Banajigara Kotramma vs Banajigara Lalitamma

H.G. Ramesh, J.—This second appeal is by the defendant. I have heard the counsel appearing for the appellant and perused the judgments of the two courts. By the impugned judgment, the first Appellate Court has set aside the judgment of the trial Court and has remitted the matter to the trial Court for fresh disposal in accordance with law inter alia by permitting the plaintiff to produce certain documents as additional evidence.

In support of the sole contention that the first Appellate Court ought not to have entertained the application filed by the respondent-plaintiff under Order 41 Rule 27 of the CPC for production of additional evidence, the counsel has relied on the judgment of the Supreme Court in Union of India (UOI) Vs. Ibrahim Uddin and Another, .

Counsel for the appellant also submitted that the respondent has died and the LRs of the respondent will have to be brought on the record of this appeal. It is relevant to state that no notice was ordered to the respondent in this appeal. To examine as to whether this second appeal merits admission, the presence of the LRs of the respondent is not necessary.

The husband of the appellant (defendant) and the husband of the respondent (plaintiff) are full brothers. The suit filed by the respondent - plaintiff for declaration and injunction in respect of the suit property measuring 2 acres was dismissed by the Trial Court. The plaintiff carried the matter in appeal to the first Appellate Court and in the appeal, filed an application to produce a registered partition deed, a mortgage deed and two registered sale deeds as additional evidence.

It is relevant to refer to the following reasoning of the first Appellate Court for allowing the application filed for production of additional evidence and for remitting the matter to the Trial Court for fresh disposal:

"35. I have carefully examined the facts and circumstances of the case and the documents sought to be produced by the appellant. I have also gone through the reasonings of trial Court as well as principle laid down in the judgment of Hon''ble Supreme Court reported in Union of India (UOI) Vs. Ibrahim Uddin and Another, .

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It is admitted fact that, the plaintiff and defendant husbands are full brothers. Defendant claims that the property 2.20 acres fallen to her husband share and after his death she has become the owner which is undisputed by the plaintiff.

The plaintiff trying to exercise her right title and interest over the suit property, through her deceased husband. But the trial Court has turned down her claim only on the ground that, she failed to produce the title deeds, therefore, now let me see whether documents produced by the appellant/plaintiff are title deeds or not.

Document No. 1 is a registered partition deed dated 23.11.1950. This document shows that partition of family properties among 7 brothers. One of the brother is none other than the appellant/plaintiff husband.

Document No. 2 is mortgage deed dated 23.05.1966. Document No. 4 and 5 are the registered sale deeds dated 25.06.1969 and 24.04.1970. These two deeds discloses the name of plaintiff husband Veerappa.

I do not want to say how these documents will help the appellant/plaintiff to prove her title over the suit schedule properties because it may embarrass the trial court.

At present it is suffice for me to state that, these documents are vital documents which ought to have been produced before the trial Court. But because of sleeping attitude of the counsel of plaintiff before the trial Court and the illiteracy of plaintiff made these documents not to see the light of day before the trial Court.

In the light of these reasons what I am of the opinion is that, the appellant/plaintiff has made out good grounds for allowing the production of additional documentary evidence as prayed for.

In my considered opinion, the production of these documents will not take away any legitimate right of the defendant upon her property................................................................"

(Underlining supplied)

I have examined the matter in the light of the judgment of the Supreme Court referred to above. I find no legal infirmity in the reasoning of the first Appellate Court referred to above. In my opinion, the impugned judgment does not suffer from any legal infirmity warranting interference by this Court. The appeal is accordingly dismissed. However, as the suit is of the year 2010, the Trial Court is directed to dispose of the suit expeditiously and in any event within six months from the date of receipt of a copy of this order.

Appeal dismissed.