Sri Anwar Khan S/O Late Bahaddur Khan Vs Sri Mahaboob Khan S/O Late Sri Abdul Basheer Khan

SMT. TAHIRA JAN, SINCE DECEASED REPRESENTED BY HER LR SHRI. MANSUR SHARIEFF S/O. LATE BAHADDUR KHAN, MAJOR, SONRESIDENT OF NO.641, 2^ND CROSS RAJIV NAGAR II STAGE, MYSURU 570001.

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SMT NOOR JAN, D/O LATE BAHADDUR KHAN AGED ABOUT 70 YEARS, R/AT NO 84, KHB COLONY EWS II STAGE, II CROSS UDAYAGIRI, MYSORE 570 001

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…RESPONDENTS

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(BY SRI. B R SATENAHALLI.,ADVOCATE FOR R1 AND R3, R5 TO R7, R9,R10, R12 TO R14, R16 AND R17(A).

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(BY SRI.N.SHANKARANARAYANA BHAT FOR R2, R8(A-D), R17(A) AND R18)

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V/O DATED 19.09.2016 NOTICE TO R15 IS HELD SUFFICIENT

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V./O DATED 29.03.2019 APPEAL AGAINST R4 AND R11 ARE DISMISSED AS ABATED.)

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V/O DATED 31.01.2020 R12 TO R16 ARE TREATED AS LR'S OF DECEASED R11

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V/O DATED 31.01.2020 R5-R7, R9 AMD R10 ARE TREATED AS LR'S OF DECEASED R4

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 8.1.2013 PASSED IN R.A.NO.676/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-IV, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 25.10.2010 PASSED IN OS.NO.807/2008 ON THE FILE OF III ADDITIONAL I CIVIL JUDGE (JR.DN.) AND JMFC, MYSORE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: 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 challenging the judgment and decree dated 08.01.2013 passed in RA.No.676/2011 by the Presiding Officer, Fast TracK Court, Mysore and the judgment and preliminary decree dated 25.10.2010, passed in O.S.No.807/2008 by the learned III Additional I Civil Judge, Junior Division and JMFC, Mysore.

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For convenience, parties are referred to based on their ranking before the Trial Court. Appellant was defendant No.1, respondent Nos.1 to 16 were the plaintiffs and respondent Nos.17 and 18 were the other 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 the suit against the defendants for partition and separate possession. It is the case of the

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plaintiffs that one late Bahadur Khan, had 8 children i.e., 4 sons and 4 daughters and the suit schedule properties were owned and possessed by late Bahadur khan and the plaintiffs and defendants are the tenants in common. Bahadur Khan was died in 1956 leaving behind his children and there is no partition in respect of suit schedule properties between the plaintiffs and the defendants. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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4. Defendant No.1 filed a written statement

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admitting the relationship between the parties to the suit. It is contended that 'B' schedule property was belonged to One Chikkamuniswamy Shetty Choultry and the same was managed by Tahasildar, Mysore and defendant No.1 is a tenant of 'B' schedule property and late Bahadur Khan was not in possession of 'B' schedule property. It is admitted

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that defendant No.1 and the plaintiffs were in the occupation of 'A' schedule property and the quantum of share, claimed by the plaintiffs is denied as defendant No.1 is also entitle to a share in the said property. It is also contended that Defendant Nos.2 and 3 and deceased sisters of defendant No.1 have executed the relinquishment deed in favour of defendant No.1 and therefore, he is entitled for their share. Hence, prays to dismiss the suit against the defendant No.1.

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Defendant Nos.2 and 3 filed a written statement admitting the relationship between the parties and prays to decree the suit by allotting the share to defendant Nos.2 and 3 and further, defendant Nos.2 and 3 filed an additional written statement contending that they never executed Hakku Kulase Pathra in favour of defendant No.1 in respect of 'A' schedule property. The said alleged deed of relinquishment is created. Hence, prays to decree the suit.

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The trial Court, based on the pleading of the

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parties, framed the following issues.

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1. Whether the plaintiffs prove that after death of late.Bahaddur Khan the plaintiffs father and defendants are in joint possession in the suit schedule property as tenants-in-common?

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2. Whether 1^st defendant proves that 2^nd and 3^rd defendant have relinquished their right over their share in respect of the ancestral property in favour of 1^st defendant by executing Hakku Kulase Pathra on 15.04.1998 and 19.10.2000 respectively by receiving an amount?

