Remanded

Sri Basavarajaiah v. Smt. Prameelamma

Karnataka HC16 Nov 2023RSA/141/2014

Case brief

AI extract

What is this about?

This second appeal concerned whether the First Appellate Court erred in adjudicating the main appeal without passing an order on the couple's application for additional evidence under Order XLI Rule 27 CPC. The High Court held the judgment was procedurally flawed.

What did the court decide?

The impugned judgment and decree in R.A.No.43/2010 dated 30.09.2013 are set aside and the matter remitted to the First Appellate Court.

Sri Basavarajaiah Vs Smt. Prameelamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:40971 RSA No. 141 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 141 OF 2014 (PAR)

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BETWEEN :

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SRI BASAVARAJAIAH S/O LATE VEERABHADRAIAH AGED ABOUT 64 YEARS

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SRI RAJASHEKARAIAH S/O BASAVARAJAIAH AGED 42 YEARS

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APPELLANTS 1 AND 2 ARE RESIDING AT KASAGATTA VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPUR TALUK 561 203

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT PUSHPAVATHI W/O SIDDALINGAPPA D/O BASAVARAJAIAH AGED ABOUT 40 YEARS RESIDING AT KURUGALI AJJIBYRANAHALLI HOODIGERE HOBLI, BYTHA POST TUMKUR DISTRICT 562 127

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SMT PARVATHAMMA W/O SHIVASWAMY D/O BASAVARAJAIAH AGED ABOUT 38 YEARS RESIDING AT KYATHASANDRA HOODIGERE HOBLI TUMKUR DISTRICT 512 102

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…APPELLANTS

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NC: 2023:KHC:40971 RSA No. 141 of 2014

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(BY SRI. SRINIVASA RAGHAVAN, SR. COUNSEL FOR SRI. TEJAS SHETTY, ADVOCATE)

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AND :

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SMT. PRAMEELAMMA D/O BASAVARAJAIAH W/O NAGARAJU AGED ABOUT 45 YEARS R/AT NO.51, 1^ST MAIN, 3^RD CROSS NO.19, C/O GIRIYAPPA PEENYA 2^ND STAGE, SHIVAPURA NNTC BEHIND BANGALORE – 560 058

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…RESPONDENT

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(BY SRI. NAGARAJA S., ADVOCATE C/R)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 30.9.2013 PASSED IN R.A.NO.43/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, DODDABALLAPUR, DISMISSING THE APPEAL AND AFFIRMING THE JUDGEMENT AND DECREE DTD 28.9.2010 PASSED IN OS.NO.46/2006 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, DODDABALLAPURA.

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

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JUDGMENT

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This second appeal is filed by the appellant

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challenging the judgment and decree dated 30.09.2013, passed in R.A.No.43/2010 by the Senior Civil Judge & JMFC, Doddaballapur.

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3 - NC: 2023:KHC:40971 RSA No. 141 of 2014

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellants are the defendants and respondent is the plaintiff.

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The plaintiff filed a suit for partition and separate possession against the defendants in respect of the suit schedule properties. The defendants filed written statement.

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The Trial Court, on the basis of the pleadings of

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the parties, framed the following issues:

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1. Whether the plaintiff proves the genealogical tree as contended by her?

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1. Whether the plaintiff proves that the suit schedule properties are joint Hindu family properties as contended by her?

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1. Whether the plaintiff proves that she is entitled for 1/3^rd share in the suit schedule properties?

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1. What order or decree ?

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In order to prove the case of the plaintiff, the plaintiff examined herself as PW-1 and got examined one witness as PW-2 and got marked 19 documents as Exs.P1

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4 - NC: 2023:KHC:40971 RSA No. 141 of 2014

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to P19. Defendant No.1 examined himself as DW-1 and examined one witness as DW-2 and got marked 6 documents as Exs.D1 to D6. The trial Court considering the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per final order and consequently decreed the suit of the plaintiff with cost. It is declared that plaintiff is entitled for half share in the suit schedule properties.

