Karnataka High Court
Vijaykumar Parashwanath Lagamannavar vs Shri. Suresh Parshwanath Lagamannavar on 10 July, 2023
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NC: 2023:KHC-D:6913-DB
RFA No. 100370 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100370 OF 2017 (PAR/POS)
BETWEEN:
VIJAYKUMAR PARSHWANATH LAGAMANNAVAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: DEVALAPUR-591102,
TALUKA: BAILHONGAL, DIST: BELAGAVI.
...APPELLANT
(BY SMT. SURABHI KULKARNI FOR SRI. CHETAN MUNNOLI,
ADVOCATE)
POOJA AND:
DEELIP
SAVANUR 1. SHRI. SURESH PARSHWANATH LAGAMANNAVAR,
Digitally signed by POOJA
DEELIP SAVANUR
AGE: 47 YEARS, OCC: AGRICULTURE,
Location: HIGHCOURT OF
KARNATAKA-DHARWAD
R/O: DEVALAPUR-591102,
BENCH
Date: 2023.07.18 15:56:53
+0530
TALUKA: BAILHONGAL, DIST: BELAGAVI.
2. SHRI. HIRACHAND PARSHWANATH
LAGAMANNAVAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: DEVALAPUR-591102,
TALUKA: BAILHONGAL,
DIST: BELAGAVI.
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NC: 2023:KHC-D:6913-DB
RFA No. 100370 of 2017
3. SMT JANAKIBAI
W/O. PARSHWANATH LAGAMANNAVAR,
AGE: 77 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVALAPUR-591102,
TALUKA: BAILHONGAL, DIST: BELAGAVI.
4. SHRI. ASHOK PARSHWANATH LAGAMANNAVAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: DEVALAPUR-591102,
TALUKA: BAILHONGAL, DIST: BELAGAVI.
5. SHRI. SHRENIK PARSHWANATH LAGAMANNAVAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: DEVALAPUR-591102,
TALUKA: BAILHONGAL, DIST: BELAGAVI.
6. SMT. PREMAVATHI W/O. MAHAVEER JAINAR,
AGE: 43 YEARS, OCC: HOUSEHOLD,
R/O: 7TH CROSS, BASAVNAGAR,
BAILHONGAL-591102, DIST: BELAGAVI.
7. BHARTESH PARSHWANATH LAGAMANNAVAR,
AGE: 39 YEARS, OCC: AGR & SERVICE,
R/O: 7TH CROSS, BASAVNAGAR,
BAILHONGAL-591102, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. LAXMAN T. MANTAGANI, ADV. FOR R1 TO R3,
R6 & R7,; NOTICE TO R4 SERVED;
NOTICE TO R5 DISPENSED WITH)
---
THIS RFA IS FILED UNDER SEC. 96(1) READ WITH
ORDER XLI RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT
AND DECREE DTD:25.07.2017 PASSED IN O.S.NO.93/2014 ON
THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING THIS
DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:6913-DB
RFA No. 100370 of 2017
JUDGMENT
This appeal is filed challenging the judgment and preliminary decree dated 25.07.2017 passed by the Senior Civil Judge, Bagalkote, in O.S.No.93/2014.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant is defendant No.3. Respondents No.1 and 2 are the plaintiffs, respondents No.5 to 7 are the defendants.
3. The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that, Parshwanath was the original propositus. He has survived by his wife Janakibai and a daughter and six sons. Suit schedule properties are the ancestral properties, possessed and enjoyed by the heirs of original propositus and no partition took place in the same in between the parties. It is alleged that the propositus purchased the area of measuring 01 acre bearing RS No.29/2A from Prakash Irappa Hanabaratti on 30.04.1996 and purchased -4- NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 the remaining area measuring 01 acre 01 gunta on 15.04.1998. The lands at RS No.34/2A and 78/2 had fallen to the share of father of the plaintiffs and defendants in the partition that took place between him and his brothers. Suit properties are still standing in the name of the father of plaintiffs and defendants. The defendants are not co-operating in getting entered their names in the record of rights and also to effect partition in the same. Hence claimed to have demanded for partition, but the defendants refused to effect partition. Hence cause of action arose for the plaintiffs to file a suit for partition and separate possession.
