has allowed the relief for declaration claimed while observing that in view of finding on issue No.1, it can be taken that the relief of counter-claim stands established as regards the properties described. Accordingly issue No.4 is held in the affirmative. In light of such result, present appeal is filed.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 III. ARGUMENTS:-
23. Learned Counsel for plaintiff Sri.Sachin Mahajan, has advanced several contentions and has sought to make out a case for decreeing the suit.
24. It is contended that the finding of the Trial Court on issue no.1 that the plaintiff is not the son of Rachanna is erroneous, that Rachanna himself had admitted that the plaintiff is his son as is evident from Ex.P13, which is the Registration Certificate of the vehicle showing the name of the plaintiff being the son of Rachanna. In terms of Ex.P18, Rachanna had in a proceeding before the Tahsildar shown the name of the plaintiff as his son. Such admission, it is stated, is binding on Suganna and his children as they are claiming the property of Rachanna and hence, are bound by Rachanna's admission.
25. It is further contended that once Rachanna had acknowledged him as his son, he would be entitled to the property of Rachanna.
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26. Learned Counsel Sri.Shivanand Patil would contend that 'admission' of Rachanna would not be binding on the defendants who are disputing the relationship of plaintiff with Rachanna.
27. It is submitted that the plaintiff in his cross-examination has admitted that Channabasappa was the first husband of his mother Parvathamma and after his death, she has married Rachanna. If such is the stand of the plaintiff, necessary pleadings ought to have been made and in the absence of such pleading, no amount of evidence could be looked into.
28. It is specifically contended that the plaintiff has not lead sufficient evidence to demonstrate that he is the son of Rachanna and reliance is placed on various documents wherein the plaintiff is described to be the son of Channabasappa. Ex.D107 is the Sale Deed dated 23.08.1976 describing the plaintiff as son of Channabasappa, Ex.D-102 to D-105 which relate to the Record of Rights show the name of Veeresh, S/o
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 Channabasappa, Ex.D120 which is the Sale Deed by virtue of which Parvathamma purchases property is described as Parvathamma, W/o Channabasappa, Ex.D123 is the application addressed to the Tahsildar requesting the Tahsildar to mutate the name of Devaraj S/o Veeresh from the name of Parvathamma, W/o Channabasappa. IV. ANALYSIS:-
29. Heard both sides.
30. The following points arise for determination:
(A) Whether the finding of the trial court on Issue no.1 as regards the relationship of the plaintiff with Rachanna calls for any interference ?
(B) Whether the finding of the Trial Court as regards counter claim requires to be allowed?
(C) Whether any other ground is made out for interference with the findings of the Trial Court?
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31. It must be noticed that plaintiff has specifically asserted that he is the son of Rachanna and it is on such basis that the relief in the suit of granting a decree of partition and allotting one half in the suit schedule properties to the plaintiff as well as passing of a decree of separate possession after such division is sought for.
32. The admitted facts being that Hampanna had two sons viz., Rachanna and Suganna. The plaintiff claims to be the son of Rachanna. It is the specific case of the defendants that Rachanna died as a Bachelor and that the plaintiff was not his son but the son of Parvathamma and Channabasappa. Accordingly, it is contended that plaintiff is a stranger to the family of Hampanna.
33. The defendants in order to put forth their case have relied on voluminous evidence to contend that the plaintiff was the son born to Parvathamma and Channabasappa.
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34. The following are the documents marked in evidence which would indicate that Parvathamma and Channabasappa were married to each other and the plaintiff was also described as their son in documents marked as evidence. Such of the documents which would establish the above relationship marked in evidence are as follows:
i) Ex.D107 is the Sale Deed executed on 23.08.1976 in favour of the plaintiff wherein name of the plaintiff is described as Veeresh, S/o Channabasappa.
ii) Ex.D123 is the application given by the plaintiff to the Tahsildar stating that consequent to the death of his mother Parvathamma, W/o Channabasappa, properties standing in her name may be changed into the name of his son Devaraj. In the said document, plaintiff describes his mother as Parvathamma, W/o Channabasappa and himself as Veeresh, S/o Channabasappa.
iii) Ex.D125 is a Family Tree wherein plaintiff is described to be the son of Channabasappa.
