Remanded

John Sukrutharaj v. R Divyeshwari

Karnataka HC11 Oct 2013RSA/1584/2009

Case brief

AI extract

What is this about?

The Single Judge allowed the Second Appeal in a partition suit. The Court held that parties should produce property extracts under Section 132 of the Karnataka Land Revenue Act. It remitted the matter to the First Appellate Court to record additional evidence per Order 41 Rule 28 CPC before final disposal.

What did the court decide?

Appeal allowed, First Appellate Judgment set aside, matter remitted to Lower Appellate Court to record evidence and dispose of appeal.

John Sukrutharaj Vs R Divyeshwari — Partition | Karnataka HC (2013)

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RSA 1584/2009

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 11^th DAY OF OCTOBER, 2013

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BEFORE

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THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.1584/2009

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BETWEEN

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JOHN SUKRUTHARAJ S/O. LATE DORESWAMY AGED ABOUT 62 YEARS R/AT B/722, 2ND MAIN, 4TH CROSS BAHUBALI NAGAR JALAHALLI,BANGALORE-13.

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SMT. SAROJA MARY D/O LATE DORESWAMY AGED ABOUT 80 YEARS R/AT B/722, 2ND MAIN, 4TH CROSS BAHUBALI NAGAR, JALAHALLI, BANGALORE 13.

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SMT D.MARTHAMMA D/O LATE DORESWAMY AGED ABOUT 80 YEARS R/AT NO.4039, 9TH CROSS, GANDHINAGAR, MYSORE 570 004.

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SMT.VIJAYA W/O LATE SHAMANNA AGED ABOUT 68 YEARS D/O LATE DORESWAMY R/AT NO.4039, 9TH CROSS GANDHINAGAR, MYSORE 570 004.

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RSA 1584/2009

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SMT.PUSHPA W/O JAYAPPA AGED ABOUT 65 YEARS D/O LATE DORESWAMY R/AT NO.4039, 9TH CROSS GANDHINAGAR, MYSORE 570 004.

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SUNDARA SUSANNA @ SUNDARAMMA SINCE DEAD BY HER LR’S

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6(a) SUMIDHA SUZAN D/O. SUNDARA SUSANNA @ SUNDARAMMA AGED ABOUT 54 YEARS

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6(b) WILLIAM STEPHEN D/O.SUNDARA SUSANNA @ SUNDARAMMA AGED ABOUT 52 YEARS

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6(c) ANITHA SUZAN D/O. SUNDARA SUSANNA @ SUNDARAMMA AGED ABOUT 50 YEARS

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6(d) WILLIAM GEORGE S/O. SUNDARA SUSANNA @ SUNDARAMMA AGED ABOUT 46 YEARS

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6(a) TO 6(d) ARE R/AT NO.1021, 8^TH CROSS, SUNNDAKERI, K.R.MOHALLA MYSORE – 570 004

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SMT.JAYAMMARAJ

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SINCE DIED BY HER LR’S

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7(a) SHEILA PETER W/O PETER

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D/O. JAYAMMARAJ AGED ABOUT 50 YEARS R/AT NO.98/6, H.K.P ROAD,

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-3RSA 1584/2009 OPP. TO C.S.I HOSPITAL SHIVAJI NAGAR, BANGALORE – 560 051 ... APPELLANTS (By Sri: SUBBA RAO & CO. Adv., for Sri. B V Gangireddy, Adv.) AND

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SMT. R DIVYESHWARI AGED ABOUT 70 YEARS W/O LATE D GEORGE R/AT NO.72, 6TH CROSS SAMPANGIRMANAGARA BANGALORE 27

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SMT. VIDHYAVATHI S. KUMARI D/O LATE GEORGE AGED ABOUT 40 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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SMT NAMRATHA D/O LATE D GEORGE AGED ABOUT 37 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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N SUBHASHINI D/O LATE D GEORGE AGED ABOUT 31 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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S SUKESHINI D/O LATE D GERGE

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RSA 1584/2009

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AGED ABOUT 31 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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GLADSTON RAJU S/O LATE GEORGE AGED ABOUT 29 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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SAMSON CHIRSTOPHER S/O LATE D GEORGE AGED ABOUT 27 YEARS R/AT NO.72, 6TH CROSS, SAMPANGIRAMANAGARA BANGALORE 27

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... RESPONDENTS

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(R1 to R3, 5 & 6 served and unrepresented; R4 & R7 notice held sufficient)

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THIS RSA FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD:12.8.2009 PASSED IN R.A.NO.479/2004 ON THE FILE THE PRESIDING OFFICER, FAST TRACK COURT-II, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD:1.10.1996 PASSED IN O.S.NO.1788/1992 ON THE FILE OF THE II ADDL. I MUNSIFF, MYSORE.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The order dated 13.7.2010 pertains to the applications for condoning the delay, setting aside

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RSA 1584/2009

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the abatement and to bring the legal

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representatives on record.

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The fact that there is mention of a direction to amend the cause-title reveals that those applications only were allowed by this Court. Anyhow, Misc.Cvl.20961/09 is an application to permit the appellants to produce the additional documents which has to be heard along with the appeal.

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The appellants have challenged the judgment and decree of the Courts below decreeing the suit of the respondents for partition and separate possession for 9/16^th share in the suit schedule property.

