Dismissed

Sri a Ramaiah v. Smt Anusuya

Karnataka HC29 Mar 2023RFA/368/2007

Case brief

AI extract

What is this about?

Regular First Appeal against a partition decree. The High Court of Karnataka dismissed the appeal and an interim application for additional documents, confirming the trial court's finding of a 1/3rd share for the plaintiff sister despite the appellant's claims of acquired properties.

What did the court decide?

Application I.A.No.1/2011 dismissed; appeal dismissed with costs; trial court judgment and decree confirmed.

Sri a Ramaiah Vs Smt Anusuya — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29TH DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MRS. JUSTICE M G UMA

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REGULAR FIRST APPEAL NO. 368 OF 2007 (PAR)

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BETWEEN:

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SRI. A. RAMAIAH DEAD BY LRS

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1(A) SMT. MEENAKSHAMMA, W/O LATE A. RAMAIAH, AGED ABOUT 68 YEARS, 1(B) SRI. ANANDA, S/O LATE A. RAMAIAH, AGED ABOUT 41 YEARS, 1(C) SMT. NAGARATHNA, D/O LATE A. RAMAIAH, W/O LAKSHMIKANTH AGED ABOUT 39 YEARS R/AT GOTTIGERE VILLAGE AND POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE - 560 083.

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1(D) SRI. NAGESHA, S/O LATE A. RAMAIAH, AGED ABOUT 36 YEARS, 1(E) SRI. ARUN SHEKAR, S/O LATE A. RAMAIAH, AGED ABOUT 34 YEARS, APPELLANT NO. 1(A), 1(B), 1(D) & 1(E) ALL R/AT KARIYAPPANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT.

PIN: 560 086.

... APPELLANTS

(BY SRI: G.R. LAKSHMIPATHY REDDY, ADVOCATE)

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AND:

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SMT. ANUSUYA, W/O NARAYANAPPA, AGED 45 YEARS, RESIDING AT THANISANDRA VILLAGE, K.R. PURAM HOBLI, BANGALORE - 560 045.

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SRI. VENKATESH, S/O LATE. APPALAPPA, AGE 65 YEARS, RESIDING AT KARIYAPPANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK

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... RESPONDENTS

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(BY SRI: G.A. VISWANATHA REDDY, ADVOCATE FOR R1 SRI: B.S. MANJUNATH, ADVOCATE FOR R2)

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGEMENT AND DECREE DT.04.03.2006 PASSED IN OS.NO.210/2000 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.) BANGALORE RURAL DISTRICT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.03.2023 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Defendant No.1 is before this Court impugning the judgment and decree dated 04.03.2006 passed in O.S No.210 of 2000 on the file of learned II Additional Civil Judge (Sr.Dn.) Bengaluru Rural District, Bengaluru, (hereinafter referred to as 'trial Court' for brevity), decreeing the suit of the plaintiff for partition and separate possession and for allotting 1/3^rd share in favour of the plaintiff in the suit schedule properties.

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For the sake of convenience, the parties are referred

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to as per their status and rank before the trial Court.

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Brief facts of the case are that, the plaintiff has filed the suit before the trial Court seeking for partition and separate possession of her 1/3^rd share in the suit schedule properties by metes and bounds and also for mesne profits. The schedule appended to the plaint describes 4 agricultural properties bearing survey No.124 measuring 01 acre 30 guntas, survey No.137 measuring 4 acres 16 guntas, survey No.119/4 measuring 18 guntas and survey No.119/6 measuring 14 guntas, situated at Bannerghatta village, Jigani Hobli, Anekal Taluk, with the boundaries mentioned therein

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and also the house property bearing junjuru No.21, property No.227, measuring east to west 16 yards and North to South 13 yards situated at Vajarahalli village, Jigani hobli, Anekal Taluk, with the boundaries mentioned therein.

