Smt.Prema W/O. Anant Tahasildar Vs Sou. Prabha W/O. Balawant Angolkar

SHRI. RAJSHEKHAR ULAWAYYA CHARANTIMATH AGE: 46 YEARS, OCC: SERVICE, R/O: C/O: DR.P.P.PATIL, H.NO. 86, VASANT VIHAR COLONY, RANICHANNAMMA NAGAR, BELGAUM-590 001.

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…RESPONDENTS

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(BY SRI. S.B.HEBBALLI, ADVOCATE FOR R1 SRI. SANGRAM S.KULKARNI, ADVOCATE FOR R2)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.12.2018 PASSED IN O.S. NO.295/2013 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION, PARTITION, SEPARATE POSSESSION AND PERMANENT INJUNCTION.

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

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The defendants No.1 to 6 in O.S. No.295/2013 on the file of the IV Additional Senior Civil Judge & JMFC, Belagavi (for short, ‘the Trial Court’), have filed this Regular First appeal challenging the judgment and decree dated 18.12.2018 passed therein, by which the Trial Court decreed the suit and declared that the plaintiff is entitled to her legitimate share in the suit schedule properties.

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For the sake of convenience and easy

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understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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i) The suit in O.S. No.295/2013 was filed by the daughter for partition and separate possession of her share in

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the suit schedule properties which were agricultural lands and a house property. The plaintiff claimed that the genealogy of her

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family was as follows:

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Satappa (Propositus)(Dead) Mallappa (Son)(Dead) Ratnabai (Wife)(Dead)

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Prema Shobha Prabha Chandrakanth Ajay Sanjaya Renuka (Daughter) (Daughter) (Daughter) (Son) (Son) (Son) (Daughter) (D-1) (Dead) (P-1) (D-2) (D-3) (D-4) (D-5)

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ii) She claimed that the suit properties were the

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ancestral joint family properties of the plaintiff and the defendants No.1 to 5 and that there was no partition between them. She claimed that though the relationship was cordial and there was no reason for any dispute or trouble, but in the last few months, the relationship between them was spoilt. She contended that defendant No.6 obtained a Power of Attorney from defendants No.2 to 4 in respect of one of the suit items viz., R.S. No.108 of Chougulewadi, Belagavi and based on the said Power of Attorney, he executed a sale deed in favour of defendant No.7 without notice and knowledge of the plaintiff. Therefore, she claimed that the said sale deed did not bind her

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interest in the suit schedule properties. She later amended the plaint and claimed that, earlier, she had filed a suit in O.S. No.114/1998 before the II Additional Senior Civil Judge, Belagavi against her father and others for partition and separate possession of the suit schedule properties. She claimed that, after service of notice in the said suit, the defendants appeared and advised her to withdraw the suit as they were ready to give her a plot bearing No.44 measuring 30 x 40 feet formed in R.S.No.108 of Chougulewadi, Belagavi. She claimed that some of the defendants had executed an agreement in her favour and, in good faith, she filed a memo not pressing the suit. She claimed that despite withdrawal of suit in O.S. No.114/1998, she did not receive any share in the suit properties. She claimed that in the second week of August 2011, she came to know about the false sale deed having been executed in favour of defendant No.7. Therefore, she demanded her lawful 1/6^th share in the suit schedule properties which the defendants were postponing it on one or the other reason. Therefore, she filed the suit for partition and separate possession, and a declaration that the sale deed executed by

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the Power of Attorney of defendants No.2 to 4 in favour of defendant No.7 was illegal and not binding upon her share.

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3 (i) The suit was contested by defendants No.1 to 5, inter alia contending that the instant suit was not maintainable since the plaintiff had earlier filed O.S. No.114/1998 claiming 1/7^th share in the suit property and that she withdrew it unconditionally, as settled outside the court. It was contended that the Court accepted the request and disposed of the suit. Therefore, it was contended that a subsequent suit for the same reliefs was not maintainable. It was also contended that the description of the property is false and baseless and therefore, the plaintiff was called upon to strictly prove the description of the property.

