Karnataka High Court
Sri Gopal Rao S/O Bondade Khandappa vs Sathyendra Rao Bondade, Since Deceased ... on 17 May, 2017
RFA NO.1167/2006(PAR)
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MAY 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL NO.1167/2006 (PAR)
BETWEEN:
1. Sri.Gopal Rao,
S/o Bondade Khandappa,
Since deceased by his LRS
1(a) Sri.Praful Bondade,
S/o Gopal Rao Bondade,
C/o: Nagaraj Rao Bondade,
Aged about 54 years,
R/at 13, Laxmi road, 6th Cross,
Shanti Nagar, Bangalore-27.
1(b) G.Pramod Bondade, P.A.Holder
S/o Gopal Rao Bondade,
Aged about 52 years,
R/at 383/1,4th main, 8th Cross,
P.J.Extension, Davangere.
1(c) Sri.Sunil Bondade,
S/o Gopal Rao Bondade,
Aged about 50 years,
C/o Renuka Nilaya (up stairs)
R/at 3129, 9th main III Cross,
MCC "B" Block, Davangere.
1(d) Smt.Vidya Ramesh Maladkar,
D/o Gopal Rao Bondade,
RFA NO.1167/2006(PAR)
2
Aged about 45 years,
C/o K.Mallajppa (Upstair)
R/at 4th Main, 9th Cross,
Near Vishweshwaraiah Park,
P.J.Extension, Davangere.
1(e) Sri.Arun Bondade,
S/o Gopal Rao Bondade,
Aged about 48 years,
R/at ITC Factory,
Devanahalli, Bangalore. ....Appellants
(By Sri.B.V.Prakash Angadi, Adv.,)
AND:
1. Sathyendra Rao Bondade,
Since deceased by his LRS.
1(a) Prakash,
S/o Sathyendra Bondade,
Major,R/o #10/16,
New Thimmiah Road, Cox Town,
Jeevanahalli, Bangalore-5.
1(b) L.V.Prabha,
Since deceased by his LRS.
R1(b)(i) Vithal Rao Lokerey,
S/o Not known,
Aged about 79 years.
R1(b)(ii) Pratul Kumar Lokerey,
S/o Vithal Rao Lokerey,
Aged about 57 years.
R1(b) (iii) Pramod Kumar Lokerey,
S/o Vithal Rao Lokerey,
RFA NO.1167/2006(PAR)
3
Aged about 55 years.
All are R/at #71-1-388/46,
Sree Lakshmi Nagar,
Near Saibaba Nagar,
Hyderabad-500 569.
1(c) A.V.Sabitha,
C/o A.V.Suknya Kumar,
Major, K.H.Bhavasar & Co.,
10th Malavalli, Ramrao line,
Bangalore-05.
2. S.Vijaya Bondade,
S/o Sathyendra Rao,
Major, R/o #383/2, 4th main,
8th Cross, P.J.Extension, Davangere-2.
3. B.Balvanta Rao,
S/o Bondade Khandappa,
Aged about 79 years,
P.J.Extension, Davangere-2.
4. Nagaraj Rao Bondade,
S/o Bondade Khandappa,
Aged about 75 years, R/o.13,
Laxmi Road, 6th Cross,
Shanti Nagar, Bangalore-27. ....Respondents
(By Sri.P.H.Virupakshaiah, Adv., for R1(A&C),R1(B)
(1to3) & R2. R3 dispensed with vide order dt:28.03.2008,
R4-Nagaraj Rao Bondade served.)
This RFA is filed under section 96 of CPC, against the
Judgment and Decree dt:17.06.2004 passed in
O.S.No.385/2000 on the file of the Prl. Civil Judge, (Sr.Dn.)
RFA NO.1167/2006(PAR)
4
Davangere, partly decreeing the suit for partition and
possession.
