Karnataka High Court
Kamalakar S/O. Ganapati Hegde vs Divakar S/O. Ganapati Hegde on 18 March, 2024
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NC: 2024:KHC-D:5400-DB
RFA No. 100174 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100174 OF 2017 (PAR)
BETWEEN:
1. KAMALAKAR S/O. GANAPATI HEGDE
AGED 51 YEARS,
OCC: AGRICULTURIST,
R/O: KONDALAGI, PO: BALAVALLI,
TQ: SIRSI (U.K) 581401.
2. GANAPATI S/O. GANAPATI HEGDE
AGED 63 YEARS,
OCC: AGRICULTURIST,
R/O: KONDALAGI, PO: BALAVALLI,
TQ: SIRSI (U.K)-581401.
3. RENUKA W/O. GANAPATI HEGDE
(DECEASED)
SHIVAKUMAR (AMENDMENT CARRIED OUT AS PER THE
HIREMATH
HON'BLE COURT ORDER DATED 25.09.2020).
Location: HIGH COURT
OF KARNATAKA
...APPELLANTS
DHARWAD BENCH
Date: 2024.03.25
12:40:09 +0530 (BY SRI.GIRISH A.YADWAD, ADVOCATE)
AND:
1. DIVAKAR S/O. GANAPATI HEGDE
AGED 68 YEARS,
OCC: AGRICULTURIST,
R/O: KONDALAGI,
PO: BALAVALLI,
TQ: SIRSI, (U.K)-581401.
2. SEETARAM S/O. GANAPATI HEGDE
AGED 66 YEARS, OCC: AGRICULTURIST,
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NC: 2024:KHC-D:5400-DB
RFA No. 100174 of 2017
R/O: KONDALAGI, PO: BALAVALLI,
TQ: SIRSI, (U.K)-581401.
GANGADHAR S/O. GANAPATI HEGDE
(DECEASED)
LEGAL HEIR OF DECEASED.
3. SULABHA KOM GANGADHAR HEGDE
AGED 51 YEARS,
OCC: HOUSEHOLD,
R/O: D-403,
VARDHAMANA VATICA
CO-OPERATIVE HOUSING SOCIETY,
OPPOSITE OF TATTWAJANA VIDYA PETA,
PORABANDAR ROAD,
THANE (WEST)-400607,
MAHARASTRA STATE.
4. INDIRA KOM CHIDAMBER HEGDE
AGED 68 YEARS,
OCC: HOUSEHOLD,
R/O: KONDALAGI,
PO: BALAVALLI,
TQ: SIRSI, (U.K)-581401.
5. SUDARSHAN S/O. CHIDAMBER HEGDE
AGED 45 YEARS,
OCC: AGRICULTURIST,
R/O: KONDALAGI,
PO: BALAVALLI,
TQ: SIRSI, (U.K)-581401.
6. VINAYAK S/O. CHIDAMBER HEGDE
AGED 43 YEARS,
OCC: AGRICULTURIST,
R/O: KONDALAGI,
PO: BALAVALLI,
TQ: SIRSI, (U.K)-581401.
7. SAVITA KOM VISHWANATH BHAT
AGED 41 YEARS,
OCC: HOUSEHOLD,
R/O: VADAGERI,
PO: HOSTOTA,
TQ: SIDDAPUR (U.K)-581355.
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NC: 2024:KHC-D:5400-DB
RFA No. 100174 of 2017
8. SARASWATI KOM GANAPATI HEGDE
AGED 61 YEARS,
OCC: HOUSEHOLD,
R/O: BHEEMANALLI,
PO: TATTIKAI,
TQ: SIDDAPUR, (U.K)-581355.
9. LOLAKSHI KOM VISHWANATH HEGDE
AGED 59 YEARS,
OCC: HOUSEHOLD,
R/O: MATTEMANE,
PO: KARKISAVALU,
TQ: SIDDAPUR, (U.K)-581355.
10. KUSUMAKSHI KOM NAGAPATI HEGDE
AGED 55 YEARS,
OCC: HOUSEHOLD,
R/O: KODNAMANE,
PO: KODNAMANE,
TQ: SIDDAPUR, (U.K)-581355.
