Shivanna Vs Smt. Gowramma

SMT. RAJESHWARI AGED ABOUT 43 YEARS, W/O RAJANNA, D/O LATE MALLIKARJUNA, R/AT KADASOOR VILLAGE, HAMPAPURA HOBLI, H.D. KOTE TALUK, MYSORE DISTRICT-570 014.

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BASAVANNA, AGED ABOUT 63 YEARS, S/O LATE NANJAPPA, R/AT YADAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT-570 008. …APPELLANTS

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[BY SRI. B.K. RAMAIAH, ADVOCATE FOR SRI. KUMAR K.G., ADVOCATE FOR A1(A-C) & A2 TO A7)]

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AND:

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SMT. GOWRAMMA AGED ABOUT 75 YEARS, W/O LATE MALLAPPA, R/AT YADAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT-570 008.

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MAHADEVU, AGED ABOUT 58 YEARS, S/O LATE MALLAPPA, R/AT YADAHALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT-570 008.

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…RESPONDENTS

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(R1 & R2 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 31.10.2014 PASSED IN R.A.NO.63/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 9.3.2012 PASSED IN OS.NO.513/2006 ON THE FILE OF THE II CIVIL JUDGE & JMFC., MYSORE.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 31.10.2014 passed in Regular Appeal No.63 of 2012 by the learned Second Additional Senior Civil Judge,

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Mysuru, and praying to confirm the judgment and decree dated 09.03.2012 passed in Original Suit No.513 of 2006 by the learned II Civil Judge and JMFC, Mysuru.

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Brief facts leading rise to the filing of this appeal are as follows:

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For convenience, the parties are referred to based on their rankings before the Trial Court, i.e., the appellants were the plaintiffs and the respondents were the defendants.

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The plaintiffs filed a suit against the defendants for partition and separate possession contending that the suit schedule property is the joint family property of the plaintiffs and the defendants and no partition has been effected. The plaintiffs demanded partition and separate possession of the suit property. However, the defendants refused to effect partition and hence, a cause of action arose for the plaintiffs to file a suit

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for partition and separate possession. Accordingly,

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they pray to decree the suit.

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The defendants filed a written statement admitting the relationship between the parties. It is contended that there was a partition between the plaintiffs and the defendants, and prior to partition, the husband of defendant No.1 was selected as a priest to the Marigudi temple and the suit property was handed over to him. It is admitted that the husband of defendant No.1 got changed the records to his name and he was cultivating and enjoying the suit schedule property as the absolute owner. It is contended that the suit schedule property is not the joint family property of the plaintiffs and the defendants and the suit filed by the plaintiffs is not maintainable. Hence, they pray for dismissal of the suit.

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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(i) “Whether the plaintiffs prove that the suit schedule property is a joint family property and they are in joint possession thereof?

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(ii) Whether the defendants prove that the properties belonging to the joint family were partitioned in the year 1964?

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(iii) Whether the plaintiffs are entitled for partition and separate possession of their share as prayed in the suit?

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(iv) What order or decree?”

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The plaintiffs, to substantiate their case, examined plaintiff No.3 as PW-1 and marked three documents as Exhibits P-1 to P-3. On the other hand, defendant Nos.1 and 2 were examined as DW-1 and DW-2 respectively and marked thirty-two documents as Exhibits D-1 to D-32.

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The Trial Court, after recording the evidence, hearing both sides and assessing verbal and documentary evidence, answered issue Nos.1 and 3 partly in the

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affirmative, issue No.2 in the negative and issue No.4 as per the final order.

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The suit of the plaintiffs was partly decreed with costs. It is declared that the plaintiffs are entitled to a one-fifth share each with their separate possession of the suit schedule property by metes and bounds.

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The defendants, aggrieved by the judgment and preliminary decree passed in Original Suit No.513 of 2006, preferred an appeal in Regular Appeal No.63 of 2012 on the file of the II Additional Senior Civil Judge, Mysuru.

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During the pendency of the regular appeal, the defendants filed an application for production of additional evidence.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration:

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(i) Whether the respondents /plaintiffs prove that the suit property is joint family property of the plaintiffs and defendants and they are in joint possession of the same?

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(ii) Whether the appellants /defendants prove that there was a partition in the family in the year 1964 and joint family property were partitioned?

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(iii) Whether the plaintiffs/respondents are entitled for relief of partition and separate possession in the suit schedule property as prayed for?

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(iv) Whether the judgment and decree passed by the trial Court is proper?

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(v) Whether the appellants/defendants have made out ground to allow the application filed by them under order 41 Rule 27(b) of C.P.C for production of original document before the Court?

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(vi) What order or decree?

