Doddannaiah vs T.M. Govindappa and Others

Aravind Kumar, J.—This second appeal is filed by the unsuccessful plaintiff questioning the correctness and legality of judgment and decree dated 29.03.2011 passed in R.A. No. 93/2009 by Fast Track Court, KGF whereunder judgment and decree passed by Civil Judge (Sr. Dn), KGF in O.S. No. 51/1996 dated 02.07.2009 dismissing the suit for partition and separate possession came to be affirmed.

Above appeal has been admitted on 25.09.2013 to consider the following Substantial Questions of Law:

1) Whether the Courts below are right in relying upon an unregistered unstamped partition deed?

2) Having dismissed the cross-objections, was the first appellate Court right in directing the appellant to file a suit, as the wife of the appellant is not a party to the suit and in whose name the property stands?

3) Whether the first appellate Court could have reversed the finding on additional issue Nos. 1 and 2 dated 24.1.2004 without any appeal or cross-appeal having been filed by 3rd defendant?

4) Was the first appellate Court was right in directing the appellant to file a suit and without assigning reasons for the same and there being any discussion on the issue?

I have heard the arguments of Sri H.R. Ananthakrishnamurthy, learned counsel appearing for appellant and Sri Y.R. Sadasiva Reddy, learned Senior Counsel appearing for respondent Nos. 3, 5 & 6, Sri G.D. Aswathnarayan, learned counsel appearing for respondent No. 4. Respondent Nos. 1, 2, 7(a) to (c) notice is served and in respect of respondent No. 7(d) notice has been held sufficient vide order dated 10.09.2013.

Sri H.R. Ananthakrishnamurthy, learned counsel appearing for appellant/plaintiff would contend that trial Court after having found that suit schedule properties belong to plaintiff''s father, there has been no reference to the documents in the judgment which would disclose that these are joint family properties and there has been absolutely no discussion on these documents and as such, judgment and decree passed by trial Court dismissing the suit of plaintiff for partition and separate possession is to be set aside.

He would elaborate his submission by contending that first appellate Court erred in holding that plaintiff has not included the properties described in the written statement in the suit in question without analyzing the evidence or examining as to whether these properties are joint family properties or not and as such, it erred in arriving at a conclusion that suit for partial partition is not maintainable. On these grounds he seeks for setting aside the judgment and decree passed by both the Courts.

He would also contend that respondent No. 2 did not file any cross appeal or independent appeal against additional issue Nos. 1 and 2 being aggrieved by finding recorded by trial Court in favour of plaintiff and as such, first appellate Court ought not to have gone into said issues and recorded a finding that properties described in the written statement are joint family properties, particularly in the backdrop of finding recorded by trial Court that properties described in the written statement are self acquired properties having reached finality. Hence, he contends that First Appellate Court could not have directed plaintiffs to file a fresh suit by including the properties described in the written statement.

He would further contend that some of the properties described in the written statement are standing in the name of plaintiff, his wife and children and when they have not been made parties, no finding could have been recorded in their absence and as such, said direction could not have been issued. He would also submit that there is no evidence to show that properties described in the written statement had been acquired by the plaintiff, his wife and children through joint family nucleus and as such, it could not have recorded a finding that these properties are also joint family properties. On these grounds he contends that judgment and decree passed by first appellate Court be set aside by answering Substantial Questions of Law in favour of the appellant.

Per contra, Sri Y.R. Sadasiva Reddy, learned Senior Counsel appearing for respondents 3, 5 & 6 would support the judgment and decree passed by trial Court as affirmed by first appellate Court and contends that successful defendants, who had been arrayed as respondents before first appellate Court can also contend that judgment and decree passed by trial Court is to be upheld and can also seek indulgence of first appellate Court to reverse the finding recorded on an issue by trial Court in their favour to support such judgment and decree without filing cross-objection or an independent separate appeal. Hence, he would submit that finding recorded by trial Court on issue Nos. 1 and 2 has been rightly negatived by First Appellate Court, which is the first and last Court to re-appreciate the facts and evidence. Hence, he supports the judgment and decree passed by both Courts and prays for dismissing the second appeal by answering Substantial Questions of Law in favour of respondents.

