Allowed

Meti Pampapathi @ Pompapathi v. Meti Cholarajendra

Karnataka HC7 Oct 2021MSA/100016/2017

Case brief

AI extract

What is this about?

High Court of Karnataka allowed an appeal against a remand order. The High Court set aside the First Appellate Court's order remanding the partition suit and directed it to receive additional evidence under Order 41 Rules 27 and 28 CPC, finding the remand erroneous and in violation of CPC principles.

What did the court decide?

Set aside the remand order of RA No.13/2013 and directed the First Appellate Court to receive additional evidence under Order 41 Rules 27 and 28 CPC and dispose of the appeal.

Meti Pampapathi @ Pompapathi Vs Meti Cholarajendra — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE P.N.DESAI

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MSA No.100016/2017

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BETWEEN:

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METI PAMPAPATHI @ POMPAPATHI

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SINCE DEAD BY HIS LRS.,

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METI SREESHAILA, S/O. LATE METI POMPAPATHI, AGED ABOUT 58 YEARS, AGRICULTURIST, R/O. PAPINAYAKANAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT. – 583 201.

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SMT. VIMALA W/O. IYYANNA, D/O. METI POMPAPATHI, AGED ABOUT 62 YEARS, HINDU HOUSEWIFE, R/O. SHIRUR, KOPPAL TALUK & DIST.-577 126.

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SMT. SHARADAMMA D/O. METI POMPAPATHI, AGED ABOUT 60 YEARS, HINDU, HOUSEWIFE, R/O. KAKUBAL VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT.-583 201.

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...APPELLANTS

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(By SMT. VIDYA, ADV FOR SRI. K. RAGHAVENDRA RAO, ADV) AND

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1 . METI CHOLARAJENDRA S/O. METI POMPAPATHI, AGED ABOUT 42 YEARS, ELECTRICAL INCHARGE BHAGYALAKSHMI STEELS, & ALLOYS JALANA, JALANA DIST.-431 203 MHARASHTRA STATE.

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METI CHANDRAKALA D/O. METI POMPAPATHI, AGED ABOUT 38 YEARS, PRIVATE EMPLOYMENT, RESIDENT OF CHITTAWADIGI, HOSAPETE, BALLARI DISTRICT.-583 201.

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METI RAKESH KUMAR S/O. METI POMPAPATHI, AGED ABOUT 36 YEARS, RESIDENT OF SHANKTHINAGAR, RAICHUR DISTRICT, NOW AT PAPINAYAKANAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT-583 201.

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METI BHARATHI D/O. METI POMPAPATHI, W/O. VENKATESH DESAI, AGED ABOUT 34 YEARS, R/O PAPINAYAKANAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT.-583 201.

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SMT. JAMUNA RANI D/O. METI POMPAPATHI, W/O. NAGENDRA KUMAR @ NAGARAJ, OCC; HOUSE WIFE, AGED ABOUT 32 YEARS, R/O PAPINAYAKANAHALLI VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT.-583 201.

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…RESPONDENTS

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(By Sri. F .V. PATIL, ADVOCATE)

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THIS MSA IS FILED U/S 43 RULE 1 (U) OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 16.01.2017 PASSED IN R.A.NO.13/2013 ON THE FILE OF THE III-ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI (SITTING AT HOSAPETE), ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED;25.04.2013 PASSED IN O.S.NO.16/2011, ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HOSAPETE, DISMISSING THE SUIT FILED FOR PARTITIONA ND SEPARATE POSSESSION.

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DATE OF JUDGMENT RESERVED ON : 25.08.2021.

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DATE OF JUDGMENT PRONOUNCED ON: 07.10.2021.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIEVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed challenging the order dated 16.01.2017 passed by the III Additional, District and Session Judge, Ballari (sitting at Hosapete) in R.A No.13/2013.

