Sri Chikkabasavaiah Vs Smt Shanthamma

SMT. SHANTHAMMA D/O MAHALINGIAH @ MAHALINGAPPA, W/O SHIVANAJAPPA, AGED ABOUT 57 YEARS, R/O DODDAIAHNAPALYA VILLAGE, KASABA HOBLI, TIPTUR TALUK, TUMKUR DISTRIT 572201

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SMT. PREMALLEELA D/O MAHALINGAIAH @ MAHALINGAPPA, AGED ABOUT 39 YEARS, R/O LAKMAGONDANHALLY, SHETTIKERE HOBLI, CHIKKANAYANAHALLY TALUK, TUMKUR DISTRICT-572226

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SRI M BYRAPPA SINCE DEAD BY LRS

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SMT. SOWBHAGYAMMA W/O LATE M.BYRAPPA, AGED ABOUT 59 YEARS

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SHANKARAMURTHY S/O LATE M.BYRAPPA,

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AGED ABOUT 32 YEARS,

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SMT. DRAKSHAYANI D/O LATE M BYRAPPA, AGED ABOUT 30 YERS,

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ALL ARE R/AT LAKMAGONDANHALLY, SHETTIKERE HOBLI, CHIKKANAYANAHALLY TALUK, TUMKUR DISTRICT -572226.

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SRI PARAMESHWARAIAH S/O MAHALINGAIAH @ MAHALINGAPPA, AGED ABUT 52 YEARS,

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SRI MALLIKARJUNAIAH S/O MAHALINGAIAH @ MAHALINGAPPA, AGED ABOUT 50 YERS,

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GANGADHARAIAH S/O MAHALINGIAH @ MAHALINGAPPA, AGED ABOUT 48 YEARS,

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SRI GOWRISHANKAR S/O MAHALINGIAH @ MAHALINGAPPA, AGED ABOUT 46 YEARS,

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RESPONDENTS 4 TO 7 ARE R/AT LAKMAGONDANHALLY, SHETTIKERE HOBLI, CHIKKANAYANAHALLY TALUK, TUMKUR DISTRICT -572226.

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SMT. SHIVAGANGAMMA D/O MAHALINGAIAH @ MAHALINGAPPA, AGED ABOUT 58 YEARS, R/O BYRAPURA, KIBBANAHALLI HOBLI,

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TIPTUR TLAUK, TUMKUR DISTRICT-572114

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…RESPONDENTS

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(R1 AND R2 SERVED & UNREPRESENTED; BY SRI S S PARIKSHIT, ADVOCATE FOR SRI K S RAMASWAMY IYANGAR, ADVOCATE FOR R3 TO R10)

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THIS MSA IS FILED UNDER SECTION 104 R/W ORDER 43 RULE 1(U) OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.10.2019 PASSED IN R.A.NO.1/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR AND ETC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel appearing for the

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respective parties.

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This miscellaneous second appeal is filed challenging the remand order passed by the First Appellate Court in allowing I.A.Nos.1 and 2 which were filed before the First Appellate Court seeking permission to file the

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written statement as well as to appoint the Court Commissioner under Section 151 of CPC and under Order 26 Rule 10-A of CPC respectively.

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The First Appellate Court while considering the regular appeal considered I.A.No.1 filed by defendant Nos.1 to 6 under Section 151 of CPC and also I.A.No.2

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filed under Order 26 Rule 10-A of CPC wherein an application is filed praying the Court to receive the written statement as well as appoint a Court Commissioner. Those two applications are resisted by the respondent in appeal by filing statement of objections to the application under Order 26 Rule 10-A of CPC only. The counsel for the appellant submits that the copy of application filed under Section 151 of CPC was not served on him. The First Appellate Court having considered the grounds urged in the applications as well as the statement of objections on I.As., framed the points for consideration that whether IAs are deserve to be allowed and whether interference of

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this Court is called for with respect of judgment and all the

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points are answered as affirmative.

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The counsel for the appellant would vehemently

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contend that the suit is filed for the relief of partition by the sisters and also for separate possession claiming the share in the item Nos.1 to 13 properties. The counsel also would vehemently contend that the suit was contested by the subsequent purchaser that is the appellant herein and none of the defendants who are the brothers in the original suit have contested the matter though appeared through their counsel. The counsel would vehemently contend that vakalath was filed on 06.11.2009 and not led any evidence. Only the plaintiff led the evidence. The defendant examined himself as DW1 and the Trial Court having considered the material on record granted the share in respect of item No.1 to 11 excluding the properties which have been purchased by the appellant herein since the sale transaction was taken placed in the year 1997 and the sale was also made by the father and

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an observation is made that the plaintiffs who are the daughters cannot question the sale made by the father in the year 1997 and dismissed the suit in respect of the properties which the appellant has purchased that is item Nos.12 and 13.