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(ii) Further, it was contended by the defendants that one of the siblings namely Shobha had died leaving behind her husband, two daughters and a son. It was contended that though the plaintiff had impleaded Shobha in the earlier suit in O.S. No.114/1998, she deliberately did not include the husband

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and children of Shobha in the instant suit. Therefore, it was contended that the suit was bad for non-joinder of necessary

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parties. It was further contended that the plaintiff and the defendants did not constitute a joint family, and that the plaintiff and defendants were never in joint possession of the suit schedule properties. Therefore, they contended that in view of filing of O.S. No.114/1998, there was severance of status of joint family. Thus, it was contended that the plaintiff cannot claim that there was a joint Hindu family between the plaintiff and the defendants. It was contended that the father of the plaintiff and defendants No.1 to 5 was a tenant in the agricultural properties mentioned at Sl. Nos.1 to 4 and that, after coming into force of the Karnataka Land Reforms Act, 1961, he filed Form No.7 claiming occupancy rights and that the Tribunal vide order dated 25.03.1976 granted occupancy rights. They contended that their father, in his written statement filed in O.S. No.114/1998, had made it clear that the tenancy of the land grant was in his individual capacity and the plaintiff had no semblance of right, title or interest in the suit schedule properties.

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(iii) It was further contended that the plaintiff had deliberately not included the house property bearing No.437

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situated at Nazar Camp, Vadgaon, Belagavi, as well as house property bearing No.111 situated at Chougalwadi, Belagavi, which was the subject matter of the suit in O.S. No.114/1998. It was also contended that the plaintiff did not include movables such as gold ornaments, furniture, silver articles, electronic gadgets and utensils which were subject matter of the suit in O.S. No.114/1998. Therefore, it was contended that the suit, without including all the movables as well as the immovable properties, was not maintainable. Besides this, it was contended that the plaintiff had entered into an agreement with the defendants through their Power of Attorney viz., defendant No.6, on 03.03.2003, agreeing to receive Rs.2,00,000/- towards her claim in respect of R.S. No.108 and therefore, she had no locus stand to question the legality of the transaction brought about by defendant No.6 in favour of defendant No.7 in respect of the land bearing R.S. No.108 of Belagavi. Based on these contentions, the defendants claimed that the plaintiff was not entitled to any share in the suit properties.

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Based on the above contentions, the Trial Court

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framed the following issues:

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“1. Do the defendant No.1 to 5 prove that in view of withdrawal of the earlier suit by the plaintiff in O.S.No.114/1998 as not pressed, the instant suit is patently not maintainable?

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2. Does the plaintiff proves that the suit properties are the ancestral and joint family properties of the parties?

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3. Do the defendant No.1 to 5 prove that item Nos.1 to 4 of suit 'A' schedule lands have been converted to N.A. purpose on 29-06-1998?

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4. Is the suit bad for non-describing of boundaries and measurements of the properties?

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5. Is the suit bad for non-joinder of necessary parties as contended by the defendants?

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6. Is the suit bad for non-inclusion of properties as claimed by the defendants in para 9 of the written statement ?

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7. Do the defendant Nos.1 to 5 prove that plaintiff has entered into an agreement with defendant No.6 on 03-03-2003 agreeing to receive Rs.2 Lakhs towards full settlement of her claim and as such she has no right to make any claim in respect of R.S. No.108?

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8. Does the defendant proves that defendant No.6 as

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a G.P.A. Holder of defendant Nos.2 to 4 has executed

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an illegal sale deed dated:22-03-2006 in favour of D-

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7 and it is not binding on the plaintiff ?

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9. Is the plaintiff entitled for relief of declaration as sought for ?

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10. Is the plaintiff entitled for relief of partition a sought for ?

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11. Is the plaintiff entitled for relief of perpetual injunction as sought for ?

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12. Whether the valuation made by the plaintiff and the court fee paid on the plaint is proper and sufficient ?

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13. What order or decree ?”

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The plaintiff was examined as P.W.1 and Exs.P.1 to P.11 were

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marked. None of the defendants entered the witness box. However, they confronted Exs.D.1 and D.2 to the plaintiff which were marked.