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3. Whether defendants prove that plaint B schedule property is not an ancestral property of plaintiff and defendants?

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4. Whether plaintiffs prove that they are entitle separate possession of 6/10^th share in the suit schedule property?

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5. Whether plaintiff proves that they are entitle mesne profit as prayed for?

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6. What order or decree?

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The plaintiffs, to prove their case, plaintiff No.1 was examined as PW1 and plaintiff No.8 was

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examined as PW2 and marked 9 documents as Ex.P1

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to Ex.P9.

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In rebuttal, despite granting sufficient

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opportunities, none of the defendants chose to enter the witness box and adduce evidence. Hence, no documents were marked on behalf of the defendants. The trial Court, after recording the evidence of plaintiffs' side, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 3 and 5 in the affirmative, issue No.2 in the negative, issue No.4 partly in the affirmative, issue No.6 as per the final order.

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The suit of the plaintiffs was decreed with costs. It is ordered and declared that, the plaintiffs are entitled to 6/10^th share each in respect of 'A' schedule property only and it is ordered that there shall be an enquiry under Order 20 Rule 12 of CPC. Defendant No.1, aggrieved by the judgment and preliminary decree passed in O.S.No.807/2008, preferred an

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appeal in R.A.No.676/2011 on the file of FTC, IV, Mysore.

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The first appellate Court, on hearing

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learned counsel for the parties, framed the following points for consideration.

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1 . Whether I.A.No.3 under order 41 rule 27 of C.P.C deserves to be allowed?

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2. Whether the judgment and decree passed by the trial Court is capricious, illegal and call for interference by the appellate Court?

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3. What order?

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The appellate Court, after re-assessing the

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verbal and documentary evidence, answered point Nos.1 and 2 in the negative, point No.3 as per the final order. The first appellate Court dismissed the appeal vide judgment and decree dated 08.01.2013. Defendant No.1, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for

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defendant No.1 and the plaintiffs.

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Learned counsel for defendant No.1 submits that defendant Nos.2 and 3 have relinquished their respective shares in favour of defendant No.1 by executing an unregistered relinquishment deed. He submits that defendant No.1 became the absolute owner of the suit schedule 'A' property of his share and defendant Nos.2 and 3's shares. He also submits that the trial Court has not provided a sufficient opportunity for defendant No.1 to lead the evidence. He submits that defendant No.1 filed an application for production of additional evidence before the first appellate Court. The first appellate Court, without considering the reasons assigned by defendant No.1 for the production of additional evidence before the first appellate Court, rejected the application. He submits that the rejection of an application for the production of the additional evidence is arbitrary, erroneous and perverse. He submits that in case the Court is of the opinion that the

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appellant/defendant No.1 has not made out grounds to entertain the appeal, a liberty may be reserved in favour of defendant No.1 to make an application before the FDP Court for auctioning the suit 'A' schedule property.

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Per contra, learned counsel for the plaintiffs submits that there is no dispute in regard to the relationship between the plaintiffs and defendants. He also submits that, schedule 'A' property was owned and possessed by Late Bahadur Khan. He died, leaving behind the plaintiffs and defendants. The plaintiffs and defendants have succeeded in the 'A' schedule property. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect the partition. He submits that, when there is no dispute in regard to the relationship between the parties to the suit and the property owned and possessed by Late Bahadur Khan, after his demise, the plaintiffs and defendants became tenants in common and they are entitled to a 1/6^th share each as per the Shia Law. He submits that the trial Court has provided a

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sufficient opportunity for defendant No.1 to lead the evidence. Despite granting sufficient opportunity, defendant No.1 did not avail the sufficient opportunity. He also submits that the first appellate Court was justified in rejecting an application for the production of additional evidence. He further submits that, even if the said application was allowed, the proposed document is inadmissible in evidence. It is an unregistered relinquishment deed. It is not registered as required under Section 17 of the Registration Act. Hence, judgments and decrees passed by the Courts below are just and proper and do not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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This Court admitted the appeal on 17.02.2020 to consider the following substantial questions of law:

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1. Whether the first appellate Court was justified in rejecting the application filed under Order XLI Rule 27 of CPC to place on record the relinquishment deeds dated 15.04.1998 and

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19.10.2000 by which the plaintiffs relinquish their claim in the suit property?