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Being aggrieved by the dismissal of suit in respect of item Nos.12 and 13, the plaintiffs have filed the appeal in R.A.No.1/2012 wherein also her brothers and also the subsequent purchaser as parties to the appeal. The counsel brought to notice of this Court that when the matter was not contested before the Trial Court, the same was disposed of on 19.11.2011. The counsel also would vehemently contend that the appeal was filed on 03.01.2012 and even though the appeal was filed in the year 2012, they have not filed any application for filing of written statement as well as filing of the application under Order 26 Rule 10-A of CPC and same was filed on 12.12.2014. The counsel would vehemently contend that from 2009 to 2014, they have not made any efforts to file

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the written statement and suddenly came before the Court assigning the reason that their signatures are forged. But the fact that the property was sold in the year 1997 and possession was also delivered in the same year itself. The defendants who are the sons of the vendor have not agitated the same and even not disputed the claim of the plaintiffs who are the sisters before the Trial Court and only an after thought, they filed the written statement and also sought permission of the Court and also sought to send the documents for hand writing expert. The counsel would vehemently contend that the Court has to take note of the conduct and they kept quiet from 2009 to 2014 as well as they did not challenge the sale deed executed by their father in the year 1997 and their sisters have got filed the suit and these aspects has not been taken note of by the First Appellate Court while allowing I.A.Nos.1 and 2. The counsel also would vehemently contend that while allowing the application also the First Appellate Court has not discussed anything about not filing of written

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statement before the Trial Court and also even immediately after filing of the appeal and only comes to the conclusion that they have filed written statement denying the signature and the First Appellate Court comes to the conclusion that the Court cannot compare the signatures available on the sale deed and expert opinion is necessary with regard to the signatures and thumb impression found at Ex.D2 belongs to defendant Nos.1 to 6. The very approach of the First Appellate Court is erroneous in considering I.A.Nos.1 and 2 hence, it requires interference to set aside the order and remand the matter to the First Appellate Court to consider the matter on merits by setting aside the order passed on I.A.Nos.1 and 2.

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Per contra, the learned counsel appearing for

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the respondent would vehemently contend that the application filed under Order 26 Rule 10-A of CPC was rejected by the Trial Court and writ petition was filed before this Court in W.P.No.27796/2015 and this Court

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given an liberty to file review petition and same has to be

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heard on merits and also an observation is made that if the learned Judge intends to allow the application, then the decision on merit has to be postponed. If the learned Judge intends to dismiss the application, decision on merits will have to be pronounced. This the established procedure relating to the pending applications in a appeal and relies upon the judgment of the Apex Court in the case of MALAYALAM PLANTATION vs STATE OF

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KERALA reported in AIR 2011 SC 559 . In view of this order, a review was filed and the counsel would submits that the review was allowed and an appeal ass considered on merits by considering two applications. The counsel would submits that the First Appellate Court comes to the conclusion that hand writing experts opinion is necessary to consider the document at Ex.D2 and hence, rightly allowed both the IAs and remanded the matter and this Court cannot find fault with the remand order passed by the First Appellate Court and also defendant Nos.1 to 6 are

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directed to file fresh written statement before the Trial Court.

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Having heard the learned counsel appearing for

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the respective parties and also considering the grounds urged in the MSA, the points that would arise for consideration of this appeal are:

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Whether the First Appellate Court committed an error in allowing I.A.No.1 and 2 for receiving the written statement as well as allowing the application for sending the document for hand writing expert to compare the signatures and thumb impressions and whether it requires interference of this Court?

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What order?