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iv) Ex.D126 is the Death Certificate of Parvathamma and name of husband is shown as Channabasappa.
v) Ex.D127 - Voters List of the year 1988 shows the name of Parvathamma and her husband Channabasappa.
35. There are other revenue entries also which would indicate Veeresh as being the son of Channabasappa such as, Ex.D95, 96, 97, 98, 99, 101, 102, 103, 104 and 106. In all such Record of Rights, the name of the plaintiff is shown as Veeresh, S/o Channabasappa.
36. The above documents being entries in public records are required to be given due evidentiary weightage as being records prepared by Government Officials and presumption in terms of Section 114 of the Indian Evidence Act, 1872 that such entries are reflective of official acts regularly performed.1 1 Illustration E to Section 114
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37. The plaintiff in his cross-examination has deposed as under:
" £À£Àß vÀAzÉ ªÀiÁ¤é £ÁåAiÀiÁ®AiÀÄzÀ N.J¸ï.£ÀA.33/1996 gÀ°è gÁZÀtÚ £À£ÀߣÀÄß vÀ£Àß ªÀÄUÀ C¯Áè JAzÀÆ ¤.r.110 gÀAvÉ zÁªÉ zÁR°¹zÁÝ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. CzÀgÀ°è £À£Àß vÀAzÉAiÀÄ ºÉ¸g À ÀÄ ZÉ£Àߧ¸Àì¥Àà CAvÁ §gÉAiÀįÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. D PÉù£À°è £À£Àß vÁ¬Ä, ZÉ£Àߧ¸Àì¥Àà £À£Àß UÀAqÀ JAzÀÆ §gÉ¢zÁÝ¼É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgz É ÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ, ZÉ£ßÀ §¸Àì¥Àà £À£Àß vÁ¬Ä ¥ÁªÀðvÀªÀÄä¼À ªÉÆzÀ®£Éà UÀAqÀ EgÀÄvÁÛ£É ªÀÄvÀÄÛ CªÀgÀÄ ¸ÀvÀÛ £ÀAvÀgÀ £À£Àß vÁ¬ÄUÉ gÁZÀtÚ EgÀÄvÁÛg.É £À£Àß vÁ¬ÄAiÀÄ JgÀq£ À ÃÉ UÀAqÀ gÁZÀtÚ EgÀÄvÁÛgÉ JAzÀÆ £Á£ÀÄ E°èAiÀĪÀgU É ÀÆ J®Æè ªÀÄvÀÄÛ zÁªÉAiÀÄ°è §gɬĹgÀĪÀÅ¢®è. ¥ÁªÀðvÀªÀÄä¼ÀÄ JgÀqÀ£ÃÉ ªÀÄzÀĪÉAiÀiÁVzÁÝ¼É JAzÀÆ F ¢£À £Á£ÀÄ ºÉƸÀzÁV ¸ÀȶֹPÉÆAqÀÄ ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £Á£ÀÄ ºÀÄlÄÖªÀÅzÀQÌAvÀ ªÉÆzÀ®Ä gÁZÀtÚ £À£Àß vÁ¬Ä ¥ÁªÀðvÀªÀÄä¼£ À ÀÄß ªÀÄzÀĪÉAiÀiÁVzÀÝ. ¤.r.120 zÁR¯ÉAiÀÄÄ 1986 gÀ°è DVzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸Àzj À ¤.r.120 gÀ°è £À£Àß vÁ¬Ä ¥ÁªÀðvÀªÀÄä¼À UÀAqÀ£À ºÉ¸g À ÀÄ ZÉ£Àߧ¸Àì¥Àà CAvÁ EzÉ gÁZÀtÚ CAvÁ £ÀªÀÄÆzÀÄ EgÀĪÀÅ¢®è. F §UÉÎ £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
(emphasis supplied)
38. If it is the stand that Rachanna married Parvathamma subsequently and accordingly, plaintiff was claiming as legal heir of Rachanna as well, such case ought
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 to have been set up by specific pleading which is absent. Once the written statement is filed, denying relationship of plaintiff with Rachanna's family, the plaintiff ought to have filed additional pleadings with permission of the Court setting up his defence specifically that he is the son of Rachanna in terms of Order VIII Rule 9 of Code of Civil Procedure or atleast ought to have raised such case by filing response to the counterclaim.