This appeal having been heard and reserved, coming on
for Pronouncement this day, the Court delivered the following:
JUDGMENT
This appeal arises out of the judgment and decree dated 17.06.2004 passed by the Principal Civil Senior Judge, Davanagere in O.S.No.385/2000. By the impugned judgment and decree the trial Court has decreed the suit for partition and separate possession of ¼ share of plaintiff No.1 in the suit property and rejected the claim for mesne profits.
2. The subject matter of the suit is the site measuring 30'x 100' with a RCC building constructed thereon bearing door No.383 situated in 4th Main, 8th Cross, P.J. Extenstion, Davanagere. The appellant is the second defendant in the suit. Sathyendra Rao Bondade and his son Sri S.Vijaya Bondade (respondent Nos.1 and 2) filed O.S.No.385/2000 against the appellant Gopala Rao, respondent Nos. 3 and 4, Sri B.Balvanta Rao and Sri RFA NO.1167/2006(PAR) 5 Nagaraj Rao Bondade. Sri B.Balvanta Rao and Sri Nagaraj Rao Bondade are defendant Nos1 and 3 respectively before the trial Court. Pending the suit, first plaintiff Sathyendra Rao Bondade died and his daughters respondents No.1(b) and 1(c) were brought on record as his legal representatives along with the second plaintiff.
3. The case of the plaintiff in brief is as follows:
Plaintiff No.1, defendant Nos.1 to 3 along with their father Bondade Khandappa constituted the joint hindu family. In course of time Plaintiff No.1 and defendant Nos. 1 to 3 went on separating from the family executing release deeds in favour of their father. Their father Bondade Khandappa retained the suit property as his share in the family properties. He died on 10.04.1974 intestate. After his death Smt.Krishna Bai, mother of plaintiff No.1 and defendants continued to reside in the said property. She also died intestate in June 1994. Plaintiff No.1 and defendant Nos.1 to 3 being the heirs of Bondade Khandappa are entitled to equal ¼ share in the suit RFA NO.1167/2006(PAR) 6 property. Since defendant No.2 had sold the house allotted to his share, on the death of Smt. Krishna Bai, he was allowed to occupy the said house and reside their. Despite several requests of the plaintiffs, defendants failed to effect the partition and hand over the possession of the 1st plaintiffs' share in the suit property.
4. As against that, the second defendant started to make unauthorized alterations and constructions over the suit property. Therefore, plaintiff No.1 got issued a notice dated 29.05.2000 demanding partition of the suit property by meets and bounds. Despite that the defendants did not effect the partition. Hence, the suit.
5. The trial Court records indicate that on service of suit summons defendant Nos. 2 and 3 appeared through their counsel but did not file the written statement. Defendant No.1 though served remained absent. Hence he was set exparte. In support of the case of plaintiffs, plaintiff No.2 got examined himself as PW.1 and got RFA NO.1167/2006(PAR) 7 marked the documents as Exs.P.1 to P.9. Defendants neither cross examined PW.1 nor lead their evidence. Trial Court record show that it heard the learned counsel for both the plaintiffs and the learned counsel for defendant Nos.2 and 3 submitted that he has no instructions in the matter. Thereafter the Trial Court by impugned judgment decreed the suit of the plaintiff for partition and separate possession of ¼ share of the plaintiffs and dismissed the plaintiffs claim for mense profits. The appellants the heirs of defendant No.2 challenged the said judgment and decree in this appeal.
6. Sri B.V. Prakash Angadi learned counsel for the appellants contends that the second defendant was suffering from terminal disease of cancer and was bed ridden for a long time. He further contends that the plaintiffs represented to the second defendant that they withdraw the suit and by assuring so they themselves engaged a counsel for the second defendant and managed to get exparte decree. He further contends that Smt. RFA NO.1167/2006(PAR) 8 Krishna Bai, the mother of the parties was the absolute owner of the suit property and she has executed a Will bequeathing the same in favour of defendant No.2 and his son appellant No.1(a).