Since substantial questions of law Nos. 1, 2 and 4 being interlinked and any answer to the one would have a bearing on the other, these three questions are taken up together for adjudication. However, it would be appropriate to deal with substantial question of law No. 3 at the outset and answer the same before delving upon substantial questions of law Nos. 1, 2 and 4 after narrating the facts in brief.

FACTUAL MATRIX:

Plaintiff filed a suit for partition and separate possession of ''A'' and ''B'' schedule properties. Schedule ''A'' consisted of 38 items and Schedule ''B'' consisted of 4 items. Schedule ''C'' are movable properties. It was contended by the plaintiff that one Sri Annayya was the original propositus of the joint family and he died leaving behind his three sons Sriyuths Ramegowda, Mudirappa and Munivenkatappa; suit schedule properties came to the share of Sri Ramegowda and it was in joint possession of plaintiff and defendants-3 and 4 who are the sons of Sri Mudirappa. It was contended that plaintiff is employed and on account of his employment, he was staying away from the village and managing affairs of the family through defendants and despite requests made by the plaintiff to convene a panchayat to partition the suit schedule properties amongst joint family members did not yield any result and as such, suit came to be filed seeking for 1/3 share in suit schedule properties and delivery of possession thereof.

Defendants-2 to 7 appeared and written statement was filed on behalf of defendant Nos. 3 to 7. Second defendant did not file written statement and first defendant was placed ex parte. Contesting respondents i.e. defendants-3 to 7 did not dispute the relationship of the parties. However, it was contended that plaintiff is a permanent resident of Bengaluru and he has constructed three houses at Bengaluru; same has been constructed from out of the joint family funds and plaintiff is not entitled to any share in suit schedule properties since there was prior partition on 31.03.1984. By way of alternate plea, it was contended that if the trial Court were to come to a conclusion that no division in the family had taken place, properties described in the Schedule to the written statement standing in the name of plaintiff, his wife and children also will have to be divided which have been earned out of the nucleus of the joint family and as such, they prayed for partition of those properties by metes and bounds. Other averments made in the plaint came to be denied.

Fourth defendant admitted the plaint averments and claimed that he is entitled for 1/3rd share in suit schedule properties. Defendants-6 and 7 adopted the written statement of third defendant. However, it was contended that item Nos. 33 and 34 bearing Sy. Nos. 98 and 97 are self acquired properties granted to them by the Government.

Plaintiff filed his reply to the written statement filed by third and fifth defendants and denied the right of third defendant to claim partition of written statement schedule properties. He however asserted that he was working in MICO and after his retirement in the year 2000, he received retiral benefits to the tune of Rs. 8 lakhs and during his period of service, he had borrowed loan from co-operative Bank and other financial companies to purchase the properties described in the schedule of written statement. He denied that there was any contribution from the nucleus of joint family to purchase the properties described in the schedule of written statement. He further contended that Bangalore Development Authority had allotted a site to him in the year 1981 and sale deed was subsequently executed and he has constructed a house by obtaining loan after mortgaging the property and third defendant has not contributed any amount towards purchase of the property and construction thereof. It was also contended that item No. 3 of the written statement schedule property was allotted to his wife by Bangalore Development Authority in the year 1978 and she has constructed a house and residing therein and it was pleaded that said property is Streedhana property. However, plaintiff asserted that movable properties described in the schedule to the written statement are his self acquired properties.

On the basis of pleadings of the parties, trial Court framed the following issues/additional issues for its determination or adjudication.

(1) "Whether the plaintiff proves that himself and defendants 3 and 4 are members of a Joint Hindu Undivided Family, that the suit schedule properties are their ancestral joint family properties and that they are in joint possession of the same?

(2) Whether the plaintiff proves that the alienation of suit schedule item No. 38, i.e., Survey No. 63/4 measuring 3 acres 17 guntas by defendants 1 to 3 in favour of the 5th defendant, is illegal, void and not binding on him?