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The appellants are the defendant No.2 to 4 before the trial Court. They are the children of defendant No.1 Meti Pampati who died subsequently, the respondents are the plaintiff Nos. 1 to 5 before the trial Court. The parties will be referred as plaintiffs and defendants as per their respective ranks before the trial Court.

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Plaintiffs filed the suit for declaration of the legitimate share in the suit schedule properties and deliver separate share.

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4. The brief case of the plaintiffs is;

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The suit schedule properties agricultural land bearing Sy. No. 101 measuring 2 acres 14 guntas, R.S No.122 measuring 4 acres 8 gunts, Sy. No.122 measuring 2 guntas, Sy. No.144 measuring 1 acre 10

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guntas, Sy. No.174 measuring 6 acre 20 guntas and Sy. No. 137 measuring 1 acre 50 guntas and Sy. No. 26/1 measuring 6 acre 25 guntas all are situated at Hosapete District Ballari. It is contended that, the said suit schedule properties are the ancestral joint family properties of plaintiffs and defendants. The suit properties are originally belongs to one Meti Pakkirappa. He had wife by name Meti Neelamma, she has got five sons and three daughters. All the daughters are married and residing at their matrimonial home. All the sons of Meti Pakkirappa got divided the properties under a partition deed. Accordingly, the sons have taken the respective shares and enjoying the suit properties. The suit schedule properties fallen to the share of defendant No.1, till today there is no partition. The defendant No.1 executed the Gift deed in favor of second wife

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by name Laxmi Devamma i.e., the mother of the plaintiffs in respect of Survey No.274(a) measuring 6 acres 95 guntas of Papinaikanahalli village. In that property the plaintiffs does not claim any share.

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Therefore, it is not included in the suit schedule property. Plaintiff No.1 is working as Electrical incharge in Bhagyalaxmi Steels and Alloys at Jalana of Maharastra State. Taking advantage of the absence of the elder son of second wife and the old age of the defendant No.1, the defendant No.2 got transferred his name in the RORs pertaining to the suit schedule properties to make wrongful gain to the plaintiffs. The defendant No.2 is also trying to take compensation for acquisition of the said land. The defendant No.1 has no right to execute relinquishment deed, therefore Ex.D 1 cannot be enforced in law. Plaintiff also entitle for share in all the suit properties except the self acquired property of the defendant No.1. It is further contended that, as the defendants denied the share of the plaintiffs the plaintiffs have filed the suit.

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Defendant No.1 admitted the relationship of the plaintiffs and defendants. He also admitted that, suit properties fallen to his share in the

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registered partition deed dated 25.10.1961 and defendant no.1 supported the case of the plaintiff.

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Defendant No.2 filed written statement. He denied the plaint averments as all false. He has admitted that, the suit schedule properties came to his father defendant No.1 in the partition of the year 1961. He is in enjoyment of his share. He has denied the relationship of the plaintiff. He has contended that, the partition was effected between defendant No.1 and 2 by way of registered settlement deed dated 26.06.1972 through which defendant No.2 has got the suit properties. Defendant No.2 alleged that, defendant No.1 is a man of extravagant having an unchasteful life. He has deserted his legally wedded wife by name Neelamma the mother of defendant No.2. When defendant Nos.2 to 4 were minors. Only on advise he has made the family arrangement. Their mother Neelamma acted as a guardian. Therefore by virtue of registered settlement deed, defendant no.2 has become the absolute owner of the suit properties and his name is mutated. The

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plaintiffs have no right to claim share in the suit properties which are separate and exclusive properties of defendant No.2. The plaintiffs even if they have any rights they have to precede against the properties retained by defendant No.1. Now after laps of 39 years plaintiffs have filed a false suit. This is a collusive suit only to harass the defendant No.2, with their main contention he has prayed to dismiss the suit.

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A memo was filed on behalf of defendant Nos.3 and 4 stating that, they adopt the written statement filed by defendant No.2.