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2. Whether the Courts below were justified in decreeing the suit for partition declaring that the plaintiffs are entitled for 6/10^th share in the suit schedule 'A' property?

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Regarding Substantial Question No.1

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Defendant No.1 filed an application for production of the additional evidence under order 41 Rule 27 of CPC and enclosed the documents i.e., unregistered relinquishment deeds. Defendant No.1 filed IA.No.3 under Order 41 Rule 27 of CPC for the production of additional evidence. It is stated that, Defendant Nos.2 and 3 have executed relinquishment deeds dated 15.04.1998 and 19.10.2000 relinquishing their share in favour of defendant No.1 and it is stated that the said documents were confronted by PW1 and PW2 during the course of cross examination and the said documents could not be produced before the Trial Court and the defendant Nos.2 and 3 filed a written statement denying the execution of

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relinquishment deeds dated 15.05.1998 and 19.10.2000 and it is stated that the said documents owe to the route of the case and it is also stated that, defendant No.1 had performed the marriage of defendant Nos.2 and 3. Hence, he prays to allow the application.

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Defendant Nos.2 and 3 filed a written statement on 28.08.2008 and also filed an additional written statement on 06.09.2008 wherein the defendant Nos.2 and 3, specifically denied the execution of alleged relinquishment deeds in favour of defendant No.1. The trial Court framed the issues. Thereafter, plaintiff No.1 was examined as PW1 and plaintiff No.8 was examined as PW2 and marked 9 documents as Ex.P1 to Ex.P9. During the cross examination of PW1, defendant No.1 confronted the unregistered relinquishment deeds and the said deeds were not admitted by the plaintiffs witnesses. The plaintiffs closed their side on 02.02.2009 and the matter was listed for defendants' evidence on 09.02.2009. At the request of learned counsel for the defendants, the matter

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was listed for an adjournment to 16.02.2009. On 16.02.2009, the defendants filed an application in IA.No.7 to recall PW2 for cross examination. The said application was allowed on the same day and permitted the defendants to cross examine PW1. From 16.01.2010 to 09.02.2010, there was no representation on behalf of the defendants and further from the perusal of the order sheets of trial Court, it discloses that the trial Court has provided a sufficient opportunities to the defendants to lead their evidence. Despite availing a sufficient opportunities, the defendants have not chosen to enter into the witness box.

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Defendant No.1 did not produce the said documents before the Trial Court. The said documents were produced before the first appellate Court by filing an application in IA.No.3. From the perusal of the contents of the affidavit, it does not disclose that defendant No.1 has not produced the said documents for valid reasons. Though the said documents were in the custody of

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defendant No.1, the defendant No.1, in order to fill up the lacuna, has filed an application for the production of additional evidence.

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The object of Order 41 Rule 27 of CPC is not to fill up the lacuna. The said application can be entertained provided that the documents are necessary for passing the judgment. Admittedly, in the instant case, there is no dispute regarding the relationship between the parties to the suit and 'A' schedule property was owned and possessed by Late Bahadur Khan and there is no partition between the plaintiffs and defendants in 'A' schedule property. As observed above, the defendant No.1 has not entered the witness box. Thus, defendant No.1 has not fulfilled the ingredients of Order 41 Rule 27 of CPC. The application for production of documents cannot be entertained as a matter of right. The first appellate Court has rightly rejected the application for production of the additional evidence. I do not find any error in rejecting an application for production of the additional evidence.

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Admittedly, the plaintiffs have not relinquished their share in the suit schedule 'A' property. Hence, in view of the above discussions, I answer Substantial Question No.1 in the affirmative.

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Substantial Question No.2

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Admittedly, the trial Court considering that the plaintiffs are entitled to limited share, has rightly awarded 6/10^th share in the suit schedule 'A' property. Hence, I do not find any error in the quantum of the share awarded to the plaintiffs. Hence, in view of the above discussions, I answer substantial question No.2 in the affirmative.

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Learned counsel for defendant No.1 submits that the suit 'A' schedule property is a small house and the said suit schedule property is not amenable for partition. He submits that the liberty may be reserved to the defendant No.1 to make an application before the Final Decree Proceedings to make an application regarding auctioning the suit property. His submission is placed on

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