7. Sri V. H. Virupakshaiah learned counsel for the respondents contends only the theory of plaintiffs taking advantage of illness of second defendant the plaintiff himself engaging an advocate for the defendant No.2 and managing to get exparte decree is invented only during the arguments. He contends that no such averments are made either in the grounds of the appeal, in the affidavit filed in support of the application for condonation of delay. He contends that defendant No.2 or any other defendant did not file any application before the trial court under Order 9 Rule 13 C.P.C to set aside the exparte judgment on such ground and in this appeal is filed under Section 96 C.P.C. the appellants have to succeed on the merits of the case and it is not open for them to contend before this Court that they did not contest the suit for sufficient reasons or RFA NO.1167/2006(PAR) 9 the reasons beyond their control. Therefore the decree is set aside.
8. In the light of the above said rival contentions the question that falls for consideration of this Court is "whether the impugned judgment of the trial Court is sustainable in law and on facts?"
9. There is no dispute between the parties that first appellant Gopal Rao, respondent No.1 Satyendra Rao Bondade (Plaintiff), respondent Nos.3 and 4 Sri B.Balvanta Rao and Sri Nagaraj Rao Bondade are the full brothers. The plaintiff sought partition and separate possession of his 1/4th share in the suit property on the ground that in the family partition between their father Bondade Khandappa had retained the suit property for his share. He claimed that Bondade Khandappa died intestate therefore on his death all the sons are entitled to equal 1/4th share in suit property.
RFA NO.1167/2006(PAR) 10
10. Defendant No.1 though served remained absent and set exparte. Defendant Nos.2 and 3 though appeared through their counsel did not file written statement. It is true that the appellants have not filed any application under Order 9 Rule 13 C.P.C. Therefore this court has to see whether the trial Court was justified in holding that the plaintiffs have proved the case pleaded by them.
11. The Apex Court in the judgment in Ramappa Gowda -vs- Chandre Gowda dead by LR's and another in Civil Appeal No.3710/2012 arising out SLP (C) 33361/2012 DD 23.4.2012 at para 14 has held as follows "14........ We wish to reiterate that in a case where the written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 C.P.C., and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted a judgment and decree could not possibly be asked without requiring him to prove the fact pleaded in the plaint. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass the judgment and decree against RFA NO.1167/2006(PAR) 11 the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an exparte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy.......". (emphasis supplied by me.)
12. In the case on hand as per the pleadings of the plaintiffs themselves the suit property had fallen to the share of his father Bondade Khandappa and on his death it devolved upon the sons of the children of Bondade Khandappa. In the plaint, plaintiff himself said that defendant No.2 began to make alterations in the suit schedule property without his consent and the consent of other defendants. That itself indicates that the second defendant was challenging the claim of the plaintiffs. Therefore they were required to prove the facts that the property had fallen to the share of Bondade Khandappa and he was the absolute owner of the same.
RFA NO.1167/2006(PAR) 12
13. To prove their case the evidence adduced by the plaintiffs is Ex.P.1, the copy of the notice, Ex.P.2, reply of defendant No.1 to Ex.P.1, Ex.P3 to Ex.P.5 are the postal acknowledgments. Out of them Exs.P.3 and P.4 are the one addressed to defendant Nos.3 and 4 respectively. Ex.P.3 the postal acknowledgment card addressed to Nagaraj Rao Bondade is signed by one B. Saroja Devi. In Ex.P.4 signature is not clear. Ex.P.5 is related to defendant No.1 and he is not at issue with the plaintiff.
14. Ex.P.6 purports to be the endorsement issued by the Commissioner of the Town Municipality Davanagere on 19.4.1987 to the effect that on the application of plaintiff and defendant Nos.1 to 3 for change of katha of the suit property the same is changed in their names. Even the said endorsement is issued with a clause that the said change of katha is subject to any litigation between the parties. The plaintiffs did not lead any evidence to show that the defendant Nos. 1 to 3 have given application for change of the katha.
RFA NO.1167/2006(PAR) 13
15. The basic fact the plaintiff was required to prove was that at the time of his death Bondade Kondappa was the owner of the property and the katha stood in his name. In the absence of that basic proof the oral evidence of the PW.1 is of no help.