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The facts relevant for the purpose of this appeal are as under:

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The parties are referred as per their rank before the trial Court for the sake of convenience. The appellants herein are the defendants, whereas

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RSA 1584/2009

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the respondents are the plaintiffs in the Court below who instituted the suit for partition and separate possession of their share in the suit schedule ‘A’ Property which is the house bearing No.4039, situated at Ghandhinagar, Mysore described

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in the schedule to the plaint. They contended that there was a partition amongst the predecessors in title on 11.2.1969 and ‘A’ schedule property fell to the share of the parties to the suit. The plaintiffs contended that they have got 9/16^th share in the suit property.

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The defendants denied the averments including the boundaries and identity of the suit property by putting forth a plea that there was some litigation between the parties in OS No.871/1987. The defence of the defendants was one of total denial.

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The trial Court framed the issues. During the trial the first plaintiff was examined as PW1 and in her evidence the documents Exs.P1 and P2 were marked. The first defendant examined as DW1 and no

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RSA 1584/2009

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documents were marked. The trial Court after hearing the counsel and on appreciation of the evidence on record decreed the suit. Aggrieved by the judgment and decree, the defendant preferred RA 479/2004. The appeal was dismissed on merits. Aggrieved by the judgment and decree, the present appeal is filed by the defendants. Along with the appeal they have also filed an application in Misc.Cvl.No.20961/2009 seeking permission to

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produce the additional documents.

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I have heard the learned counsel for the

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appellants. The respondents though served are absent.

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The following substantial question of law arises for consideration:

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“Whether the Courts below committed an error in not calling upon the plaintiffs to produce the property extract of the suit property and overlooked the contents of Ex.P1 the Partition Deed and thereby

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RSA 1584/2009

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committed an error in decreeing the suit as prayed for?”

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Learned counsel for the appellants would

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contend that the suit property bearing house No.4039 was partitioned amongst the predecessors of both the branches of the propositus in the year 1935 under a Registered Partition Deed. Under the said partition, northern portion fell to the share of Doreswamy of the first branch, whereas, southern portion fell to the share of Prakashamma a person of the other branch. This document was not produced by both the parties in the trial Court. Anyhow, the plaintiffs had produced the Registered Partition Deed of the year 1969 as per Ex.P1. Perusal of the Partition Deed of the year 1969 reveals that the property which fell to the share of the parties to

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the suit was not measuring 60 x 50 and that apart the remaining portion 50 x 12 ½ went to the share of Samuel and his other sisters of the second branch. But, unfortunately, the plaintiffs did not mention this fact while describing the suit

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RSA 1584/2009

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schedule property and wrongly mentioned the

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measurement of the property as 60 x 50. But it is relevant to note that so far as partition deed of 1969 is concerned, the other brothers of George and the sisters were not parties to the Partition Deed. In such circumstances, the question of acting upon the said partition of the year 1969 does not arise. That apart under the provisions of Section 132 of the Karnataka Land Revenue act, whenever a suit is filed in respect of the immovable property, it is necessary for the parties to produce the property extract, so that the Court could notice the names

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of all those persons interested in the property and take note of it. Unfortunately this step was not taken by the plaintiffs. Furthermore, neither the trial Court nor the first appellate Court did not look into the contents of the Partition Deed Ex.P1 and also the description of the share of the parties to the suit. Anyhow, the appellants herein have produced the Registered Partition Deed dated

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RSA 1584/2009

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16.5.1935, wherein Doreswamy and Kamalamma the persons of the two branches are parties to the said partition. This appears to be a valid document indicating the share of the two branches. It appears that this document is necessary to do substantial justice to the parties. Therefore it is necessary to allow the appellants to produce the certified copy of the Partition Deed dated

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16.5.1935.

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The suit instituted by the defendants

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before the trial Court is of the year 1992. 20 years have elapsed from the date of institution of the suit. As could be seen from the provisions of Order 41 Rule 28 CPC, when the appellants have been permitted to produce additional evidence, if it is the First Appellate Court, the Court itself can record the evidence or direct the Court from whose decree the appeal is preferred to take such evidence and to send it to the Appellate Court. This would indicate that even

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RSA 1584/2009

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the First Appellate Court can record the evidence when the additional evidence is permitted to be produced or it has discretion even to send it to the Trial Court. As the matter is of the year 1992, it seems not proper to send the matter to the Trial Court for recording the evidence. The Lower Appellate Court can exercise its discretion vested in it under Order 41 Rule 28 CPC and record the evidence and dispose of the appeal after considering the same or if deemed fit it can call upon the Trial Court to record the evidence and to forward the same to the First Appellate Court. So to avoid the delay, I think it is just and proper to remit the matter to the First Appellate Court and to take into consideration the additional evidence permitted to be produced by the appellants and give an opportunity to both the parties to produce the evidence and dispose of the same in accordance with law.

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RSA 1584/2009

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In the result, the appeal is allowed by

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setting aside the Judgment and Decree of the First Appellate Court. Misc. Cvl.20961/2009 is allowed. The matter is remitted to the Lower Appellate Court. The appellants are permitted to produce additional documents. The First Appellate Court in its discretion either record the additional evidence or call upon the Trial Court to record the evidence and forward the same and the First Appellate Court on consideration of such evidence shall dispose of the appeal in accordance with law.

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The parties are at liberty to move the Court

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for amendment of the pleadings. In case if any

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such application is filed the same shall be disposed of in accordance with law. To avoid delay, the appellants are directed to appear before Lower Appellate Court on 15.11.2013 and take further steps.

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*AP/- & *bgn/-

John Sukrutharaj v. R Divyeshwari

Case brief

What is this about?

What did the court decide?

John Sukrutharaj v. R Divyeshwari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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