Harish Patil Vs Smt Akkamma

KUM. CHINNU D/O LATE SHIVAKUMAR PATIL AGED ABOUT 11 YEARS, MINOR BY NATURAL GUARDIAN MOTHER SMT. AKKAMMA BOTH ARE R/O TAVARAGUNDI VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT - 583 131

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PATIL HALAPPA @ HALANAGOUDA DEAD BY LRS ON RECORD

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SMT. GEETHA W/O VEERESH MANARTHI AGED ABOUT 40 YEARS, MANDARTHI, UDUPI TALUK

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HC-KAR

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UDUPI DISTRICT - 576 223

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SMT. POORNIMA W/O BANAKARA SURESH AGED ABOUT 39 YEARS, R/O TAVARAGUNDI VILLAGE, HARAPANAHALLI TALUK DAVANAGERE DISTRICT

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…RESPONDENTS

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(BY SRI. S B HALLI, ADV. FOR R1; R2 IS MINOR REP. BY R1; R3 AND R4 - SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 10.07.2018 PASSED IN RA.NO.4/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARAPANAHALLI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2016 PASSED IN OS.NO.84/2011 ON THE FILE OF THE CIVIL JUDGE AND JMFC HARAPANAHALLI AND ETC.

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THIS APPEAL, COMING ON FOR REPORTING SETTLEMENT, 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 appellant

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challenging the judgment and decree dated 10.07.2018 passed in R.A.No.4/2017 by the learned Senior Civil Judge and J.M.F.C., at Harapanahalli.

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For convenience, the parties are referred to, based

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on their rankings before the trial Court. The Appellant was

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defendant No.4, respondent Nos.1 and 2 were the plaintiffs, and the other respondents were the defendants.

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

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The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that the plaintiffs and defendants are the members of a Hindu joint family and the suit schedule properties are the joint family and ancestral properties. No partition is effected between the plaintiffs and defendants and it is contented that defendant No.2, her husband and defendant No.4 have created a gift deed dated 19.04.2010 regarding item No.1 of the suit property, and the same is not binding on the rights of the plaintiffs. It is contended that item No.1 of the suit property is purchased from joint family funds in Kotrabasamma’s name. Hence, the plaintiffs demanded partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for

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partition and separate possession. Accordingly, the prays to decree the suit.

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Defendants Nos.1 to 3, despite service of summons,

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remained unrepresented and were placed ex-parte. Defendant No.4 filed a written statement admitting the relationship between the parties, and contended that item No.2 is the only ancestral property. The father of defendant No.4 came to Arasanal village about 45 years ago, and they went to Sagar Taluk and started to reside there. It is contended that defendant No.1 married Kotrabasamma, and after the marriage, they led a happy married life at Sagar Taluk, and both were doing a small hotel business. Further, for the welfare of children, Kotrabasamma was also running a small business in the house, and earn money. Out of the income from the petty business, she purchased item No.1 of the suit schedule property on 12.12.1988. Further, Kotrabasamma executed a registered gift deed in favour of defendant No.4 out of love and affection on 19.04.2010. Further, the defendant

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mortgaged item No.1 in Sri. Ganapathi Urban Co-operative

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Bank and, obtained the loan to repair the house. The plaintiffs and the other defendants have no right, title and interest over item No.1 property. Hence, he prays to dismiss the suit.

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

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1. Whether the plaintiffs prove that they are

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the members of Hindu Joint family and suit schedule properties are their joint family ancestral properties and they are available for partition?

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1. Whether the plaintiffs prove that the defendant No.2 and her husband and 4^th defendant have created the gift deed dated 19.04.2010 in respect of item No.1 of the suit property and same is not binding on the rights of the plaintiffs?

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1. Whether the defendants prove that Smt. Kotrabasamma had purchased the item

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No.1 property through her own income

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and the said property is her self-acquired

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property?

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Whether the defendants further prove that

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the Court fee paid by the plaintiffs is insufficient?

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Whether the plaintiffs are entitled to get

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1/5^th share in the suit schedule properties?

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What order or decree?

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The plaintiffs, to substantiate their case, plaintiff No.1

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was examined as PW.1, one witness was examined as PW.2 and 13 documents were marked as Exs.P1 to P13. In rebuttal, defendant No.4 examined himself as DW.1, defendant No.2 was examined as DW.2, and 26 documents were marked as Exs.D1 to D26.

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The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence, answered issue Nos.1 and 5 partly

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in the affirmative, issue Nos.2 and 3 in the affirmative, issue No.4 in the negative and issue No.6 as per the final order. The suit of the plaintiff was decreed in part vide judgment dated 30.11.2016.