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Based on the above said pleadings the

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trial Court has framed the following issues;

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1. Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties ?

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2. Whether the defendant No.2 proves that, he is the absolute owner of the suit properties by virtue of Registered Settlement deed of 1972 ?

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3. Whether the sit is barred by limitation ?

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4. Whether the plaintiffs are entitled for partition and separate possession of their 1/9^th share in the suit schedule properties ?

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5. What order or decree ?

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The plaintiff No.2 Meti Chandrakala got examined herself as PW 1 and got marked 40 documents as Ex.P1 to 40. Defendant No.2 got himself examined as DW 1 and defendant No.1 got himself examined as DW 2. Totally 119 documents are marked as Ex.D 1 to D 119 for defendants. After hearing the both sides the learned Principal Senior Civil Judge., Hosapete, dismissed the suit. Aggrieved by the same R.A No.13/2013 is filed. The learned appellate judge allowed the appeal and set aside the judgment and allowed the amendment of the plaint and allowed the production of documents and remanded back the matter to the trial Court. Aggrieved by the same this Second Appeal is preferred.

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Heard the learned counsel for the appellants Smt. Vidya for Sri. K. Raghavendra Rao and Sri. F.V. Patil learned counsel for the respondents.

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The learned counsel for the appellants argued that, the order of remand by the first appellate Court is illegal, perverse and it does not satisfy the requirement of order 41, 23A of CPC. The first appellate court has not considered the documents produced. Without considering these application in accordance with law, the first appellate court has committed illegality in allowing the same. The order of the remand passed by the appellate Court is against the Principles laid down by this Court and apex court.

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The leaned counsel argued that, there is no findings on issues, no reasons are assigned for remand. The provisions of Order 41 Rule 27 are not complied. Therefore the said order needs to be set aside. In support of his argument the learned

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counsel relied upon the decision of this court reported in 2006 LAWS(KAR) (12)3 which is equal to ILR 2007 Karnataka page 1127 in the case of Shantaveerappa V/s. K.N.Janardhanachari . The learned counsel relied on paragraph No.8 onwards particularly on paragraph No.11 wherein this court has considered the scope of order 41 rule 27, 28, 29 and order 41 rule 23-A of CPC and it is held as under;

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“11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of Trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the Trial Court. It also has the power to entertain Cross appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant’s appeal. Thus, the power of the First Appellate Court is unlimited. The reason being that it should be able to meet any parties. It cannot plead or feel helpless to

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meet any situation arising in a case to resolve the dispute the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the Trial Court after considering the evidence, has come to a conclusion, the Appellate court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the court should act under rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real Trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide tresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been

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inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate court on admitted facts the empty formality of remand must be eschewed to advance the cause of justice”.

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Against this the learned counsel for respondents Sri. F.V. Patil argued that, the appellants have filed applications under Order 41 Rule 27 and also under Order 6 Rule 17 of CPC the court has allowed the said applications. Ex.D 1 settlement deed is made on 26.06.1972 the trial court held that, some of the properties are not the properties of matrimonial grand mother. The learned counsel argued that plaintiffs intend to produce the document in this regard. He relied upon the decision of the Supreme Court of India 2011 part 11 SCC page No. 01 paragraph No.43, 44 and 45 wherein it is held as under;

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“43. Apart from Article 39(f), Article 300-A also comes into play while interpreting the concept of property rights. Article 300-A also comes into

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play while interpreting the concent of property rights. Article 300-A is as follows;

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“300-A Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.

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44. The right to property is no longer fundamental but it is a constitutional right and Article 300-A contains a guarantee against deprivation of property right save by the authority of law.

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45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self – acquired or ancestral”.

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The learned counsel argued that, if the matter is remanded as ordered by the First Appellate Court the said court will be in a better position to appreciate about property right and with their main arguments he prayed to dismiss the appeal.

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I have perused the order of remand passed by the learned judge of the Appellate Court, pleadings and evidence.