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The plaintiff contended that her father Appalappa had two wives by names Yerramma and Bachamma. Through first wife Yerramma, Appalappa had begotten defendant Nos.1 and 2 and through the second wife the plaintiff had born. Appalappa had married Bachamma after the death of Yerramma. Both Yerramma and Bachamma had predeceased Appalappa. He died about 13 years earlier to filing of the suit leaving behind him the plaintiff and defendant Nos.1 and 2 as his legal representatives. It is submitted that during the life time of Appalappa, he along with his children i.e., plaintiff and defendants constituted a Hindu Undivided family. The properties described in the schedule are the joint family properties. The plaintiff and defendants are in joint possession and enjoyment of the same.

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It is contended that Appalappa used to manage the family properties as kartha. After his death defendant No.1

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being elder son took over the management and managing the affairs of the family. The income from the family properties were being misused by defendant No.1. He was not ready to give accounts and was not ready to partition the schedule properties. When the plaintiff came to know that the defendants are making efforts to alienate the schedule properties, she convened a Panchayat demanding her share. But the that defendants refused to divide the properties. The plaintiff is entitled for 1/3^rd equal share. The cause of action arose during March 2000. Therefore, the plaintiff prayed for decreeing the suit as prayed for.

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Defendant No.1 filed written statement denying the averments made in the plaint. It is contended that there was no cause of action for the suit. The relationship between the parties as claimed by the plaintiff is admitted. The contention of the plaintiff that schedule properties are the joint family properties is denied.

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It is contended that the plaintiff was married long back. She was aged 45 years and she was not in joint possession of the schedule properties. She is not entitled for

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share under Hindu succession Act. Except item No.4 of the schedule, other items are not the ancestral properties and the plaintiff is not entitled to for mesne profits. Item Nos.1, 2, 3 and 5 are the self acquired property of defendant No.1 and therefore, the plaintiff is not entitled for any share. Item Nos.1 to 3 were granted in favour of defendant No.1 by Land Tribunal as he was a tenant. Item No.5 was purchased by him under the sale deed dated 23.03.1950. Therefore, the plaintiff is not entitled for any share. Accordingly, prayed for dismissal of the suit.

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Defendant No.2 is represented by his advocate, but

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he has not filed the written statement.

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On the basis of these pleadings, the Trial Court framed the following issues for consideration.

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Issues

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"1. Whether plaintiff proves that suit property item No. 1 to 3 and 5 are ancestral joint family properties of plaintiff and defendants?

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2. Whether plaintiff proves that she is member of joint family of plaintiff and defendants and hence got share in suit schedule properties?

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3. Whether plaintiff is entitled for any share in suit property and if so what is her share?

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4. What is amount of mense profit and

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who is liable to account for the same?

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5. Whether plaintiff is entitled for relief

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sought?

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6. What order or decree?"

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The plaintiff examined herself as PW.1 and also

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examined one witness as PW.2 and got marked Exs.P.1 to 34 in support of her contention. Defendant No.1 who filed the written statement denying the right of the plaintiff has not chosen to cross examine PWs.1 to 3. He has not led any evidence in support of his defence. The trial Court after taking into consideration the materials on record, answered issues Nos.1 to 3 and 5 in the affirmative and answered issue No.4 as kept open to be decided during the course of final decree proceedings and come to the conclusion that the plaintiff is entitled for 1/3^rd share in the schedule properties and accordingly decreed the suit in respect of the schedule properties. The claim regarding mesne profits is ordered to be decided in the final decree proceedings.

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Being aggrieved by the same, defendant No.1 has preferred this appeal.

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Learned counsel for the appellant has filed I.A No.1/2011 under Order XLI Rule 27 read with Section 151 of CPC seeking permission to produce additional documents. He has produced true copies of 4 RTC's in respect of survey Nos.130/17, 130/28, 130/25 and 92/4, standing in the name of respondent No.2, Encumbrance certificate in respect of survey Nos.140, 141 and 142 of Bannerghatta village, Jigani Hobli, Anekal taluk and house register extract.