11. SHOBHA KOM SHRIKANT BHAT
AGED 53 YEARS, OCC: HOUSEHOLD,
R/O: MELINA ONIKERI,
TQ: SIRSI, NOW AT HOUSE NO.32,
C/O: P.A. PAI, FOREST COLONY,
RAJANAGAR,
HUBBALLI-32,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADVOCATE FOR
R4, R5, R6 AND R7;
NOTICE TO R1 TO R3 AND R8 TO R11 ARE SERVED)
THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 27.01.2017 PASSED IN O.S.NO.
28/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, SIRSI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND MESNE PROFITS.
THIS APPEAL COMING ON FOR DECTATING JUDGMENT,
THIS DAY, E.S.INDIRESH, J., DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:5400-DB
RFA No. 100174 of 2017
JUDGMENT
1. This appeal is preferred by the plaintiffs, assailing the judgment and decree dated 27th January, 2017 passed in Original Suit No.28 of 2012 on the file of the Senior Civil Judge, Sirsi, (for short, hereinafter referred to as 'Trial Court'), decreeing the suit of the plaintiffs in-part.
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.
3. The plaint averments are that the original propositor- Ganapathi Thimmaiah Hegade and his wife- Renuka (defendant No.8) had ten children namely, Chidamber [died leaving behind his wife Smt. Indira (defendant No.4) and children Sri. Sudarshan (defendant No.5), Sri. Vinayak (defendant No.6) and Smt. Savitha (defendant No.7)], Diwakar (defendant No.1), Sitaram (defendant No.2), Ganapathi (plaintiff No.2), Gangadhar (defendant No.3), Kamalakar (plaintiff No.1), Saraswathi (defendant No.9), Lolakshi (defendant No.10), Kusumakshi (defendant No.11) -5- NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 and Shoba (defendant No.12). It is the case of the plaintiffs that the schedule 'A' to 'E' properties, consisting of Agricultural land, plantation and two house properties situate at Kondalagi Village of Sirsi Taluk and Hasanagi Village of Yellapur taluk are the joint family properties of the plaintiffs and defendants. It is the further case of the plaintiffs that, the first son of Ganapathi Thimmaiah Hegade-Chidambara was managing the affairs of the joint family properties on account of aged parents for a considerable period. It is further stated that the said Chidamber died on 18.01.2007 leaving behind his wife and children namely defendants 4 to
7. It is the case of the plaintiffs that, except the agricultural land bearing Survey No.48/3 of schedule 'A' property and schedule 'B' and 'C' properties, the remaining properties are the ancestral properties of the plaintiffs and defendants. It is further averred in the plaint that the schedule 'B' and 'C' properties including the house property as well as land bearing Survey No.48/3 of schedule 'A' property were purchased through the income derived from the joint family properties and therefore, the plaintiffs claim that, though the -6- NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 aforementioned properties stands in the name of the their elder brother-Chidamber and those properties are the joint family properties as the said deceased Chidamber was managing the affairs of the joint family. It is further averred in the plaint that, as there is no partition effected between the members of the joint family, the defendants 1 and 2 and deceased Chidamber fraudulently entered their names in revenue records and being aggrieved by the same, plaintiffs made a claim of their share with the defendants herein and same was denied by the defendants and as such, the plaintiffs have filed Original Suit No.28 of 2012 on the file of the Trial Court seeking partition and separate possession in respect of the suit schedule properties.
4. After service of summons, defendants 3 and 8 remained absent and accordingly, they were placed ex-parte. Defendants 1, 4 to 7, 9 and 11 entered appearance, however, not filed written statement. Defendants 2, 10 and 12 appeared and filed detailed written statement. Defendants 1 and 6 filed written statement denying the claim made by the plaintiffs and it is the specific defence of the contesting -7- NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 defendants that the deceased Chidamber had a independent business and availed loan from the Bank to purchase the land bearing Survey No.48/3 and house property situate at Hasanagi Village and therefore, the said properties cannot be considered as the joint family properties of the plaintiffs and other defendants. It is also stated in the written statement that the defendant No.5 got an employment and was enjoying schedule 'D' property by obtaining grant from the Government and therefore, those properties are not the joint family properties. It is also further stated in the written statement that the plaintiffs and defendants divided the joint family property on 21.10.1995 and thereafter, mutation entries have been changed in the revenue records and accordingly, sought for dismissal of the suit.