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It is evident that, the suit properties fell to the share of defendant no.1 in the family partition with his father as per Ex.D 1 on 26.06.1972, the defendant No.1 has executed the relinquishment deed in favor of defendant No.2.

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The First Appellate Court has not formulated any points for consideration which are required to be raised while deciding the first appeal and it should be inconfirmity him Order 41 Rule 31 of CPC. By writing a very short cryptic order without discussing the finding of the trial court on all other issues has simply allowed the appeal. No points are raised as to whether the additional evidence is necessary and the amendment is necessary.

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The Marks Card of plaintiff No.1 shows that, his date of birth is shown as 28.06.1972, he is not a party to the relinquishment deed. Plaintiffs have not disputed it. In view of death of defendant No.1 the First Appellate Court simply at paragraph No. 22 stated that, there are vital issues involved to

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be ascertained and the proposed amendments will not change the nature of the suit and production of documents is also necessary and hence, remanded the matter. There is absolutely nothing in the order of the first appellate court to show that, why the remand is essential in this case. Allowing the amendment application is also not correct. Because, what is sought to be pleaded is that, they are entitled for their share in the father’s property. The suit was dismissed on the ground that, plaintiffs cannot claim share during the life time of their father as they are born out of void marriage under

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Hindu Marriage Act, 1955. In my view if at all any party to the suit for partition dies during the pendency of proceedings and if at all the said deceased has got any rights in the suit properties and the parties if they prove that, they have got share in it and then are entitle for share, in view of death of defendant No.1. What is required is the modification or alteration of shares. If at all the plaintiffs are entitled for any share in the suit

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properties, this is a question of law. It need not be pleaded. Even without pleading the question of law can be argued before the Appellate Court and shares can be determined as per law therefore. Remanding the matter for that purpose is erroneous. Further if at all the appellate Court feels that, the document is such as marks card of plaintiff No.1 to show that, his date of birth is 1972 is necessary and the school admission register extract of defendant No.3 is essential, then the First Appellate Court itself can record the evidence and decide the matter. On the other hand, remanding entire matter directing both

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the parties to lead further evidence is not in accordance with the spirit of order 41 rule 23(A) of

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CPC as held by this Court in Shantaveerappa (Supra) case.

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It is also stated at the Bar that the matter

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in Revanasiddappa (supra) and another is referred to Larger Bench before the Supreme Court of India and the same is still pending and no final verdict is delivered i.e., regarding regarding the status of right

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of the children born out of void marriage as per section 16 of the Hindu Marriage Act, 1955. On the other hand, the trial court has raised the issues and discussed all the issues. The first appellate Court without stating anything about the findings and reasoning of the trial Court on those issues has simply remanded the matter. Production of those two documents and recording of evidence on that can be done by the First Appellate Court itself. So in view of the principle stated in above referred decision if the order of the appellate Court is considered then, the said order is liable to be set aside.

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Therefore if at all, only those two documents are required to be produced then under order 41 rule 27 of CPC can take those documents as an additional evidence produced under Order 41 Rule 28 CPC by giving parties to opportunity to cross examine or contest the said documents. Viewed from any angle remand of entire case is illegal and erroneous. Therefore the said order need to be set aside.

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In the result I pass the following

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(i) The appeal is allowed. (ii) The judgment passed in RA No.13/2013 by the III Additional District and Sessions Judge., Ballari (Sitting at Hosapete) is hereby set aside.

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(iii) The appeal is restored to the file of III Additional District and Session Judge, Ballari.

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(iv) The first appellate court is directed to receive the additional evidence under Order 41 Rule 27 and

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proceed to lead Additional evidence as provided under Order 41 Rule 28 CPC in the light of observation made above.

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(v) The First Appellate Court thereafter shall hear the arguments of both the sides a fresh and then dispose

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of the appeal in accordance with law as expeediously as possible

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