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Heard Sri. G.R.Lakshmipathy Reddy, learned counsel for the appellants and Sri G.A.Viswanatha Reddy, learned counsel for respondent No.1 and Sri. B.S. Manjunath, learned counsel for respondent No.2. Perused the materials on record including the Trial Court records.

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Learned counsel for the appellant contended that the relationship between the parties is admitted. Defendant No.2 has not contested the matter. Even though, the appellant who was arrayed as defendant No.1 filed the written

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statement, he could not contest the matter. Therefore, the matter has to be remanded back to the trial Court for fresh disposal.

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Learned counsel submitted that item Nos.1, 3 and 5 are not the ancestral properties. Item Nos.1 to 3 were granted in favour of defendant No.1 by the Land Tribunal as per the order produced as per Ex.P.2. Item No.5 was purchased by defendant No.1. Therefore, the trial Court has committed an error in decreeing the suit of the plaintiff. Only when he received the notice in Final Decree proceedings, Defendant No.1 came to know about decreeing of the suit and immediately challenged the same.

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Learned counsel further submitted that additional documents produced in the case disclose that there are other properties as well which are standing in the name of defendant No.2 which are not included by the plaintiff. Therefore, the suit is bad for partial partition. The Encumbrance certificate produced before the Court discloses that there was partition between the father of the plaintiff and defendants and his brothers on 09.09.1936. Survey

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Nos.140,141 and 142 of Bannerghatta village, Jigani hobli, Anekal taluk, allotted to the share of Appallappa, the father of the plaintiff and defendants. Those properties were also not included in the plaint. Hence, it is a fit case for remanding to the trial Court. Hence, he prays for allowing the application I.A No.1/2011 and also the appeal by setting aside the impugned judgment and decree passed by the trial Court and to remand the matter for fresh disposal.

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Per contra, learned counsel for respondent No.1 submits that the relationship between the parties is clearly admitted. Defendant No.1 categorically admitted that item No.4 of the schedule is the ancestral property. Even though, he contended that item Nos.1 to 3 and 5 are his self acquired properties, no such documents were produced before this Court. Ex.P.2 is the order of the Land Tribunal and it does not disclose that the property is the self acquired property of defendant No.1. He further submitted that defendant No.1 filed the written statement taking specific contentions. He never cross examined PWs.1 to 3. He has also not stepped into the witness box to depose regarding his defence. Under

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such circumstances, the trial Court has rightly decreed the suit of the plaintiff.

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Learned counsel further submitted that the additional documents are not either originals or certified copies. The same cannot be admitted in evidence. He also contended that none of these additional documents are helpful to defendant No.1 to substantiate his contention. He is raising all together a new defence by introducing these documents. Hence, he prays for dismissal of the application and also the appeal.

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In view of the rival submissions made by learned counsel for both the parties, the point that would arise for my consideration is:

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1. Whether the appellant has made out any grounds to allow IA No.1/2011 file under Order XLI Rule 27 read with Sec 151 C.P.C?

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2. Whether, the impugned judgment and decree passed by the trial Court suffers from perversity or illegality and whether the appellant has made out any grounds for interference?

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My answer to the above points is in 'Negative' for the following:

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REASONS

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It is the specific contention of the plaintiff that she

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is the sister and defendant Nos.1 and 2 are the daughters of Appalappa, through his 2nd wife, whereas defendant Nos.1 and 2 are the sons through his first wife. This relationship suggested by the plaintiff is admitted by defendant No.1. He filed the written statement raising specific defence that item Nos.1 to 3 of the schedule were granted in his favour by the Land Tribunal conferring the right as occupant. The plaintiff produced Ex.P.2, the order of the Land Tribunal wherein it is stated that the owner of the land conceded with the applicant and was cultivating the land since 08 to 10 years and therefore, the occupancy right was conferred. The recitals found in the order Ex.P.2 does not support the contention of defendant No.1 regarding item Nos.1 to 3. Admittedly, the occupancy right was conferred in the name of defendant No.1 as per Ex.P.2, the order dated 27.04.1979. It is not in dispute

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that defendant No.1 is the eldest son of Appalappa who died about 13 years earlier to filing of the suit. Even though,

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defendant No.1 has taken the specific contention that these items are self acquired properties no materials are placed either before the trial Court or before this Court to substantiate his contention. His contention that item No.5- the house property was purchased by him under a registered sale deed. The said sale deed is also not produced before the Court for the reasons best known to defendant No.1. Admittedly, defendant No.1 was represented by his advocate and filed written statement before the trial Court, but he has not chosen to cross examine PWs.1 to 3 nor he has chosen to step into the witness box to depose regarding his defence.