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Point No.1:

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8. Having heard the learned counsel appearing for

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the respective parties and also on perusal of the material

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on record, it is not in dispute that the suit was filed in the year 2009 and also it is not in dispute that the sale deed was executed in terms of Ex.D2 on 15.02.1997. It is also not in dispute that while filing the suit for the relief of partition and separate possession including the properties which have been sold that is item Nos.12 and 13 in the said suit along with other item Nos.1 to 11, none of the defendants have contested the matter before the Trial Court except the appellant herein since he is the purchaser of item Nos.12 and 13. The defendants who have filed the written statement in the First Appellate Court that too on 12.12.2014, have appeared through the counsel by filing vakalath on 06.11.2009 before the Trial Court and records discloses that the suit was disposed by the Trial Court after two years of filing of vakalath by defendant Nos.1 to 6 i.e., on 19.11.2011. None of the defendants having the knowledge about the suit filed by their sisters, not contested the matter and the judgment was passed granting 1/8^th share in respect of only item Nos.1 to 11

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properties and an appeal was filed by the sisters in R.A.no..1/2012 in respect of item Nos.12 and 13.

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It is also important to note that in R.A.No.1/2012 also defendant Nos.1 to 6 have appeared through their counsel but not filed the written statement along with the application immediately after filing of the appeal. But applications were filed on 12.12.2014 seeking permission to file the written statement though they appeared before the Trial Court on 06.11.2009 i.e., after a lapse of five years. Having perused the order passed by the First Appellate Court while allowing these two applications, it discloses that except stating that the reason assigned in the application that though several opportunities were given to them to file the written statement, they did not file the same and even not discussed anything about filing of written statement after five years in the impugned order. But, the observation is made that written statement taken as not filed. Even after recorded that written statement was not filed, no efforts

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were made before the Trial Court seeking permission of the Court to file the written statement. But an observation is made that the defendants have denied the signatures in Ex.D2. If the applications are rejected, they will be deprived from contesting from their case. No reasons are assigned with regard to the fact that what prevented them from contesting the matter from 2009 to 2014 and an observation is made that an opportunity has to be given and fails to take note of the fact that opportunity cannot be given on whims and fancies of the defendants.

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It is also made an observation that though the Court has power to compare the disputed signatures with the admitted signatures but expert opinion is available, it is not necessary to take risk to compare the disputed signatures with the admitted signatures at Ex.D2. The very observation made by the First Appellate Court is erroneous when there is a provision under Section 73 of the Evidence Act and even Court can compare the signature when all defendant Nos.1 to 6 have signed the

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document at Ex.D2. No doubt, it is settled law that the Court cannot act as an expert but the provision is very clear with regard to compare the signature. In the case on hand, the defendants have disputed their signatures only after five years filing the written statement but the First Appellate Court failed to take note of the fact that the sale was made in the year 1997. It is also the contention of the appellant herein that the defendants who are the brothers of the sisters who filed the suit, have also signed the very sale deed as a consenting witnesses and when the document at Ex.D2 was before the Court, the Court ought to have compared the same instead of allowing the applications filed under Section 151 of CPC and under Order 26 Rule 10-A of CPC. The very reasoning given by the First Appellate Court while allowing the applications are without consideration of the grounds which have been urged. Having perused the affidavit, it is very clear that they have stated that they came to know about the same very recently. The fact that the sale was made in the year

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1997 by the father of the plaintiffs and defendant No.1 to 6 and also the document at Ex.D2 contains the signatures of defendant Nos.1 to 6 and they have not challenged the judgment and decree of the Trial Court, but only filed the written statement after five years. When they have been arrayed as defendants in the suit filed by their sisters, would have come up with the application to file written statement. These factors were not taken note of by the First Appellate Court and the First Appellate Court committed an error while answering point Nos.1 and 2 and also remanding the matter. Hence, it requires interference of this Court and the very approach of the First Appellate Court is erroneous receiving the written statement as well as considering the application filed under Order 26 Rule 10-A of CPC. Hence, the impugned order requires to be set aside and the very remand also requires to be set aside. Hence, I answer the said point as affirmative.

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Point No.2:

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is allowed.

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The impugned order dated 17.10.2019 passed in R.A.No.1/2012 by the First Appellate Court is set aside and

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the matter is remanded to the First Appellate Court to consider the same afresh on merits on available records since the document at Ex.D2 is also already marked and even the defendants who contend that they have not made the signatures in the sale deed, they can also raise that objection in the appeal also and the First Appellate Court can compare the signatures invoking the provision

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of Section 73 of the Evidence Act.

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Sd/- (H.P.SANDESH) JUDGE

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SN

Sri Chikkabasavaiah v. Smt Shanthamma

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Sri Chikkabasavaiah v. Smt Shanthamma

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