5. Based on the pleadings on record, the Trial Court has formulated the following issues:
1. "Whether the plaintiffs prove that suit properties are ancestral joint family property of plaintiffs and defendants?
2. Whether the plaintiffs further prove that the suit "A, B, C & D" properties are joint possession and -8- NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 enjoyment of plaintiffs and defendants and they are having 1/11th share each over the same?
3. Whether the plaintiffs further prove that M.E. No.694 of Kondalagi Village and entries in respect of suit "B" schedule properties are not at all binding on their share over the suit properties?
4. Whether the defendant Nos.1 & 6 prove that this suit is not maintainable without including the property which were taken by plaintiff No.2 during 1995 family partition?
5. Whether the Defendant Nos.1 and 6 prove that plaintiff No.2 and defendant No.2 are not members of their joint family?
6. Whether the Defendant Nos. 1 and 6 prove that two landed properties and a house which are situated at Hasanagi Village in Yellapur Tq. are independent properties of Chidamber Hegde as contended in the W.S.?
7. Whether plaintiff No.2 and defendant No.2 are not necessary parties to this suit?
8. Whether the plaintiffs are entitled to the reliefs as sought for?
9. Whether defendant Nos.10 and 12 are entitled for 1/11th share each in the suit property as prayed for?
10. What order or decree?"-9-
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6. In order to prove their case, plaintiff No.2 was examined as PW-1 and produced 36 documents and same were marked as Exhibit P1 to P36. On the other hand, defendants examined 2 witnesses as DW-1 and DW-2 and produced 4 documents and same were marked as Exhibit D1 to D4.
7. The Trial Court, after considering the material on record, by its judgment and decree dated 27th January, 2017 decreed the suit in-part, holding that the plaintiffs, defendant Nos.1, 2, 3(a) and defendant No.8 are entitled to 1/8th share each and defendant Nos.4 to 7 are jointly entitled to 1/8th share and defendant Nos.9 to 12 each are held entitled to 1/32nd share in the suit item Nos.1 to 27, 29 and 30 of 'A' schedule and in Schedule 'C' and 'E' properties. However, the claim of the plaintiffs seeking partition in the rest of the suit properties came to be rejected and the claim of the plaintiffs regarding mesne profits is also rejected. Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiffs and defendant No.8, have preferred this Regular First Appeal, challenging the judgment and decree dated 27th
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 January, 2017 passed by the Trial Court in Original Suit No.28 of 2012. During the pendency of the appeal, appellant No.3 (defendant No.8) died and accordingly, Memorandum of appeal was amended.
8. The appellant has filed I.A.No.1/2022 under Order 41 Rule 27 of CPC and sought to produce two documents namely certified copy of the letter dated 01.07.2019 issued by the Executive Officer, Primary Co-operative Agriculture and Rural Bank Limited, N.M.Yard, Sirsi, Uttara Kannada and the letter of allotment of site dated 04.06.1988/24.06.1988 issued by Karnataka Housing Board, Bengaluru. It is averred in the application that, these documents were not available to the appellants during the pendency of the suit before the Court below and as such, requesting this Court to accept the application along with the documents as additional evidence in the appeal. To this I.A.No.1/2022, respondents have filed objections stating that, the facts and grounds made out in the application does not satisfy the ingredients of Order 41 Rule 27 of CPC as there is no foundation in the pleadings and accordingly, they sought for rejection of the said application.
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9. With these backdrop of the factual aspects on record, we have carefully examined the original records. Further, we have heard Sri. Girish A. Yadawad, learned counsel appearing for the appellants and Sri. Dinesh M. Kulkarni, learned counsel appearing for the respondents.
10. Sri. Girish Yadwad, learned counsel appearing for the appellant contended that, the trial Court has not properly appreciated the material on record with right perspective and the trial Court ought to have considered the fact that, the item No.28 of the schedule A property, though purchased in the name of Chidamber, however, the said agricultural land was purchased out of surplus income of the joint family property and the said aspect was not properly appreciated by the trial Court and accordingly, he sought for interference of this Court.
11. He further emphasised that, Sri. Chidamber was managing the affairs of the joint family and schedule B property was purchased in the year 1992 and therefore, the defendants have not produced co-gent evidence to establish that the said property was acquired by the said Sri.
