Smt Doddakka Vs Sri Malappa

D/O CHICKAIAH, @ DODDA CHICKAIAH, W/O LATE GUNDAPPA, AGED ABOUT 69 YEARS, R/AT MUDACHINTALAHALLI VILLAGE, KASABA HOBLI, CHINTAMANI TALUK, CHICKBALLAPUR DISTRICT

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Digitally signed by PRAMILA G V

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Location: HIGH COURT OF KARNATAKA

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SMT BEERAMMA D/O CHICKAIAH, @ DODDA CHICKAIAH, W/O HANUMANTHAPPA, AGED ABOUT 64 YEARS, R/AT MUDACHINTALAHALLI VILLAGE, KASABA HOBLI,

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CHINTAMANI TALUK, CHICKBALLAPUR DISTRICT

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SMT LAKSHMAMMA D/O LATE MALAMMA, W/O NARAYANASWAMY, AGED ABOUT 44 YEARS, R/AT MUDACHINTALAHALLI VILLAGE, KASABA HOBLI, CHINTAMANI TALUK, CHICKBALLAPUR DISTRICT

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SMT AKKAYAMMA

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HC-KAR

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D/O CHICKAIAH, @ DODDA CHICKAIAH, W/O LATE CHICK GUNDAPPA, AGED ABOUT 64 YEARS, R/AT MUDACHINTALAHALLI VILLAGE, KASABA HOBLI,

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CHINTAMANI TALUK, CHICKBALLAPUR DISTRICT

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…APPELLANTS

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(BY SRI. RAMAIAH GOWDA L M .,ADVOCATE)

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Appellants 2 to 4 are treated as the LRs of deceased appellant No.1.

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AND:

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SRI MALAPPA

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S/O CHICKKACHIKKAIAH, AGED ABOUT 54 YEARS,

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R/AT MUDACHINTHALAHALLI VILLAGE, KASABA HOBLI, CHINTAMANI TALUK, CHICKBALLAPURA DISTRICT

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SMT GOWRAMMA W/O MALLAPPA (IST DEFENDANT)

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AGED ABOUT 49 YEARS,

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R/AT MUDACHINTHALAHALLI VILLAGE,

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KASABA HOBLI,

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CHINTAMANI TALUK, CHICKBALLAPURA DISTRICT

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SRI NARAYANASWAMY S/O LATE BEERAPPA, AGED ABOUT 52 YEARS, R/AT MUDACHINTHALAHALLI VILLAGE,

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KASABA HOBLI,

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CHINTAMANI TALUK, CHICKBALLAPURA DISTRICT

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…RESPONDENTS

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HC-KAR

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(BY SRI. D.R. RAJASHEKHARAPPA, ADVOCATE FOR R3; R1 AND R2 ARE SERVED)

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THIS RSA FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 1.10.2013 PASSED IN R.A.NO.46/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., CHINTHAMANI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 1.7.2011 PASSED IN OS.NO.217/2009 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC., CHINTAMANI.

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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 ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is arising from the concurrent finding in a suit for declaration and injunction.

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The plaintiffs claimed declaration of title for property bearing Sy.No.46/2 measuring 1.19 guntas in Gollahalli Village, Kasaba Hobli, Chintamani Taluk.

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The plaintiffs' case is as under:

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HC-KAR

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Plaintiffs claim ownership of the property based on the registered partition deed dated 08.04.1953 and registered gift deed dated 20.09.1956. One Beerappa was the propositus. Chikkaiah@Dodda Chikkaiah, the last son of Beerappa is the plaintiffs' father and Chikkaiah@Dodda Chikkaiah died during the pendency of the suit.

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The plaintiffs claim that their father Chikkaiah@Dodda Chikkaiah was allotted the suit property in the partition of 1953 and on 20.09.1956, Chikkaiah@Dodda Chikkaiah executed a gift deed along with his two sons namely Adivappa and Beerappa, who are the brothers of the plaintiffs.

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The suit is filed on the premise that Malappa S/o Chikkachikkaiah, the grandson of Doddamalappa, got his name entered in the property records by taking advantage of the situation that his name resembles with Chikkaiah the plaintiffs' father and thereafter, the property was sold to Narayanaswamy, who is also the grandson of Doddamalappa from his elder son Beerappa.

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HC-KAR

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The plaintiffs claim that despite there is a sale deed, Narayanaswamy, has not acquired any right over the property as the seller did not have any title of the property. The property belonged to Chikkaiah@Dodda Chikkaiah, the plaintiffs' father and based on the registered partition deed dated 08.04.1953 and registered gift deed dated 20.09.1956, the plaintiffs have acquired absolute ownership and possession of the property.

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Defendant No.1-Malappa and defendant No.2 his wife Gowramma did not contest the suit, and remained exparte. The purchaser - Narayanaswamy appeared and did not file written statement. Defendants did not lead any evidence. However, defendant No.3 was permitted to cross-examine the plaintiffs without there being any written statement.

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The trial Court concluded that the registered partition deed dated 08.04.1953 is not established as the said document is not marked in evidence. It is relevant to notice that original partition deed dated 08.04.1953 is not produced, however the certified copy was produced and evidence is led stating that original is not available.

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HC-KAR

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The Appellate Court came to the conclusion that the

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plaintiffs are not in possession based on the stray statement in the cross-examination of PW.1 who stated that pursuant to the registered sale deed, defendant No.3 is in possession of the property. Hence, the appeal is filed before First Appellate Court.