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Based on the oral and documentary evidence, the

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Trial Court held that the plaintiff had proved that the suit properties were the joint family properties of the plaintiff and the defendants. It held that the present suit was not barred in view of withdrawal of the suit in O.S. No.114/1998. It held that

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the suit was not bad for non-inclusion of the properties, as claimed by the defendants in the written statement. It also held that the defendants had proved that the plaintiff had entered into an agreement with defendant No.6 on 03.03.2003 agreeing to receive Rs.2,00,000/- towards full and final settlement of her claim in respect of land bearing R.S. No.108; however, it held that the said agreement was not acted upon. It also held that the sale deed executed by defendant No.6 as Power of Attorney of defendants No.2 to 4 did not bind the interest of the plaintiff. Consequently, it held that the plaintiff was entitled for her share in the suit properties.

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Being aggrieved by the said judgment and decree, the defendants are before this Court.

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i) The learned counsel for the defendants contended that the plaintiff had filed O.S. No.114/1998 for partition and separate possession of the very same properties. He contended that the plaintiff had withdrawn the said suit stating that the matter was settled out of the Court. Therefore, he contends that the plaintiff cannot file one more suit on the same cause of action in respect of the very same properties.

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Thus, he contends that the suit is not maintainable. He contends that when the parties have settled the dispute outside the Court, the parties cannot reagitate the very same issue before the Court. Thus, he contends that the Trial Court committed an error in holding that the plaintiff is entitled to sue again for partition and separate possession of her share notwithstanding withdrawal of the suit in O.S. No.114/1998.

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ii) He further contends that the plaintiff had deliberately not impleaded the legal heirs of one of her sisters namely, Shobha, who was a party in O.S. No.114/1998. Therefore, he contends that the suit is not maintainable for non-joinder of necessary parties. Besides, he contends that the plaintiff had not included all the properties of the family and therefore, the suit was effectually one for partial partition and hence, the suit is not maintainable.

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iii) He also contended that the sale deed executed by defendant No.6 as Power of Attorney of defendants No.2 to 4 in favour of defendant No.7 was within the notice and knowledge of the plaintiff and that she did not raise any objection to it. He contends that the plaintiff was fully aware of conversion of the land bearing R.S.No.108 for non-agricultural use as well as

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formation of sites. He also contends that the defendants had agreed to handover a site formed in Sy.No.108. Therefore, he contends that the plaintiff was aware of the fact that R.S.No.108 was converted for non-agricultural use and a site was allotted/conveyed by respondent No.6 in favour of respondent No.7. Therefore, it was contended that the suit was barred by limitation as the plaintiff was fully aware of the transaction between defendant No.6 and defendant No.7.

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iv) He also contended that the suit properties were granted to the father of the plaintiff and the defendants in his individual capacity and therefore, the plaintiff is not entitled to any share in the suit properties as she was not a member of the family of a tenant as defined under the Karnataka Land Revenue Act, 1964. Thus, he contends that the plaintiff is not entitled to any share in the suit properties.

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v) He contends that the appellants have filed I.A. No.2/2019 for production of additional documentary evidence. Along with the application, they have produced a certified copy of the ‘Will’ dated 09.07.1998 allegedly executed by the father of the defendants in favour of their mother and the sons. It is

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contended that this document could not be produced before the Trial Court as they were not aware of the execution of the ‘Will’ and that they came to know about the existence of the ‘Will’ recently. They claim that non-production of the ‘Will’ before the Trial Court was neither intentional nor deliberate and that the said document is necessary for the purpose of effectively adjudicating their rights in the suit properties.

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The learned counsel for the plaintiff, on the other hand, contended that though the plaintiff had filed O.S. No.114/1998, the said suit was withdrawn based on a promise made by the defendants that they would hand over a site formed in R.S. No.108. He contends that till date, none of the defendants have ensured that the site is conveyed to the plaintiff. He contends that the plaintiff is therefore, entitled to file a fresh suit for claiming her share in the suit schedule properties. He contends that though one of the sisters of the plaintiff had expired leaving behind her husband and children, the plaintiff had not arrayed them as parties. However, he submits that he has no objections for them to be impleaded in the suit by this Court by exercising power under Order I Rule

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10(2) of the Code of Civil Procedure, 1908. He contends that there are no properties which are not included in the suit schedule and hence the claim of the defendants that the suit is filed for partial partition is not sustainable.