4. Defendants filed written statement contending that the family own house properties at Devalapur village bearing G.P.No.405, 407B, 408 and house cum shop bearing CTS No.2646-H at Bailhongal and the deceased father of the plaintiffs and defendants, out of his family income purchased R.S.No.29/3 and 34/2B measuring two acres 1 gunta and 13 guntas respectively situated at -5- NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 Devalapur village in the name of plaintiffs. The said properties are not brought to the hotchpot and hence the suit for partial partition is not maintainable.
5. Defendant No.6 filed written statement contending that his father has effected partition in the family properties during his life time and that the plaintiffs have purchased the land bearing R.S.No.29/3 and 34/2B. In the said properties neither defendant No.6 nor other defendants have got any right, title, interest. The plaintiffs have purchased the said properties out of their own income. Hence he has no objection to decree the suit and is ready to pay the court fee for his share. Defendants No.1 and 5 filed memo to adopt the written statement of defendant No.6.
6. The trial Court based on the pleading of the parties framed the following issues:
i. Whether the plaintiffs prove that, themselves and defendants are the joint members?-6-
NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 ii. Whether the plaintiffs further proves that, the suit schedule properties are the ancestral and joint family properties as contended in the plaint?
iii. Whether the plaintiffs prove that, they are entitle 1/7th share in all the suit schedule properties?
iv. Whether the plaintiffs are entitle for the relief as claimed in the plaint.
v. What order or decree?
Addl. Issue No.(i): Whether the defendant no.2 prove that suit of the plaintiff is bad for non inclusion of all the joint family properties as contended in Para No.4 of the written statement?
7. In support of the case of the plaintiffs, plaintiff No.2 was examined as PW1 and got marked documents at Exs. P1 to P15. On behalf of the defendants, defendant No.5 was examined as DW1, defendant No.3 is examined as DW2 and got marked documents at Exs. D1 to D6. The trial Court after considering the oral and documentary evidence, answered issues No.1 to 4 in the affirmative and additional issue No.1 in the negative and consequently, -7- NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 decreed the suit of the plaintiffs, declaring that the plaintiffs and defendants No.1 to 6 have got 1/8th share in suit survey No.29/2A, survey No.34/2A and survey No.78/2 situated at Devalapur village and further plaintiffs are entitled for partition and separate possession of their 1/8th share in the suit properties. Defendant No.3 aggrieved by the judgment and decree passed by the trial Court, has filed this appeal. Defendant No.3 has also filed an application in I.A.1/2022 for production of additional evidence.
8. Learned counsel for defendant No.3 submits that the trial Court has not properly appreciated the evidence placed on record. She also submits that the trial Court in para 26 of the impugned judgment recorded that, neither the plaintiffs nor the defendants produced copy of sale deeds in respect of CTS No.2646 purchased by their father. She also submits that the plaintiffs have not produced any evidence to show that the said properties are purchased out of their own income and further -8- NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 defendants have established that, prior to purchasing of the said suit schedule properties, plaintiffs and defendants were having nucleus and the said properties were purchased in the name of plaintiffs and the said properties were not included in the suit. She submits that, other properties purchased in the name of plaintiffs were not included in the suit schedule properties. Hence the suit for partial partition is not maintainable. The trial Court without considering the said aspect has decreed the suit of the plaintiffs. Hence she submits that defendant No.3 has produced the additional documents, which goes to the root of the case. The said documents are essential for the purpose of deciding the dispute between the parties. She submits that the said documents were not in the custody of defendant No.3 and in spite of due diligence, defendant No.3 could not produce the documents before the trial Court. Hence she prays to allow the application and permit defendant No.3 to produce the documents and to lead evidence. Hence prayed to allow the appeal. -9-
NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017
9. Per contra, learned counsel for the plaintiffs submits that the suit properties are purchased by the plaintiffs out of their own income. Plaintiffs used to do coolie work in the land belonging to others in the village and out of the said earnings, the suit properties are purchased. He submits that the plaintiffs have no objection to allow the application and to remit the matter back to the trial Court. His Submission is placed on record.
10. Heard the learned counsel for the parties and perused the records. The points that arise for our consideration are:
i. Whether the trial Court was justified in disposing of the suit without properly appreciating the material placed on record by the parties?
ii. Whether the trial Court was justified in not
considering the defence taken by the
defendants in para No.4 of the written
statement that a suit for partial partition is not maintainable?