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Defendant No.4, aggrieved by the judgment and preliminary decree passed in O.S.No.84/2011, preferred an appeal in R.A.No.4/2017, on the file of the Senior Civil Judge and JMFC, Harapanahalli.

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The First Appellate Court, after hearing the learned

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counsel for the parties, framed the following points for consideration:

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1. Whether judgment and decree passed by the trial Court is perverse, illegal, capricious one sided and interference of this appellate Court is necessary?

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1. Whether the trial Court has failed to appreciate the oral and documentary evidence in a proper prospective manner?

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1. What order?

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During the pendency of the appeal, defendant No.4 filed an application under Order XLI Rule 27 of the Civil Procedure Code in I.A.No.3 on 04.02.2017. The first Appellate Court after hearing the learned counsel for the parties, answered point No.1 and 2 in the negative, and point No.3 as per the final order. The appeal was dismissed vide judgment dated 10.07.2018.

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Defendant No.4, aggrieved by the judgment and decree passed in R.A.No.4/2017, filed this Regular Second Appeal.

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Heard the arguments of Smt. P.V. Kalpana for Smt.Vijaya M.N, learned counsel for defendant No.4.

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Learned counsel for defendant No.4 submits that defendant No.4 filed an application in I.A.No.3 before the First Appellate Court for the production of an additional evidence. She submits that the First Appellate Court, without passing any order on I.A.No.3, has proceeded to

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pass the impugned judgment. To buttress her arguments,

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she has placed reliance on the judgment of the Co-ordinate bench of this Court in the case of NINGAPPA (DECEASED) BY LRS VS. SHIVAPPA (DECEASED) BY L.RS AND OTHERS reported in 2015(1) KCCR 292 . Hence, on these grounds, she submits that the appeal may be allowed, and the judgment, and decree passed by the first Appellate Court may be set aside, and the matter be remitted to the first Appellate Court to consider I.A.No.3 and to pass the appropriate order.

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Per contra , learned counsel for the plaintiffs fairly concedes that the first Appellate Court has not passed any order on I.A.No.3, and accordingly the appeal may be disposed of.

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This Court, admitted the appeal, to consider the following substantial question of law :

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“ Whether the First Appellate Court

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is justified in passing the

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impugned judgment without

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passing any order on I.A. No.3? ”

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Perused the records, and considered the submissions

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of the learned counsel for the parties.

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REG. SUBSTANTIAL QUESTION OF LAW:

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It is not in dispute that defendant No.4 filed an application for the production of additional evidence on 04.02.2017 under Order XLI Rule 27 of the Civil Procedure Code. The plaintiffs have not filed any objections to the said application and the matter was adjourned to hear the said application along with the main appeal. The first Appellate Court, dismissed the appeal vide judgment dated 10.07.2018. However, the application filed on 04.02.2007, under Order XLI Rule 27 of the Civil Procedure Code, was not considered by the first Appellate Court, while deciding the appeal. The Hon’ble apex Court in the case of JATINDER SINGH & ANR.MINOR TR. MOTHER VS. MEHAR

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SINGH & ORS reported in 2009 (17) SCC 465 , in identical

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circumstances, the Hon’ble Apex Court held in para 4,

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which reads as follows:

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“4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.”

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18. The application filed under Order XLI Rule 27 of the

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Civil Procedure Code has to be considered at the time of hearing the appeal on merits so as to find out, whether the

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documents and the evidence sought to be adduced, raises

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any issue. Since, the first Appellate Court has not considered the application filed by defendant No.4, no order was passed on the application, and ultimately dismissed the appeal, the judgment and decree passed by the first Appellate Court is liable to be set aside.

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In view of the above discussion, I answer the substantial question of law in the negative.

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Accordingly, I proceed to pass the following order:

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ORDER

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i. The Regular Second Appeal is allowed.

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ii. The judgment and decree dated 10.07.2018 passed in R.A.No.4/2017 by the learned Senior Civil Judge and JMFC, Harapanahalli, is set aside .

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iii. R.A.No.4/2017 is restored to its original file.

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iv. The first Appellate Court is directed to decide the application in I.A.No.3 and the appeal, keeping in view, the provisions of Order XLI Rule 27 of the Civil Procedure Code, and pass the judgment in accordance with law.

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v. The Office is directed to transmit the records to the first Appellate Court forthwith.

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vi. In view of the disposal of the appeal, pending IA’s, if any, do not survive for consideration, and are accordingly disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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KG,SKS List No.: 2 Sl No.: 2

Harish Patil v. Smt Akkamma

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Harish Patil v. Smt Akkamma

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