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We have heard and considered the submissions of

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the learned counsel for the plaintiff and the learned counsel for the defendants.

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After hearing the learned counsel for the plaintiff and the defendants, and after perusing the material on record, we are of the opinion that the following points arise for our consideration:

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i) Whether the instant suit filed for partition is not maintainable in view of the earlier suit filed by the plaintiff in O.S. No.114/1998 being withdrawn?

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ii) Whether the suit properties were the joint properties or the ancestral properties of the plaintiff and the defendants?

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iii) Whether the defendants are entitled to produce additional documentary evidence at this stage and, if yes, whether it has any consequences?

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iv) Whether the plaintiff has any right, title and interest in the suit property?

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v) Whether the legal heirs of one of the sisters of the plaintiff could be ordered to be impleaded in the final decree proceedings for effectively identifying the share of the plaintiff and other defendants?

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vi) Whether the Trial Court committed an error in not ensuring that the decree complies with the requirement of Order XX Rule 28 of CPC?

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In so far as the first point for consideration framed

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by us is concerned, the plaintiff claimed that she had filed O.S. No.114/1998 for partition and separate possession of her share in the suit schedule properties. She also claimed that, after service of notice of the said suit, she withdrew it by filing a memo stating that the parties have settled the dispute outside the court. Therefore, there was no effective adjudication of the claim of the plaintiff in the said suit. It is now trite that mere withdrawal of the suit for partition does not foreclose the rights of the parties to seek a share. In the instant case, the plaintiff specifically claimed that the defendants had agreed to part with

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a site formed in Sy.No.108 towards her full and final settlement, in O.S. No.114/1998. She also claimed that some of the defendants had executed an agreement to convey the said site. This contention of the plaintiff is not denied by the defendants in the written statement. On the contrary, the defendants have claimed that the plaintiff had executed an agreement dated 03.03.2003 in favour of defendant No.6 whereby she agreed to receive a sum of Rs.2,00,000/- towards her claim in respect of the land bearing R.S. No.108. Therefore, there is no specific denial of the claim of the plaintiff that the defendants had executed an agreement to convey a site formed in Sy.No.108. Therefore, it can be safely concluded that the defendants having promised the plaintiff to settle the dispute amicably outside the Court, have backtracked on it. Therefore, the plaintiff was absolutely justified in filing a fresh suit for partition of her share in the suit schedule properties The Hon’ble Apex Court in the case of Jet Ply Wood Private

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Ltd. & Anr vs Madhukar Nowlakha & Ors¹ in similar circumstances has held that the plaintiff is entitled to file a fresh suit notwithstanding the fact that an earlier suit filed for

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1 AIR 2006 SC 1260

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the same relief was withdrawn on the ground that the parties had agreed to settle it outside the Court. To the same effect are the judgments of the Apex Court in Des Raj v. Bhagat Ram , (2007) 9 SCC 641 , and various High Courts in Seenappa & Ors. Vs. Subbaiah & Ors. [ILR 1999 KAR 1543 – High Court of Karnataka] and Subhash Mukundrao Deshmukh Vs. Prakash Mukundrao Deshmukh and Ors [Civil Revision Application No.45 of 2021, decided on 18.07.2022 – High Court of Bombay (Nagpur Bench)]. Thus, it is held that there is no error committed by the Trial Court in entertaining the suit filed by plaintiff for partition and separate possession of her share in the suit properties.

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In so far as the second point for consideration is concerned, the defendants have admitted that suit items 1 to 4 were the tenanted lands and that their father was cultivating it and that he filed an application seeking grant of occupancy rights. The defendants have not placed on record any material to justify that the said lands were granted to their father in his individual capacity. The least that the defendants could have done was to place on record, Form No.7 filed before the

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Tribunal, the evidence recorded before the Tribunal as well as the order passed by the Tribunal, and this would have thrown light on the question whether the forefathers of the plaintiff and defendants were cultivating the suit properties as tenants. The fact that the defendants have not produced any document and have not entered the witness box to justify their claim goes to show that this claim of the plaintiff is not seriously disputed. Consequently, the Trial Court was justified in holding that the suit schedule properties are the joint family properties of the plaintiffs and defendants and the plaintiff was entitled to equal share therein.