39. It is the settled position of law that no amount of evidence without pleading can be looked into.2 The Trial Court has also rightly noticed that the plaintiff has not putforth pleadings as to when he became the son of Rachanna. Unless the case that Rachanna married Parvathamma is set up and evidence in support of such case was lead before the Court, the question of accepting the contention that plaintiff is the son of Rachanna does not arise. Though in the latter position of the same 2 As held by the Bench of Three Judges of the Apex Court in Biraji @ Biraji & Another v. Surya Pratap and Others - (2020) 10 SCC 729 that in the absence of pleading, no amount of evidence will help the party.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 deposition, there is an effort to water down the admission, the plaintiff's admission that Channabasappa and Parvathamma were his father and mother, still remains.
40. The contention advanced at the time of arguments before this Court that Rachannna had treated the plaintiff as his son as evidenced by proceedings before the Tahsildar as per Ex.P18, copy of the Registration Certificate of the vehicle at Ex.P13 has the effect of binding the defendant cannot be accepted. It is the specific case of the defendant that plaintiff is not the son of Rachanna. The defendants who claim through Suganna base their rights as preferential heirs of Rachanna and in the absence of any children to Rachanna, they inherit the property of Rachanna in terms of law of succession3. If such is the right of succession putforth by defendants, 3 Section 11 of the Hindu Succession Act, 1956 is extracted as follows:- 11. Distribution of property among heirs in class II of the Schedule.- The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they, share equally.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 such independent right cannot be defeated unless plaintiff proves that he is the son of Rachanna.
41. The alleged admission of Rachanna that plaintiff is his son does not confer the plaintiffs with the legal capacity of son so as to displace the rights claimed by Suganna's children as preferential heirs in law. The alleged admission of Rachanna treating the plaintiff as his son cannot bind Suganna's heirs. Though there are certain documents such as Ex.P17 which is the Transfer Certificate which shows the name of Veeresh and father's name as Rachanna and mother's name as Parvathamma, however, such document does not in any way have the effect of conclusively proving that the plaintiff is the son of Rachanna.
42. On appreciation of the entirety of evidence would only indicate that plaintiff was the son of Parvathamma and Channabasappa as deposed by the plaintiff in the cross-examination.
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43. It may be that Parvathamma married Rachanna subsequently. However, such case is not pleaded and unless pleaded, no amount of evidence could be relied on to establish such relationship. Accordingly, the finding of the trial court that plaintiff is not the son of Rachanna requires acceptance.
44. The counter claim has been filed by the original defendant No.1 Suganna contending that after receipt of Court notice the plaintiff has come to know regarding the plaintiff having entered his name as regards the property in Item Nos.1 to 4 of the written statement schedule properties.
45. The prayer sought in the counter claim is that the defendant is the absolute owner of the Schedule lands and that an order of injunction be passed restraining the plaintiff's interference. The plaintiff not having filed the written statement to the counter claim, the Trial Court has decreed the counter claim. It is observed that, the issue no.1 has been held in the negative holding that the
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 plaintiff has failed to prove that he is the son of Rachanna and has proceeded to hold that the plaintiff is the owner of the written statement/counter claim properties.
46. Learned counsel for the plaintiff has contended that the counter claim must be 'against the claim of the plaintiff' and in the present case the counter claim relates to properties that are not a part of the Plaint schedule.