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 Chidamber out of his own income and the said aspect was not properly appreciated by the trial Court, and as such sought for interference of this Court. Arguing on the said aspect, he refers to the cross-examination of D.W.1 and argued that, the joint family consisting the plaintiffs and defendants had more number of agricultural lands and areca plantation and as such, he pleaded that, the finding recorded by the trial Court requires to be set aside in this appeal. In order to buttress his arguments, he placed reliance on the Judgment of the Hon'ble Supreme Court in the case of Adiveppa and others Vs. Bhimappa and another, reported in (2017) 9 SCC 586 and argued that, the onus lies on the contesting defendants to establish that, the three items of the schedule properties are the self acquired properties of late Sri. Chidamber and in this regard the contenting defendants failed to establish the same and as such, sought for interference of this Court.
12. Sri. Girish Yadwad, learned counsel appearing for the appellant invited the attention of the Court to I.A.No.1/2022 and argued that, the appellants have secured the material relating to the loan availed by the father of the
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 appellants from the Agricultural and Rural Bank, Sirsi and same would establish the fact that, the loan of Rs.7,200/- was availed by the father of the appellants just before the execution of the sale deed dated 23.06.1976 and therefore, sought for acceptance of the enclosed documents for re- appreciating the material on merits.
13. Per contra, Sri. Dinesh M. Kulkarni, learned counsel appearing for the respondents argued that, the trial Court after appreciating the material on record, rightly decreed the suit based on cogent evidence and same does not requires interference of this Court. He refers to the plaint averments and argued that the plaintiffs themselves admit that, three items of the schedule properties are the self acquired properties of late Sri. Chidamber and therefore, nothing is required to be interfered in this appeal and therefore, sought for dismissal of the appeal.
14. Insofar as, I.A.No.1/2022, learned counsel Sri. Dinesh M. Kulkarni submitted that, these documents were very much available for the appellants to produce before the
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 trial Court and therefore, sought for dismissal of the application.
15. In the light of the submissions made by the learned counsel appearing for the parties, we have carefully examined the contentions urged by the learned counsel appearing for the parties and pleadings on record. In order to arrive at just conclusion in the appeal, we feel that, the following points are to be answered in this appeal:
1. Whether the defendant Nos.4 to 7 establish that the land bearing Survey No.48/3, is a self acquired property of late Chidamber?
2. Whether the plaintiffs establish that the schedule properties are the joint family properties of the plaintiffs and defendants?
3. Whether the Judgment and decree passed by the trial Court requires interference in this appeal?
4. What order?
16. In the light of the submissions made by the learned counsel appearing for the parties, on careful examination of the material on record would indicate that, the original propositus Ganapati Thimmayya Hegade, had 10
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 children and had immovable properties to be devolved among his legal heirs. In order to understand the relationship between the parties, it is expedient to extract the genealogical tree of the parties which reads as under:
Ganapati Timmayya Hegde [Propositus] (Died) Renuka w/o. Ganapati Hegde [Defendant No.8] Chidamber [Died] Indira w/o Chidamber Hegde [Defendant No.4] Sudarshan s/o Chidamber Hegde [Defendant No.5] Vinayak s/o. Chidamber Hegde [Defendant No.6] Savita d/o Chidamber Hegde [Defendant No.7] Diwakar s/o Ganapati Hegde [Defendant No.1] Seetaram s/o Ganapati Hegde [Defendant No.2] Ganapati s/o ganapati Hegde [Plaintiff No.2] Gangadhar Hegde [Defendant No.3] Kamalakar s/o Ganapati Hegde [Plaintiff No.1] Saraswati d/o Ganapati Hegde [Defendant No.9] Lolakshi w/o Vishwanath Hegde [Defendant No.10] Kusumakshi w/o Nagapati Hegde [Defendant No.11] Shobha w/o Shrikant Bhat [Defendant No.12]
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17. Perusal of the genealogical tree would indicate that, Ganapati Thimmayya Hegade had considerable immoveable properties and he died during 1995, leaving behind his wife - Renuka (defendant No.8) and 10 children. First son of the Ganapati Thimmayya Hegade - Chidembar died on 18.01.2007 leaving behind his wife and children namely defendant Nos.4 to 7. The plaintiffs and defendant No.1 to 3 and 9 to 12 are the children of Ganapati Thimmayya Hegade and his wife Renuka (defendant No.8) died during pendency of appeal. There are A to E schedule properties namely 'A' schedule property consisting of 30 items of land properties. The grievance of the plaintiffs is that, Sl.No.28 namely land bearing Survey No.48/A3 of Kondalagi village is also the part of ancestral property of the parties; 'B' Schedule property is the land bearing Survey No.98 measuring 3 acres 39 guntas, situate at Hasanagi village, Yallapur taluk; Schedule 'C' property consisting of two items namely house property at Kondalagi village and another house property at Hasanagi village; Schedule 'D' property is the land bearing Survey No.45/B1 measuring 2 guntas at Landakanahalli
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 village, Sirsi taluk and items in the 'E' schedule properties are the moveable properties as mentioned in the plaint.
