Narasimhaiah Vs Smt Kariyamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING AGAINST THE JUDGMENT AND DECREE DATED 26.07.2022 PASSED IN RA.NO.28/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2018 PASSED IN OS.NO.352/2017 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, GUBBI.

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

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CORAM: HON'BLE MR JUSTICE K.NATARAJAN

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ORAL JUDGMENT

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This appeal is filed by the appellants/defendants under Section 100 CPC challenging the judgment and decree dated 23.07.2018 passed by the Addl. Civil Judge & JMFC, Gubbi, in O.S.No.352/2017 granting half share in the suit schedule property to the defendants, which is confirmed by the Addl. Senior Civil Judge & JMFC, Gubbi, in R.A.No.28/2019 vide judgment and decree dated 26.07.2022.

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The case of the appellants/defendants is, that plaintiffs/respondent nos.1 to 3 herein had filed a suit for partition and separate possession of the land measuring 3 acres 29 guntas in Sy. No.276 situated at Kunnala, Kadaba Hobli,

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Gubbi Taluk (herein after referred to as 'Suit Schedule Property').

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One Nadikeraiah was said to be the propositus of the family who had two sons viz., Nadikeraiah (defendants family) and Narasimhaiah (plaintiffs family). Nadikeraiah had three sons viz., Narasimhaiah (defendant no.1), Rangaiah (defendant no.2) and Kariyappa (defendant no.3). Narasimhaiah - second son of Nadikeraiah had only one son by name Narasimhaiah, who died leaving bhind his wife - Kariyamma (plaintiff no.1) and two sons viz., Lakshminarasimhaiah (plaintiff no.2) and Kaliprasad (plaintiff no.3) as his legal representatives.

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The further case of the plaintiffs before the Trial Court is that the parties to the suit constituted a Hindu Undivided Joint family and the suit schedule property is the ancestral property belonging to Nadikeraiah. After the death of Nadikeraiah, plaintiffs family would get half share and defendants family would get half share in the suit schedule property. Hence, the plaintiffs were constrained to file the suit against the defendants.

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Pursuant to the notice issued, defendants appeared through their Counsel, but they neither filed the written statement nor contested the suit. The Trial Court upon perusal of the plaint averments and the documentary evidence, had framed the following points for consideration, which reads as under:

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Do the plaintiffs prove that the suit schedule property is an ancestral and joint family property of suit parties?

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Do the plaintiffs prove that they and the defendants are the joint family members?

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Do the plaintiffs prove that they are entitled for the share in the suit schedule property as sought for?

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What order or decree?

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The plaintiffs, in order to prove their case, had examined plaintiff no.3 as PW-1 and got marked documents at Exs.P-1 to P-3. Defendants did not lead any evidence. The Trial Court after hearing the arguments of the plaintiffs, decreed the suit of the plaintiffs by granting half share to the plaintiffs and another half share to the defendants. Being aggrieved by the same, the

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defendants filed appeal before the First Appellate Court in R.A.No.28/2019. They also had filed an application under Order XLI Rule 27 CPC seeking to produce additional evidence. The application and the appeal was dismissed by the First Appellate Court confirming the judgment and decree of the Trial Court. Accordingly, the defendants are before this Court.

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Learned Counsel for the appellants has contended that though they appeared through an advocate before the Trial Court, they have not contested the matter, and therefore, they need an opportunity to contest the matter. It is also contended that though the learned Counsel for the appellants had filed an application under Order XLI Rule 27 CPC before the First Appellate Court, seeking production of sale deed for having purchased the property by the grandfather of the appellants, the same was not allowed by the First Appellate Court. Therefore, he prays to remand the matter to the Trial Court and provide the defendants an opportunity to contest the matter.

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Considering the facts of the case, issuance of notice to the respondents is dispensed with.

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Having heard the learned Counsel for the appellant, the point that arises for consideration is,

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(1) whether both the courts below committed an error in passing the impugned judgment and decree?

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(2) whether the appellant ahs made out sufficient grounds in the present appeal for remanding the matter to the Trial Court for providing an opportunity to the appellant?

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On a careful reading of the judgment and decree of both the courts below, it is not in dispute that one late Nadikeraiah was the propositus of the family. The said Nadikeraiah had two sons viz., Nadikeraiah and Narasimhaiah. The said Narasimhaiah who is said to be the second son of Nadikeraiah, had only one son by name Narasimhaiah, who had died leaving behind the plaintiffs as his legal representatives. Whereas, the first son - Nadikeraiah was having three children who are defendants 1 to 3 herein.

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Admittedly, the propositus Nadikeraiah is the owner of

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the property. Even if the documents produced along with the application under Order XLI Rule 27 CPC is taken into

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consideration, Narasimhaiah S/o Narasimhaiah who had left behind the plaintiffs, is entitled for half share in the suit schedule property. Plaintiffs family are the legal heirs of Narasimhaiah S/o Nadikeraiah and the defendants are the legal heirs of Nadikeraiah - elder son of Nadikeraiah.

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Considering the evidence of PW-1 and the documents at Ex.P-1 - genealogical tree, Ex.P-2 - RTC and Ex.P-3 - certified copy of RTC, the Trial Court has held that the plaintiffs family is entitled for half share and defendants family is entitled for half share. Accordingly, the suit was decreed.

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Though the appellants have prayed to contest the matter, since the genealogical tree is not in dispute, the propositus of the family is also not in dispute, there is no discrepancy in the allotment of share by the Trial Court and since it is not the case of the appellants that the suit schedule property is the selfacquired property of their father, this is not a fit case to remand the matter back to the Trial Court for contest. Though the defendants have not contested the matter, they have been rightly granted half share in the suit schedule property by the courts below.

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It is well settled law that in a suit for partition, the plaintiffs are defendants and the defendants are plaintiffs. Therefore, even though there was no contest in the matter by the defendants, half share to which they are legally entitled, has been granted by the Trial Court. The said finding of the Trial Court has been rightly upheld by the First Appellate Court. Even if the matter is remitted back to the Trial Court, no divergent finding, otherwise, could be recorded by the Trial Court. Under the circumstances, no illegality could be found in the judgment and decree passed by the courts below.

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The contention of the appellants that they are in possession of a dwelling house in the suit schedule property could be putforth in the final decree proceedings for suitable adjudication.

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