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 iii. Whether defendant No.3 has made out grounds to allow I.A.1/2022?
iv. What order? Re:Point No.1
11. Plaintiff No.2 is examined as PW1 and he has reiterated the plaint averments in the examination-in-
chief. In support of his contention, has produced documents marked as Exs. P1 to P15. Ex.P1 is the RTC extract in respect of land bearing Sy.No.29/2A, stands in the name of Hanabaratti in the year 1996-97 till 2001-02; Ex.P2 is the RTC extract of land bearing Sy.No.29/2A from 2013-14 till 2013-14, stands in the name of father of plaintiffs and defendants; Ex.P3 is the RTC extract of land bearing Sy.No.34/2A, stands in the name of Hanabaratti; Ex.P4 is the RTC extract of land bearing Sy.No.34/2A, stands in the name of father of plaintiffs; Ex.P5 is the RTC extract of land bearing Sy.No.78/2, stands in the name of father of plaintiffs; Ex.P6 is the copy of mutation order, which discloses that land bearing survey No.67/2
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 measuring 6 acres 21 guntas, 220/1 measuring 9 acres 11 guntas, 237/4B measuring 1 acre 24 guntas stands in the name of Mallappa Gangappa Lagamannavar, 78/2 measuring 9 acres 01 guntas stands in the name of father of plaintiffs and survey Nos.258/1B+2 measuring 4 acres 18 1/2 guntas, 258/2 measuring 1 acre 22 guntas, 276/1 measuring 1 acre 21 guntas, 276/5 measuring 3 acres 06 guntas, 277/11 measuring 01 acre 28 guntas, 277/12 measuring 34 guntas, 316/2 measuring 24 guntas and 44/5 measuring 2 acres 11 guntas, stands in the name of Nemichandra Gangappa Lagamannavar; Ex.P7 is the original registered sale deed dated 15.04.1998, in respect of land bearing Survey No.29/2A measuring 02 acres 01 guntas and 34/2A measuring 17 guntas, which is purchased in the name of father of plaintiffs; Ex.P8 is the registered sale deed dated 30.04.1996, in respect of land bearing Sy.No.29/2A measuring 02 acres 01 guntas, which was purchased in the name of father of the plaintiffs; Ex.P9 is the property extract in respect of VPC No.406; Ex.P10 is the property extract in respect of property
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 bearing VPC No.407/B; Ex.P11 is the property extract in respect of VPC No.408; Ex.P12 is the endorsement issued by the Gram Panchayat; Ex.P13 is the endorsement issued by Gram Panchayat dated 06.11.2016; Ex.P14 is the death certificate of father of plaintiffs, who died on 17.11.2008; Ex.P15 is the copy of original registered sale deed dated 12.04.2000 in respect of land bearing Sy.No.29/3 measuring 02 acres 01 guntas and Sy.No.34/2B measuring 13 guntas.
12. The defendants have taken a defence that the suit filed by the plaintiffs is not maintainable as the plaintiffs have admitted that the family owns a house property bearing VPC No.405, 407/B and 408 at Devalapur village. Further, property bearing CTS No.2646-H situated at Bailhongal was purchased in the name of deceased Parshwanath, under registered sale deed dated 16.12.1994. Plaintiffs have not pleaded in the plaint and have not led any evidence regarding the aforesaid properties.
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017
13. Further, defendant No.6 in his cross- examination did not deny the fact that the property bearing CTS No.2646-H is the joint family property. Further, he pleaded inability to state when the partition took place in respect of house properties situated at Devalapur. Further, CTS No.2646-H of Bailhongal having been purchased by the propositus on 16.12.1994, is required to be partitioned. None of these properties were included in the previous partition. The plaintiffs have not clearly pleaded that the suit properties are the ancestral properties and the same are in joint possession of themselves and defendants. Though it is the case of the plaintiffs that there was a partition effected between the parties and possession was delivered in respect of the lands which was allotted to their share, respondent No.1 purchased R.S.No.29/3 and 34/2B of Devalapur and the said sale deed is in the name of the plaintiffs, if really partition took place in the family properties, the suit for partition would not be maintainable. Further, from the perusal of impugned judgment, the trial Court has not
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 properly shown the details of the documents got marked by the plaintiffs in the Annexure. The trial Court without properly appreciating the material on record and without applying its mind has proceeded to pass the impugned judgment.
14. As per Order 20 Rule (1) CPC, the trial Court is required to assign reasons while answering all the issues. As observed above, the trial Court has not considered the material on record and has not properly answered issues. Hence the matter requires reconsideration by the trial Court.