18. On careful examination of the arguments advanced by the learned counsel for the appellants, the grievance of the plaintiffs is with regard to land bearing Survey No.48/3- Item No.28 in A schedule property. Learned counsel appearing for the appellants, fairly stated that, the appellants have no grievance insofar as remaining properties except the land bearing survey No.48/3 is concerned. In order to ascertain the same, it is forthcoming from the findings recorded by the trial Court that, Ganapati Thimmayya Hegade had large extent of land as mentioned in the B schedule property. Item No.28 - land bearing survey No.48/3 has been purchased by Chidembar as per registered sale deed dated 23.06.1976. It is forthcoming from the evidence of D.W.1 - Vinayak Chidamber Hegade (son of Chidamber), that the land bearing Survey No.48/3 was purchased by his father - Chidembar out of the income derived from his own business of areca nut, and the loan availed by his father from the Bank. It is pertinent to mention here that, father of D.W.1 died on 18.01.2007 and
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 his father Ganapati Thimmayya Hegade, who died during 1979. If at all the land bearing Survey No.48/3 is the joint family property of the plaintiffs and defendants, Ganapati Thimmayya Hegade himself does not permit his son Chidamber to mutate in the revenue records reflecting the name of Chidamber. It is also to be noted that, Chidamber had purchased the land in question during 1976 and till the death of Chidembar during 2007, name of Chidamber was continued in the revenue records and the same was accepted by the entire family members including the father of the Chidembar - Ganapati Thimmayya Hegade and therefore, I find force in the submission made by the learned counsel appearing for the respondents that, the contesting defendants have established the fact that the land bearing Survey No.48/3 is the self acquired property of late Chidembar.
19. Be that as it may be, perusal of the paragraph No.3 of the plaint, would establish the fact that, the plaintiffs themselves admit the fact that, except the land bearing survey No.48/3 in A schedule property and the properties mentioned in B and D, remaining properties mentioned in the
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 plaint are the joint family properties. It is relevant to extract paragraph No.3 of the plaint which reads as under:
"3. zÁªÁ 'C' ±ÉqÀÆå¯ï ¥ÉÊQ ¸À.£ÀA.48/3 ºÁUÀÆ '§' ªÀÄvÀÄÛ 'qÀ' ±ÉqÀÆå¯ï D¹ÛAiÀÄ ºÉÆgÀvÁV G½zÀ AiÀiÁªÀvÀÆÛ D¹ÛUÀ¼ÀÄ ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ MlÄÖ PÀÄlÄA§zÀ ¦vÁæfðvÀ D¹ÛUÀ¼ÁVgÀÄvÀÛªÉ. zÁªÁ '§' ªÀÄvÀÄÛ 'qÀ' ±ÉqÀÆå¯ï D¹ÛAiÀÄ£ÀÄß ºÁUÀÆ CzÀgÀ°ègÀvÀPÀÌ EªÀiÁgÀvÀ£ÀÄß ªÀÄvÀÄÛ zÁªÁ 'C' ±ÉqÀÆå¯ï ¥ÉÊQ ¸À.£ÀA.48/3£ÀÄß zÁªÁ 'C' ±ÉqÀÆå¯ï D¹ÛAiÀÄ GvÀà£ÀߢAzÀ Rjâ¹zÀ D¹ÛAiÀiÁVgÀÄvÀÛzÉ. PÁgÀt zÁªÁ¹ÛUÀ¼É®èªÀÇ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ MlÄÖ PÀÄlÄA§zÀ D¹ÛUÀ¼ÁVzÀÄÝ CªÀÅUÀ¼À°è ªÁ¢AiÀÄjUÉ vÀ¯Á 1/11 CA±À ºÀQÌgÀÄvÀÛzÉ. zÁªÁ 'C', '§' 'PÀ' ªÀÄvÀÄÛ 'qÀ' ±ÉqÀÆå¯ï D¹ÛUÀ¼ÀÄ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ ¸ÁªÀÄÆ»PÀ PÀ¨Áâ ªÀ»ªÁnAiÀÄ°è EgÀÄvÀÛªÉ. zÁªÁ 'F ±ÉqÀÆå¯ï D¹Û 1 jAzÀ 8£Éà ¥ÀæwªÁ¢AiÀÄgÀ PÀ¨ÁâzÀ°è EgÀÄvÀÛªÉ."