47. It must be noticed that the claim in the suit relates to the properties stated to be the joint family properties of Hampanna who was survived by Rachanna and Suganna. The plaintiff sets up his claim as the son of Rachanna.
48. The counter-claim as noticed above relates to the plaintiff having got revenue records entered into his name claiming to succeed to Rachanna's share. Both the suit and counter claim relate to the assertion of the plaintiff as the son of Rachanna.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023
49. Accordingly, it can be stated that the counter-claim is 'against the claim of the plaintiff', while the plaintiff seeks for partition of joint family properties on the premise that he is the son of Rachanna and accordingly, has a right in the properties left out by him, the counter claim seeks for a relief of declaration as regards properties claimed by the plaintiff in the capacity of Rachanna's son.
50. Further, it must be noticed that the scope of counter claim has now been enlarged after the amendment to Code of Civil Procedure. The observations of Apex Court throws light on the wide amplitude of the counter claim in the case of Jag Mohan Chawla & Another v. Dera Radha Swami Satsang & Others4 and the relevant observations are as follows:
"5. ... In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would 4 1996 (4) SCC 699,
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter-claim in
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. ..."
51. In the present case, it is also to be noticed that Order VIII Rule 6 of Code of Civil Procedure, the plaintiff is entitled to seek for exclusion of counter-claim from the proceedings and may apply to the Court for an order that the counter-claim be filed as a separate suit. Such option has not been exercised.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023
52. Coming to the merits of the case set up in the counter-claim, at the out set, records do not revel that any pleading is filed before the trial Court opposing the counterclaim. The counter-claim seeks for declaration that the defendant is the owner of the schedule properties and that the plaintiff ought not to interfere with the said properties.
53. The trial Court has allowed the counter-claim while observing that once issue no.1 in the suit is held in the negative and the plaintiff has not proved that he is the son of Rachanna and as the properties belong to Rachanna the counter-claim requires to be allowed.
54. It must be noticed that the counter-claim was filed by Suganna when he was alive. The primary allegation made is that plaintiff has got his name inserted in the revenue records as regards the properties of Rachanna.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023
55. As noticed by the trial Court, the plaintiff has failed to establish that he is the son of Rachanna, which conclusively proves that the plaintiff cannot claim rights to the properties of Rachanna as a legal heir of Rachanna.
56. The properties claimed in the counter-claim are:-
Hissa Measurement Sl. No. Survey No. No. Acre - Gunta
1) 275 A/1 01 - 14
2) 275 A/2 01 - 10
3) 275 AA 05 - 04
4) 6 - 02 - 38
5) 404 A 04 - 12 All properties situated at Aroli Village.
57. Insofor as item Nos.1 to 3 of the counter-claim viz., Sy.No.275, A/1 measuring 1.14 guntas, Sy.No.275, A/2 measuring 1 acre 10 guntas and 275 AA - measuring 5 acre 4 guntas, PW-1, the plaintiff admits that the properties are the self-acquired properties of Rachanna. The admission recorded on 18.11.2008 reads as follows:
"Sy.No.275/A/1 measuring 1 acre 16 guntas and Sy.No.275/A/2 measuring (sic) 1 acre 10 gunts as, Sy.No.275 measuring (sic) 5 acre 4 guntas are situated at Aroli village and the said
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 properties have been purchased by Rachanna and they are the self acquired properties."
58. In the absence of any registered document by Rachanna conveying the property to the plaintiff, he could not have got the revenue entries in his name. Accordingly, allowing of the counter-claim by the trial Court as regards such properties requires to be upheld, noticing that there was no written statement filed to the counter-claim.
59. Similarly as regards Sy.No.6, the counter-claim Schedule Property at Item No.4 of Aroli village was purchased by Suganna as per the Sale Deed at Ex.D10. In light of Sale Deed itself standing in the name of Suganna, the question of the plaintiff claiming any rights in the said property does not arise and accordingly, the allowing of the counter-claim as regards such item cannot be faulted.