15. As per Order 20 Rule (5) CPC, the Court shall state its finding with the reasons upon each separate issue. The judgment and decree passed by the trial Court is not in consonance with Order 20 Rule(5) CPC.
16. In view of the above discussion, we answer points No.1 in the negative, holding that the trial Court
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 has not properly appreciated the material placed on record by the parties.
Re:Point No.2
17. The defendants have filed written statement, in para 4 of the written statement, the defendants have taken a specific contention that the plaintiffs have not included agricultural lands bearing RS No.29/3 measuring 02 acres 01 guntas and RS No.34/2 measuring 13 guntas and it is contended that the said properties were purchased out of the income of the joint family and the income of the lands are thrown into the common hotchpot of the joint family and the same are treated by all members of the joint family as joint family properties. The said properties have not been included by the plaintiffs in the suit schedule properties. Further the trial Court has not answered these points in the impugned judgment. The trial Court without considering the defence of the defendants at paragraph 4 of the written statement, has proceeded to pass the impugned judgment.
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017
18. In view of the above discussion, we answer point No.2 in the negative.
Re:Point No.3:
19. Defendant No.3 has filed I.A.1/2022 for production of additional evidence and in support of the application, has filed an affidavit contending that the plaintiffs filed a suit for partition and separate possession in respect of the suit schedule properties. Defendants No.1 and 2 filed written statement contending that the plaintiffs have not included all the ancestral joint family properties in the suit schedule properties, which are the land bearing RS No.29/3 measuring 02 acres 01 gunta and RS No.34/2B measuring 13 guntas, situated in Devalapur village and house properties bearing VPC No.405, 407B and 408 and other open spaces bearing G.P.No.371 of Devalapur Village. It is stated that the land bearing RS No.29/3 and 34/2B were purchased by the father of the plaintiffs and defendants No.2 to 6 in the name of plaintiffs No.1 and 2 and by virtue of the registered sale deed, the
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 said suit schedule properties are the joint family properties of plaintiffs and defendants. It is also contended that the father of the plaintiffs and defendants sold one of the ancestral property on 08.04.1999 i.e., within one year from the date of execution of registered sale deed. The father of plaintiffs had purchased the said lands bearing RS No.29/3 and RS No.34/2B in the name of the plaintiffs No.1 and 2. The plaintiffs have not produced any records to show that they are having separate source of income for purchasing the said properties.
20. The general principle is that, the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 of CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence.
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances, in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature.
21. The Hon'ble Apex Court in the case of Sanjay Kumar Singh Vs. The State of Jharkhand, in Civil Appeal No.1760 of 2022, held that;
"4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test,
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."
22. From the perusal of the additional documents proposed to be produced by defendant No.3, requires evidence sought to be adduced to enable pronouncement of the judgment. Learned counsel for the plaintiffs submits no objection to allow the application and to remand the matter to the trial Court. In view of the consent made by the learned counsel for the plaintiffs and also perusing the reasons assigned in the affidavit and the law laid down by the Hon'ble Apex Court in Sanjay Kumar Singh case (supra), defendant No.3 has fulfilled the conditions mentioned in Order 41 Rule 27 CPC.
23. In view of the above discussion, we answer point No.3 in the affirmative.
Re:Point No.4:
24. In view of answering points No.1 to 3, we proceed to pass the following:
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NC: 2023:KHC-D:6913-DB
RFA No. 100370 of 2017
ORDER
i. Appeal is allowed.
ii. Judgment and preliminary decree dated
25.07.2017 passed by the Senior Civil Judge, Bagalkote, in O.S.No.93/2014, is set aside.
iii. I.A.1/2022 filed by defendant No.3 is allowed.
Additional documents are taken on record. iv. The matter is remitted to the trial Court with a direction to provide an opportunity to both the parties to adduce further evidence, if so advised, and pass appropriate judgment in accordance with law.
v. Parties are directed to appear before the trial Court on 14.08.2023 without awaiting any notice from the trial Court.
It is made clear that this Court has not made any observation on the merits of the documents
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NC: 2023:KHC-D:6913-DB RFA No. 100370 of 2017 permitted to be brought on record as additional evidence. However, the trial Court to deal with the same in accordance with law and on its own merits after the same are proved by the defendants. All the contentions of the parties are kept open.
Sd/-
JUDGE Sd/-
JUDGE gab/ct-abn List No.: 1 Sl No.: 9