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Before First Appellate Court, the

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plaintiffs/appellants filed an application for production of additional documents namely one more certified copy of the registered partition deed dated 08.04.1953 and also the orders passed by the Revenue Officials who cancelled the mutation entry in the name of Narayanaswamy and also the vendor of Narayanaswamy namely Malappa.

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The application for production of additional documents was rejected by Appellate Court on the premise that these documents are obtained subsequent to filing of the suit and no case is made out for production of additional documents. Consequently, Appellate Court also dismissed the appeal. Hence, the present second appeal.

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HC-KAR

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This appeal was admitted on 22.08.2014 to

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consider the following substantial questions of law:

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"1. When the appellants had pleaded that the suit property fell to the share of Chickaiah @ Dodda Chickaiah in a partition and inturn it was a gifted by him and his other two sons under Ex.P5 to the appellants and when the gift deed was more than 30 years old as on the date when the suit was filed, whether the Courts below were justified in dismissing the suit seeking the relief of declaration and injunction on the ground that gift deed has not been proved?

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2. When the appellants filed an application under the provisions of Order 41 Rule 27 of CPC seeking permission to produce the certified copy of partition deed of the year 1953 which evidences the title of the appellants to the suit property and also produced the other records which are necessary to prove their case, despite the appellants having made out a ground to produce additional evidence, whether the First Appellate Court was justified in rejecting I.A.No.1 filed under Order 41 Rule 27 of CPC?

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3. When the respondents did not file any written statement and did not adduce any evidence, whether the Courts below were justified in calling upon the plaintiffs to produce evidence to prove the gift deed and in inturn committed injustice to the appellants in dismissing the suit filed by them?"

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HC-KAR

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The registered partition deed of 1953 is not disputed. The properties allotted to the share of Chikkaiah@Dodda Chikkaiah, who is the father of plaintiffs. Merely because the document is not marked due to inadvertence, the Court could not have refused to look into the said document, is the submission on behalf of appellant.

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It is his further submission that original gift deed is produced but the trial Court and the Appellate Court erred in holding that the gift deed is not established on the premise that the donor is not examined and the attesting witnesses to the gift deed are not examined.

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It is also submitted that the trial Court erroneously

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held that the donees have not accepted the gift deed as they have admitted that the purchaser is in possession of the property.

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Learned counsel would urge that the nonexamination of the attesting witnesses to the gift deed is not fatal to the case as execution is not disputed and the law does

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not mandate examination of attesting witnesses to the gift deed as long as execution is not disputed.

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It is also urged that there was no dispute relating to the gift deed as the defendants have not filed any written statement denying the execution of the gift deed. Thus, it is urged that the trial Court and the Appellate Court erred in dismissing the suit despite the plaintiffs producing unimpeachable documents to establish the title and possession.

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It is also urged that the stray sentence in the crossexamination could not have been relied upon to say that the plaintiffs are not in possession of the property. Learned counsel would refer to subsequent orders passed by the Revenue Officials deleting the name of the purchaser-defendant No.3 and urged that defendant No.3 is not in possession of the property and Appellate Court committed a serious error in rejecting the application for production of additional documents namely the orders passed by Revenue Officials during the pendency of the appeal.

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HC-KAR

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Learned counsel for defendant No.3 would submit

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that the trial Court and the First Appellate Court are justified in holding that the plaintiffs are not the owners as the registered partition deed of 1953 is neither marked nor established or proved. Learned counsel for defendant No.3 would also submit that respondent No.3 has filed an application for production of additional documents to establish his right over the property. He would also submit that defendant No.3 could not contest the matter before the trial Court though he had engaged Advocate and could not file written statement due to unavoidable circumstances.

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This Court has considered the contentions raised at the Bar and perused the records.

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It is noticed that the registered partition deed dated 08.04.1953 was indeed produced before the trial court but due to inadvertence it is not marked. The execution of registered partition deed dated 08.04.1953 is not in dispute. It appears that both parties are claiming right over the property on the basis of the very same partition deed dated 08.04.1953. This

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being the position, the trial Court ought to have considered the undisputed registered partition deed dated 08.04.1953.

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The only question is who is allotted the shares in the suit property in the said partition deed of 1953. This Court is also of the view that the Appellate Court committed an error rejecting the application for production of additional documents more particularly the document dated 08.04.1953 i.e., the registered partition deed which is not disputed by any of the parties and it is also relevant to notice that the orders passed by the Tahsildhar and Assistant Commissioner related to the mutation pertaining to property will also be relevant document which may have bearing on the outcome of the proceeding.

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Those documents ought to have been accepted subject to all just exceptions, however the application is rejected.

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It is also noticed that defendant No.3 who claims to purchase the property under the registered sale deed has not filed any written statement though engaged the Advocate to contest the matter. Considering the nature of the controversy

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HC-KAR

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involved in the case, also considering the fact that the dispute is pertaining to immovable property, this Court is of the view that opportunity be given to defendant No.3 to contest the matter by filing written statement though there is inordinate delay on the part of defendant No.3 in not contesting the suit by filing written statement.

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Under these circumstances, the applications filed by the appellants as well as respondent No.3 for production of additional documents are allowed.

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Defendant No.3 and if any other defendants intend

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to contest the matter, the trial Court shall permit them to contest the matter by filing written statement. It is made clear that nothing is expressed on the merits of the matter. Hence, the following:

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ORDER

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(i) Appeal is allowed-in-part .

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