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Learned counsel for the appellant contended that he was not given an opportunity by the trial Court to contest the matter. This contention of the learned counsel is also not supported by any material. The order sheet of the trial Court discloses that throughout the proceedings defendant Nos.1 and 2 were represented by their advocates. PW.1 was examined on 24.05.2005 , her cross examination was taken as nil only on 08.10.2005. PWs.2 and 3 were examined before the trial Court on 21.12.2005. Those witnesses were also not cross examined. The defendant has not examined

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himself. The impugned judgment came to be passed on 04.03.2006. Under these circumstances, it cannot be said that the plaintiff was not given an opportunity before the trial Court. On the other hand, defendant No.1 who was served with the summons represented by his advocate, filed his written statement, has not taken the opportunity to contest the matter. There is absolutely no justifiable reason to accept the contention of defendant No.1 that the matter is required to be remanded back to the trial Court. Unless a reasonable grounds is made out to set aside the impugned judgment, the same cannot be set aside. The appeal cannot be allowed and the matter cannot be remanded back to the trial Court in a casual way without there being any ground.

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The appellant has filed I.A No.1/2011 under Order XLI Rule 27 read with Section 151 of CPC producing additional documents. The appellant has produced copies of RTC's, Encumbrance certificate and house register extract. None of these documents are the original documents. They are only copies signed by the learned counsel for the appellant. There is absolutely no reason as to why authentic copies of the documents are not produced.

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The copy of the Encumbrance certificate disclose that there was a partition between Appalappa and others on 09.09.1936 and survey Nos.140, 141, 142 measuring one acre 12 guntas were allotted to Appalappa. The said registered document is not produced before the Court. Moreover, as per the very same Encumbrance certificate those 3 items of properties were mortgaged by Appalappa in favour of one Channarayappa on 04.03.1937. Whether the mortgage was redeemed or not is not known. The last document is the copy of the house register extract which is not legible and it does not make out anything as to who issued the document and to which property the same is pertaining to. Under such circumstances, the additional documents produced by the appellant are of no help.

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Under Order XLI Rule 27 of CPC, there is a bar to produce additional evidence before the appellant Court unless specific grounds are made out as mentioned therein. It is not the contention of the appellant that the trial Court has refused to receive those documents in evidence. It is also not the

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contention of the appellant that in spite of due diligence he could not produce those documents before the trial Court. It

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is also not the contention of the appellant that those documents will enable this court to pronounce the judgment. As I have already noted all those documents are only copies and even if the same are taken into consideration it will not substantiate the contention of the appellant. Under such circumstances, I am of the opinion that the appellant is not entitled to produce the additional documents.

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In view of the above, I answer both the points in the

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Negative . In the result, the application and the appeal are liable to be dismissed.

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Hence, I proceed to pass the following:

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ORDER

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(i) I.A.No.1/2011 filed under Order XLI Rule

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27 read with Section 151 of CPC is dismissed.

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(ii) The appeal is dismissed with costs.

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(iii) The judgment and decree dated 04.03.2006 passed in O.S.No.210/2000 on the file of the learned II Additional Civil

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Judge (Sr.Dn.) Bengaluru Rural District, Bengaluru, is hereby confirmed.

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Registry is directed to send back the Trial Court records along with a copy of this judgment.

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Sd/JUDGE

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SKS

Sri a Ramaiah v. Smt Anusuya

Case brief

What is this about?

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Sri a Ramaiah v. Smt Anusuya

Case brief

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