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The First Appellate Court, after re-assessing the verbal and documentary evidence answered point

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Nos.1, 3 and 4 in the negative, point Nos.2 and 5 in the affirmative and point No.6 as per the final order. Ultimately, the First Appellate Court allowed the appeal and set aside the judgment and decree passed in Original Suit No.513 of 2006 and consequently, dismissed the suit of the plaintiffs.

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Being aggrieved by the judgment and decree passed in Regular Appeal No.63 of 2012, the plaintiffs preferred this Regular Second Appeal.

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The notice of this appeal was issued to the respondents. Despite service of notice, the respondents remained unrepresented.

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Heard the learned counsel for the plaintiffs.

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The learned counsel for the plaintiffs submits that the defendants filed an application for the production of additional evidence before the First Appellate Court. The First Appellate Court allowed the said application and thereafter did not provide an opportunity to the

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plaintiffs to adduce their evidence on the additional evidence. He submits that the First Appellate Court has not complied with the provisions of Order XLI Rule 28 of the Civil Procedure Code, 1908.

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He also submits that the First Appellate Court has placed reliance on those documents produced by the defendants passed the impugned judgment and has not complied with the provisions of Order XLI Rule 31 of the Civil Procedure Code and hence, on these grounds, he has prayed to set aside the judgment passed in Regular Appeal No.63 of 2012.

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

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This Court admitted the appeal on 09.06.2025 to consider the following substantial questions of law:

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“(I) Whether the appellants prove that the first appellate Court has committed an error in recording a finding that the suit schedule property were granted in favour

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of defendants in their individual capacity in the absence of grant order?

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(II) Whether the appellants prove that the First Appellate Court committed an error in reversing judgment and decree passed by the trial Court?”

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REG. SUBSTANTIAL QUESTION OF LAW No.2 :

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The plaintiffs filed a suit for partition and separate possession of the suit schedule property contending that the said property is the joint family property of the plaintiffs and the defendants. The plaintiffs and the defendants are members of a Hindu Undivided Family and no partition has been effected between them. To establish that the suit schedule property is joint family property of the plaintiffs and defendants, and they are in joint possession of the same, they have produced the documents at Exhibits P-1 and P- 2—RTC extracts, and Ex.P3—the land grant order bearing No.INA.KLRM.525/79-80, dated 15.12.1981.

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The Trial Court considering Exhibits P-1 and P-2 has held that the suit schedule property is the joint family property of the plaintiffs and the defendants, and they are in joint possession of the same and ultimately, decreed the suit of the plaintiffs and declared that the plaintiffs are entitled to a one-fifth share each with separate possession of the suit schedule property.

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Defendant No.1, aggrieved by the judgment and preliminary decree passed in Original Suit No.513 of 2006 preferred an appeal in Regular Appeal No.63 of 2012.

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During the pendency of the appeal before the First Appellate Court, the defendants filed an application for the production of additional evidence. The First Appellate Court framed a point for consideration (point No.5) and allowed the application for the production of additional evidence. The First Appellate Court, without recording any evidence on the

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additional evidence, has placed reliance on those additional documents and passed the impugned judgment.

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When the Appellate Court allows an application for the production of additional evidence, the next stage is to record the evidence as per the provisions of Order XLI Rule 28 of the Civil Procedure Code. According to the said provision, whenever an additional evidence is allowed to be produced, the First appellate court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

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Admittedly, in the instant case, the First Appellate Court has allowed the application for production of additional evidence but failed to record evidence on the additional evidence and placed reliance on those documents. The First Appellate Court has thus

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committed an error in not complying with the provisions of Order XLI Rule 28 of the Civil Procedure Code and in reversing the judgment passed by the Trial Court.

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Thus, the judgment and decree passed by the First Appellate Court in reversing the judgment of the Trial Court is perverse and arbitrary. Hence, on this ground alone the impugned judgment is liable to be set aside and the matter requires to be reconsidered by the First Appellate Court.

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In view of the above discussion, the substantial questions of law framed on 09.06.2025 for consideration, do not arise for consideration, as this Court is of the opinion that the matter requires reconsideration by the First Appellate Court. I answer the substantial question of law No.2 in the Affirmative.

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REG. SUBSTANTIAL QUESTION OF LAW No.1 :

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In view of the above discussion the matter requires reconsideration by the First Appellate Court, substantial question of law No.1 does not arise for consideration. Accordingly, I proceed to pass the following order :

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ORDER

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(I) This Regular Second Appeal is allowed .

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(II) The Judgment and decree passed by the First Appellate Court in Regular Appeal No.63 of 2012 dated 31.10.2014 on the file of the II Additional Senior Civil Judge, Mysuru is set aside .

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