C.C. Chandre Gowda, C.C. Harish and Others vs C.N. Ramappa Gowda

The appellants are Challenging the legality and correctness of the Judgment and decree passed by the Civil Judge, (Sr. Dn.), Chickmagalur dt. 28.1.2004 in O.S. No. 197/2002. The aforesaid suit was filed by the Respondent-plaintiff claiming partition and separate possession of Ms 1/2 share in all the plaint schedule properties. The plaintiff and defendants are relatives. The defendants did not file the written statement. Thereafter Ramappa Gowda, the plaintiff in the suit got examined himself as PW1. He relied upon Ex. P1 to P10. Since written statement was not field, he was not cross-examined. The Trial Court decreed the suit on the ground that the affidavit of the plaintiff has not been challenged.

Challenging the legality and correctness of the Judgment and decree dt. 28.1.2004, the present appeal is field.

In this appeal, an application was field by the appellant to grant stay of the Judgment and decree of the Trial Court, But the same was refused by this Hon''ble Court However the Trial Court was directed to proceed with the final decree subject to the result of this appeal.

Now the final decree proceeding are closed. According to the Respondent-plaintiff, he has taken possession of the property allotted to his share on 21.12.2005 and he has been in possession of the property.

The learned counsel for the appellants submits that the Trial Court has decreed the suit without assigning any reason how the plaintiff is entitled for 1/2 share in the suit property. According to him, the reasoning of the court below is only one paragraph. From, reading of the said reasoning, no court can hold that the plaintiff is entitled for 1/2 share in the property. Along with the appeal, an application is also filed to produce additional documents and additional evidence. His said application is opposed by the counsel for the Respondent.

The learned counsel for the appellants mainly relying upon the reasoning of the Trial Court contends that the Trial Court has committed a serious error in decreeing the suit without giving, opportunity for the appellants. In the circumstances, lie requests the court to set aside the Judgment and decree and remand the matter to the Trial Court.

Per contra, the Learned counsel for the respondent submits that the appeal has become infructuous in view of the Respondent taking possession of his 1/2 share in the plaint schedule property pursuant to the final decree. He submits that the reasoning of the Trial Court is based on the evidence of the plaintiff, therefore there is no necessity to allow the appeal and request the court to dismiss the appeal.

Having heard the counsel, for the parties, we have to consider the following two point in this appeal:

1) Whether the Trial Court is justified in decreeing the suit?

2) Whether the appeal has to be dismissed in view of the Respondent taking possession of the property pursuant to the final decree passed by the court below?

So far as the first point is concerned, we have noticed that the appellants. herein did not file the written statement. PW1 has also not been cross-examined. We have perused the Judgment and decree of the Trial Court. The entire Judgment rests on one paragraph. We would like to reproduce the reasoning portion of the Trial Court as hereunder:

During trial the plaintiff is examined as P.W.1, he has reiterated the plaint averments in his evidence. He is not cross-examined by the defendants'' counsel. In support of his case the plaintiff has also produced Exs. P.1 to P.10 they are preliminary records. Atlas, Tippam book, R.R. pakka book, settlement akarbandh, sale deeds etc. The defendants though appeared through their counsel have not chosen to file the written statement and deny the case of the plaintiff. When the defendants have not denied the case of the plaintiff, there is no reason to disbelieve the case of the plaintiff. The documents produced by the plaintiff also supports the case of the plaintiff. Hence the plaintiff is entitled for the relief as he has claimed in the plaint. Accordingly, I answer the point in the affirmative and pass the following order.

ORDER

The suit of the plaintiff is hereby decreed against the defendants as follows:

The plaintiff is entitled for partition and separate possession of his half share in the suit schedule property.

There shall be a separate enquiry with respect to mesne profits U/o. 20 rule 18 and also U/o 18 rule 12 CPC.

Admittedly, the suit is for partition and separate possession. Even though written statement is not filed and PW1 is not cross-examined, it is for the court below to find out how the plaintiff is entitled to claim 1/2 share in the properly. But the entire reasoning of the Trial Court does not disclose on what basis the Trial Court has decreed the suit holding that the plaintiff is entitled for 1/2 share, when the Trial Court is dealing with the rights of the parties in respect of immovable properties. Even though the defendants have not contested the suit, it is for the Trial Court to consider the case of the parties on merits and based on the documents produced by the plaintiff by appreciating the evidence, the court is required to grant decide, Merely because the evidence of PW1 is not challenged, the Trial Court is not expected to decree the suit without holding how the plaintiff is entitled for 1/2 share in the property. Therefore, we are of the opinion that the Trial Court has committed an error in holding that the plaintiff is entitled for 1/2 share without there being any discussions in regard to the rights of the parties in respect of the suit property, Accordingly, point-1 is answered in favour of the appellant.

So far as the second point is concerned, even if Respondent has taken possession of 1/2 share in the plaint schedule property pursuant to a final decree, taking up possession of the property by the Respondent-plaintiff would be subject to the order passed by this court on 24.5.2005. This Hon''ble Court has clearly stated while rejecting the Interim order of stay in favour of the appellants that the final decree proceedings would, be subject to the result of the appeal Therefore, even if the plaintiff-Respondent has taken possession of the properly, the same would be subject to the result of this appeal. In view of our finding on point-1, taking of possession by the Respondent-plaintiff is of no consequence to dismiss this appeal.

In the result, the appeal is allowed, The Judgment and decree passed by the Civil Judge, (Sr. Dn.) Chickmagalurm dt. 28.1.2004 passed in O.S. No. 197/02 is hereby set aside and the matter in remanded to the Trial Court to reconsider the matter afresh. The appellants shall file the written statement and produce the documents within four weeks from today and the Trial Court shall proceed with the matter without granting any adjournment and dispose of the suit on merits and in accordance with law within a period of six months from today. The possession taken by the Respondent-plaintiff under the final decree proceeding would be subject to the result of the suit.