16. The appellants contend that even during the life time of Bondade Kandappa, he and his sons gifted the suit property in favour of Krishna Bai under the registered gift deed dated 24.04.1957. In this appeal they further contend that Krishna Bai being the absolute owner has bequeathed the said property in favour of plaintiff No.2 and his brother under a Will. To substantiate their contention the appellants under I.A. No.3/2016 seek to produce the said gift deed and Will. Whether that additional evidence shall be permitted or not is a different issue.
17. The primary question is whether on the basis of the evidence adduced before it, whether the trial Court could have decreed the suit. The only reason the trial RFA NO.1167/2006(PAR) 14 Court for assigns for decreeing the suit is that the plaintiff has produced the katha endorsement, tax paid receipts and the notice and PW.1 has deposed in support of the same. The trial Court further says that since the defendants do not dispute that the suit has to be decreed.
18. The trial Court failed to note that the plaintiffs fail to produce any evidence in support of the ownership of the Bondade Kandappa himself. The trial Court failed to note that even in Ex.P1 the averment regarding the title of Bondade Kandappa is not forthcoming. It is only said that defendant Nos. 1 to 3 and plaintiff 1 are the divided brothers and except property No.383/1, all other properties were divided and the suit property was in occupation of their mother. Even in Ex.P1 it is not said that Bondade Kandappa was the owner or the mother of the plaintiff No.1 was the owner.
19. Only in the plaint the plaintiffs introduce the case the theory that property was retained by Bondade RFA NO.1167/2006(PAR) 15 Khandappa as his share and on his death the property devolves on his sons. Even assuming that to be true, admittedly Krishna Bai died after Bondade Khandappa. It is not said whether Bondade Khandappa and Krishna Bai had any other daughters. Even in that event the property first devolves on the children (sons and daughters) and wife of Bondade Khandappa. On the death of Krishna Bai again the property devolves on her children. Having regard to all these facts the judgment and decree of the trial Court is unsustainable. The plaintiffs have to be given a chance to prove their case. For that matter even without reference to the document produced in the I.A. No.3/2016 the matter requires to be remanded.
20. It is to be noted that there was a delay of 2 years in filing the appeal. In the application filed for condonation of delay the appellants set up the ground of medical condition of the first appellant. This Court accepted the same and condoned the delay. When that is accepted, his contention that he could not file the written RFA NO.1167/2006(PAR) 16 statement before the trial Court due to his health condition has to be accepted. Therefore, the appellants have to be given a chance to file their written statement.
21. It is no doubt true that the suit is of the year 2000. The plaintiffs are struggling for 17 years to get the matter adjudicated. For such delay of 17 years is due to the in-action on the part of the appellants and has to be compensated sufficiently. When the similar circumstance arise before the Supreme Court decision referred to supra , the Apex Court imposed the cost of Rs.25,000/-to the appellants to compensate the delay caused. Therefore, in this case also the appeal deserves to be allowed on payment of cost of Rs.25,000/-. Therefore the appeal is allowed on payment of cost of Rs.25,000/. The impugned judgment and decree of the trial Court is hereby set aside. The matter is remanded to the trial Court for fresh disposal.
RFA NO.1167/2006(PAR) 17
22. The appellants shall deposit the cost on or before 01.06.2017 before the trial Court. The parties shall appear before the trial Court on 01.06.2017 without any further notice from the trial Court. The appellant shall file the written statement within one week from the date of their appearance before the trial Court.
23. The trial Court shall give opportunity to both the parties to put forth their case and dispose of the matter as expeditiously as possible at any rate not beyond three months from 01.06.2017. Appellants are entitled to such opportunity only on compliance of the conditions regarding deposit of cost and filing of the written statement. Draw decree accordingly.
Having regard to the aforesaid facts it is open to the parties to adduce evidence before the trial Court. I.A. No.3/2016 is disposed of accordingly.
Sd/-
JUDGE HR