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The defendants aggrieved by the judgment and preliminary decree passed in the above said suit, filed an appeal in R.A.No.43/2010. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the respondent has proved that the respondent is the daughter of the appellant No.1 born through his first wife Smt. Ningamma?

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2) Whether the respondent has proved that the said properties are the ancestral and joint family properties of the appellants and the respondent?

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NC: 2023:KHC:40971 RSA No. 141 of 2014

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3) Whether the appellants have proved that the suit properties are the exclusive properties of the appellants?

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4) Whether the trial Court was justified in reaching the conclusions on the issues framed by it in the suit?

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5) Whether the trial Court was justified in awarding half share to the respondent?

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6) Whether the impugned judgment and decree calls for interference?

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7) What order?

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The First Appellate Court, on re-assessing the oral and documentary evidence, answered points No.1, 2, 4 and 5 in affirmative and points No.3 and 6 in negative and consequently dismissed the appeal with cost. The defendants aggrieved by the judgment and decree passed by the First Appellate Court, have filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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1) Whether the First Appellant Court was justified in passing the impugned judgment without passing order on I.A.No.6?"

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6 - NC: 2023:KHC:40971 RSA No. 141 of 2014

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Heard learned senior counsel for the defendants

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and learned counsel for the plaintiff.

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Learned senior counsel for the defendants submits that the defendants have filed an application for production of additional documents in I.A.No.6. He submits that the First Appellate Court without passing any order on I.A.No.6, has proceeded to pass the impugned judgment. Hence he submits that the impugned judgment passed by the First Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in the case of JATINDER SINGH & ANR. (MINOR THROUGH MOTHER) VS. MEHAR SINGH & ORS., reported in AIR 2009 SC 354 . Hence on these grounds, prays to allow the appeal and remit the matter to First Appellate Court to reconsider the appeal along with I.A.No.6.

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Per contra, learned counsel for the plaintiff submits that the proposed documents produced along with I.A.No.6 are not relevant for the purpose of deciding the case in hand. He submits that the judgment and decree

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NC: 2023:KHC:40971 RSA No. 141 of 2014

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passed by the courts below are just and proper and does not call for interference. Hence on this ground, prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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It is not in dispute that the plaintiff filed a suit for partition and separate possession against the defendants. Defendants filed written statement. The trial Court framed issues and thereafter the parties have adduced evidence before the trial Court and produced documents. The trial Court considering the oral and documentary evidence, decreed the suit of the plaintiff. The defendants aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.43/2010 before the First Appellate Court. During the pendency of the appeal, I.A.No.6 under Order XLI Rule 27 of CPC for production of additional evidence was filed by the defendants on 11.10.2012. The plaintiff filed objections to the said application and the matter was listed

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8 - NC: 2023:KHC:40971 RSA No. 141 of 2014

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for hearing. The First Appellate Court, without passing any order on I.A.No.6, has proceeded to pass the impugned judgment. The impugned judgment passed by the First Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in the case of JATINDER SINGH (SUPRA) . On this ground alone, the impugned judgment passed by the First Appellate Court is liable to be set aside.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and decree passed by the First Appellate Court in R.A.No.43/2010 dated 30.09.2013, is set aside.

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Matter is remitted to the First Appellate Court to dispose of I.A.No.6 along with the main appeal and pass appropriate judgment in accordance with law.

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NC: 2023:KHC:40971 RSA No. 141 of 2014

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The parties are directed to appear before the First Appellate Court on 18.12.2023, without awaiting any further notice.

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All the contentions of the parties are kept open.

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As the appeal is of the year 2010, the First Appellate Court is directed to dispose of the appeal at the earliest.

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Registry is directed to transmit the records to the First Appellate Court.

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No order as to the costs.

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SD/JUDGE

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Sri Basavarajaiah v. Smt. Prameelamma

Case brief

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Sri Basavarajaiah v. Smt. Prameelamma

Case brief

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