(Emphasis supplied)
20. It is also to be noted that, as the plaintiffs themselves admit in the plaint about the acquisition of land bearing survey No.48/3 by late Chidembar out of his own income in the business and the said admission in the plaint itself disentitle the plaintiffs from seeking relief against the defendants. At this juncture, it is relevant to cite the Judgment of this Court in the case of Janatha Dal Party, Bangalore Vs. The Indian National Congress and others reported in ILR 2014 4726 paragraph No.41 to 57 reads as under:
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 "41. Order 6 Rule 1 of the Code of Civil Procedure 1908, defines what the pleading means. Pleadings shall mean plaint or written statement. Order 6 Rule 2 of CPC states what the pleadings should contain. Every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Therefore pleading must state facts and not law. It must state material facts and material facts only. It must state only the facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved. The material facts on which the party pleading relies for his claim or defence are called facta probanda. The evidence or the facts by means of which they are to be proved are called facta probantia. Every pleading should contain only facta porbanda, and not facta probantia. The distinction is taken in the very rule itself between the facts on which the party relies and the evidence to prove those facts.
42. The object and purpose of pleading is to enable the adversary party to know the case it has to meet.
Provisions relating to pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable the court to determine what is the real issue between parties and to prevent deviation from the course which litigation, on particular of causes of action, must take. It is to ensure that the litigants came to trial with all issues clearly defined and to prevent cases
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 being expanded or grounds being shifted during trial. To ensure that each side is fully alive to the question that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.
43. When the facts necessary to make out a particular claim, or to seek particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. The general rule, is that the relief should be founded on pleadings made by the parties. It is equally well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.
44. The pleadings however should receive a liberal construction. No pedantic approach should be adopted to defeat justice on hair splitting technicalities. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 interpretation of law. In such a case, it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. The pleadings have to be interpreted with latitude and not with formalistic rigour. In order to determine the precise nature of the action, the pleadings should be taken as a whole. Stray or loose expression, which abound in inartistically drafted plaints should not be taken into account. Real substance of the case should be gathered by construing the pleadings as a whole. It is the settled legal position that if the parties have understood the pleadings of each other correctly, issue was also framed by the Court, the parties led evidence in support of their respective cases, then the absence of specific plea would make no difference.
45. A case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. This should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence.
46. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is, did the parties know that the matter in question was involved in the trial? and did they lead evidence about it? If it appears that the parties did not know what the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
47. Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In order to claim a decree for declaration of title and for recovery of possession in the civil suit, the plaintiff has to essentially plead necessary facts so that the defendant could meet that case in the written statement and the parties could adduce evidence on such claims.
48. In this context it is necessary to notice the law declared by the Apex Court regarding pleadings in Civil Suits.
49. In SHEODHARI RAI & OTHERS vs. SURAJ PRASAD SINGH, the Apex Court held as under:-
"Where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only not made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant sought to rely in that case was that be was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by it in its pleadings."
50. The Apex Court in the case of SRI VENKATARAMANA DEVARU AND OTHERS V. THE
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 STATE OF MYSORE AND OTHERS, held at page 905 as under:
"xxxx The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding."