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In so far as additional documentary evidence sought to be placed on record is concerned, the defendants have contended that their father had executed a ‘Will’ bequeathing the properties in favour of his wife as well as in favour of his three sons. The defendants have innocently claimed that they were not aware of this document and they came to know of this recently. Assuming that the father of the defendants had executed a ‘Will’ that did not impact the right, title and interest of the plaintiff. However, if the defendants are

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able to prove that their father had executed a ‘Will’, then the defendants may be entitled to the share of the father in the suit schedule properties Therefore, it is appropriate for this Court to direct the final decree Court to consider whether the father of the plaintiffs and defendants had executed a ‘Will’ and, if yes, then to allot the share of their father to defendants No.2, 3 and 4.

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As regards the fourth point, the relationship of the plaintiff and defendants is not in dispute. Though the defendants claim that all the suit properties are not ancestral properties and that items No.1 to 4 were granted to their father, the defendants did not disclose as to how the family came into possession of the suit items No.5 and 6 of ‘A’ Schedule as well as the house in the ‘B’ Schedule. Since this Court has already held that the defendants have not produced anything to show that the suit items No.1 to 4 were allotted to their father in his individual capacity, this Court has no other option than to hold that the suit properties were the joint family properties and plaintiff has an undivided share in the suit schedule properties.

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In so far as point No.5 is concerned, the plaintiff had admitted categorically that one of her sisters named Shobha was arrayed as one of the defendants in O.S. No.114/1998. She admitted that the said Shobha had expired leaving behind her husband and three children. Therefore, the legal representatives of the said Shobha have succeeded to share of Shobha in the suit schedule properties and hence are bound to be brought on record as defendants in the suit. Therefore, this Court deems it appropriate to direct the final decree Court to implead the legal heirs of Shobha as defendants in the suit and allot the shares as directed.

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The Trial Court while disposing of the suit did not declare the share of the plaintiff and the defendants. The Trial Court was completely oblivious of the fact that it was bound to declare the share of the plaintiff and the defendants which is the salient feature of any preliminary decree [See Shub Karan Bubna @ Shub Karan Prasad Bub vs Sita Saran Bubna & Ors – (2009)9 SCC 689 ]. Therefore, it is held that the Trial Court committed an error in not declaring the share of the plaintiff in the suit schedule properties. Consequently, this Court has felt

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it proper to exercise jurisdiction under Order XLI Rule 33 of CPC to declare the share of plaintiff.

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In view of the aforesaid findings, we pass the

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following:

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ORDER

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i) The appeal is dismissed.

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ii) Nonetheless, exercising power under Order XLI Rule 33 of CPC, it is declared that the plaintiff is entitled to 1/7^th share in the suit schedule properties which is however subject to the following:

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iii) I.A. No.2/2019 filed by the defendants to produce the additional documentary evidence is disposed of reserving liberty to the defendants to raise their contentions in the final decree proceedings. If such contentions are raised, the final decree court is directed to consider the same in accordance with law. If the defendants 2, 3 and 4 prove the lawful execution of the Will and also remove any or all suspicious circumstances surrounding the execution of the ‘Will’, a share be allotted to the father of the plaintiff and defendants No.1 to 5 and that share shall be allotted to

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defendants No.2, 3 and 4. It is needless to mention that if the lawful execution of the Will is not proved or is brought about in suspicious circumstances, then the plaintiff shall be entitled to 1/7^th share in the suit properties.

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iv) The final decree court shall consider the possibility of allotting the property sold by defendant No.6 as Power of Attorney of defendants No.2 to 4 in favour of defendant No.7 to the share of defendants No.2 to 4.

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v) No order as to costs.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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KMS, Ct:vh List No.: 1 Sl No.: 22

Smt.Prema W/O. Anant Tahasildar v. Sou. Prabha W/O. Balawant Angolkar

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Smt.Prema W/O. Anant Tahasildar v. Sou. Prabha W/O. Balawant Angolkar

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