60. Insofar as item no.5 of the counter-claim viz., Sy.No.404 'A' measuring 4 acres 12 guntas, the same was purchased by Nagamma W/o Hampanna, the mother of Rachanna and Suganna in items of the Sale Deed at
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 Ex.D11, the RTC's stand in the name of Nagamma W/o Hampanna as per Ex.D37 to D41. In light of such records the say of the plaintiff that it belongs to his mother cannot be accepted and the claim set up in the counter-claim requires to be decreed.
61. Though the trial Court has not dealt in detail as regards the records produced in support of the counter- claim, however, this Court in light of the evidence on record affirms the conclusion of trial Court in terms of the discussion made above.
62. In light of the discussion made hereinabove, the points for determination, viz., (A), and (C) are held in negative and point (B) is held in affirmative.
Accordingly, RFA No.6013/2012 and RFA No.200087/2023 are rejected.
ORDERS ON APPLICATION UNDER ORDER 41 RULE 27 CPC The plaintiff-appellant has filed an application under Order 41 Rule 27 of Code of Civil Procedure seeking to
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 produce the additional documents. Such application is filed along with the memorandum of appeal.
It must be noticed that right to produce additional evidence is not an unqualified right. The Apex Court in the case of Union of India v. Ibrahim Uddin and Another5, has clarified the scope of such applications. It is observed that the provision does not apply when on the basis of evidence on record the Appellate Court can pronounce a satisfactory judgment. It is also specified that the said provision cannot be made use of by a party to cover their lapses. At para-40, it is observed that the inadvertence of the party to understand the legal issues involved or the wrong advise of a pleader whereby party did not realize importance of the document would not constitute "substantial cause" within the meaning of the Rule. 5 (2012) 8 SCC 148
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 In light of the above scope of Order 41 Rule 27 of CPC, the present application of the plaintiff requires to be considered.
It is clear that the evidence on record as referred to by this Court in the judgment would make it clear that the material on record is sufficient to pronounce the judgment that this Court is of the view that no occasion arises for permitting the additional evidence to come on record which would assist the Court to render the judgment.
The reasons assigned in the affidavit filed in support of application is to the effect that upon legal advise at the time of filing of the appeal after discussion with the counsel, he seeks to produce documents to establish his case.
It is further averred that he was not advised properly during the pendency of the suit and in light of ignorance of procedure and law he had not produced the documents
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 before the trial Court and was unaware of the importance and relevance of those documents.
It must be noticed that amongst the documents sought to be produced, proceedings in the form of pleadings in the suits pending between the parties in O.S.Nos.5/1997 and 33/1996 are sought to be produced.
It is to be noticed that before the trial Court some of the documents relating to O.S.Nos.5/1997 and 33/1996 have already been produced as Ex.D110 (Plaint in O.S.No.33/1996) and Ex.D114 (Plaint in O.S.No.5/1997). The additional documents in the list at Sl.Nos.21 to 28 relate to the said suits and accordingly ought to have been produced at the first instance in the trial and the present attempt to produce such documents in the appellate proceedings without any acceptable reason must be construed to be an attempt to improvise their case and cover up the lapses which is impermissible and accordingly, resort to proceedings under Order 41 Rule 27 of C.P.C. ought not to be allowed.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 The documents in the list annexed to the application at Sl.Nos.6 to 20 relate to the proceedings before the Criminal Court and nothing prevented the plaintiff from producing such documents during the course of trial. Some of the documents relate to the statements made which by themselves will not be substantive piece of evidence unless the authors of such statement are examined. Such of the witnesses could have been summoned before the trial Court and not having done so, the present effort to rectify such lapse is not permissible.
Accordingly, no grounds are made out to permit adducing of additional evidence as sought for, as even if such evidence were to be permitted to come on record, it would not change the outcome or conclusion arrived at by this Court.
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NC: 2025:KHC-K:497-DB RFA No.6013 of 2012 C/W RFA No.200087 of 2023 Accordingly, the application for production of additional documents is rejected.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAJESH RAI K) JUDGE NP,VGR List No.: 1 Sl No.: 1