51. The Apex Court in the case of NEDUNURI KAMESWARAMMA VS. SAMPATI SUBBA RAO at page 213 held as under:
"On the first point, we do not see how the suit could be ordered to be dismissed, for, on the facts of the case, a remit was clearly indicated. The appellant had already pleaded that this was jeroyti land, in which a patta in favour of her predecessors existed, and had based the suit on a kadapa, which showed a sub-tenancy. It was the respondent who had pleaded that this was a Dharmila inam and not jeroyti land, and that he was in possession of the kudiwaram rights though his predecessors for over a hundred years, and had become an occupancy tenant. Though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposed to each other were of Dharmila Sarvadumbala inam as against a Karnikam service inam. The evidence which has been led in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service inam. No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We therefore, proceed to consider the central point in the case, to which we have amply referred already."
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017
52. In KUNJU KESAVAN vs. M.M.PHILIP, this Court has stated (as summarized in the headnote at p.
637):
"The parties went to trial, fully understanding the cenral fact whatever the succession has laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act". The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the High Court."
53. The Apex Court in the case of BHAGWATI PRASAD vs. CHANDRAMAUL held at para 10 as under:
"10. ... ... It is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question, was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017
54. the Apex Court in the case of RAM SARUP GUPTA (DEAD) BY L.RS., vs. BISHUN NARAIN INTER COLLEGE AND OTHERS at paras-6 and 7 it is held as under:
"6. ... ... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
55. The Apex Court in the case of KALI PRASAD AGARWALLA (DEAD) BY LRS. AND OTHERS vs. M/S.BHARAT COKING COAL LIMITED AND OTHERS held at paras-19 and 20 as under:
"19. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 evidence should not be looked into. This is a well accepted principle."
56. The Apex Court in the case of HARI SINGH vs. KANHAIYA LAL, at para-16 held as under:
"16. ... ... It is not in dispute that there is pleading that the disputed premises was sub-let. The detail, if any, can be supplemented through evidence. ... ..."
57. The Apex Court in the case of KONDA LAKSHMANA BAPUJI vs. GOVT. OF A.P. AND OTHERS, at para-70 held as under:
"70. ... ... It is a settled position that if the parties have understood the pleadings of each other correctly, an issue was also framed by the Court, the parties led evidence in support of their respective cases, then the absence of a specific plea would make no difference."
21. It is also relevant to follow the dictum of the Hon'ble Supreme Court in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and others, reported in (1974) 1 SCC 242 wherein, at paragraph No.27 has held as follows:
"27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."
(Emphasis supplied)
22. Following the declaration of law made by the Hon'ble Apex Court in the aforementioned case and the recitals in the sale deed (Ex.D.11) would indicate that, the said schedule property has been acquired by late Chidamber upon his own earnings and same cannot be considered as part of the joint family property of Ganapati Thimmayya Hegade. Thus, we are of the view that the plaintiffs are not entitle for relief as sought for in the suit, claiming share in land bearing Survey No.48/3 of Kondalagi Village of Sirsi Taluk. Though appellants have filed
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 Application in I.A.No.1/2022, producing the documents, on careful examination of those documents, there is no foundation in the pleadings regarding urging that those documents were not available with plaintiffs. It is also pertinent to mention that, pleadings in para 3 of plaint is self explanatory and discussed supra.
23. It is also to be noted that, the defendant Nos.1, 2 and 6 have stated in the written statement that the Schedule D property is the self acquired property of defendant No.5 as the P.W.1 himself admitted in the evidence that the said schedule property has been granted to defendant No.5. However, perusal of Ex.D.3 and Ex.D.4 - mutation entry would indicate that the defendant No.5 had purchased the residential plot from Karnataka Housing Board as per registered sale deed dated 21.01.2003 and as there is no relief claimed by the plaintiff, challenging the said registered sale deed dated 21.01.2003 and therefore, the finding recorded by the trial Court is just and proper.
24. Having considered the submission made by the learned counsels for the parties and after re-appreciating the
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NC: 2024:KHC-D:5400-DB RFA No. 100174 of 2017 material on record in terms of scope and ambit of Order 41 Rule 31 of CPC, we are of the view that, plaintiffs have not made out a case for interference in this appeal. The points for determination made above favours the defendants.
In the result, appeal fails, consequently I.A.No.1/2022 does not survive for consideration, accordingly rejected.
Sd/-
JUDGE Sd/-
JUDGE SVH, SB List No.: 1 Sl No.: 39