(3) Whether the 3rd defendant proves that there was a prior partition dated 31.3.1984 between the plaintiff and defendants 3 and 4?

(4) Whether the 3rd defendant proves the allotment of shares to the parties as contended in paras 19 to 56 of the written statement?

(5) Whether the plaintiff is entitled to partition and separate possession of his 1/3rd share in the suit schedule properties?

(6) Whether the plaintiff is entitled to mesne profits?

(7) What order or decree?

ADDITIONAL ISSUES FRAMED ON 24.01.2004

(1) Whether the 3rd defendant proves that the written statement schedule properties are the joint family properties and acquired out of the nucleus of ancestral properties?

(2) Whether the plaintiff proves that the written statement schedule properties are the self acquired properties of himself, his wife and children as contended in the reply to the amended written statement of D3?

ADDITIONAL ISSUES FRAMED ON 16.11.2005

(1) Whether the defendants 6 and 7 prove that there was a partition as on 31.3.1984 between the plaintiff and defendants 3 and 4?

(2) Whether the defendants 6 and 7 prove that item Nos. 33 and 34 are their self acquired properties?"

After considering pleadings of the parties and on evaluation of evidence, trial Court dismissed the suit. Being aggrieved by the said judgment and decree, plaintiff filed R.A. No. 93/2009 and first appellate court after re-appreciating the evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court.

RE: SUBSTANTIAL QUESTION OF LAW No. (3)

The thrust of the arguments advanced by Sri H.R. Ananthakrishnamurthy, learned Advocate appearing for appellant on this substantial question of law is that trial Court had recorded a finding on additional issue Nos. 1 and 2 framed on 24.01.2004 in the negative and without there being any appeal or cross objections filed by third defendant first appellate Court could not have reversed the finding recorded by trial Court.

A bare reading of judgment and decree passed by first appellate Court in R.A. No. 93/2009 dated 29.03.2011 would indicate that only two points came to be formulated by it for affirming the judgment and decree passed by the trial Court. The points so formulated by the first appellate Court reads:

(1) Whether the judgment and decree passed by the trial Court under appeal is perverse, capricious and arbitrary and it calls for any interference by this Court?

(2) Whether the respondent No. 4 has made out grounds to allow the cross appeal as prayed by him?

(3) What order?"

While adjudicating above points, first appellate Court has held that execution of Ex. D-1 - palupatti propounded by third defendant was not proved. It has been concluded by first appellate Court at paragraph 14 to the following effect:

"14. At the outset, it is relevant to state xxx as per the said partition khata was effected. Hence, the evidence of all these witnesses are not supported to prove Ex. D-1 and the said document has no sanctity in the eye of law. As I already stated above xxx is also not maintainable."

Having recorded the above said finding, it has further held that plaintiff has not at all included the properties described in the schedule to the written statement and as such, it arrived at a conclusion that suit filed by plaintiff for partial partition is not maintainable. The conclusion drawn by the first appellate at paragraph 14 reads:

"However, there is documentary evidence to that effect and without including written statement schedule properties, the suit filed by the plaintiff is not maintainable and the suit for partial partition is also not maintainable."

It is this finding which according to Sri H.R. Ananthakrishnamurthy, learned Advocate appearing for appellant relates to upsetting the finding recorded on additional issue Nos. 1 and 2 by the trial Court. Even if it is accepted that above extracted finding recorded by the first appellate Court amounts to reversing the finding recorded by trial Court on additional issue Nos. 1 and 2 framed on 24.01.2004, it cannot be gain said by the appellant that such power is not available to first appellate Court. Order 41 Rule 22 CPC would clearly indicate that defendant/respondent having succeeded in a suit can not only support the judgment and decree passed by the trial Court for dismissing the suit and in addition to the same, such defendant/respondent can contend that finding recorded by the trial Court on an issue against such defendant/respondent is required to be reversed and thereby sustain the judgment and decree passed by the trial Court.

To put it differently, bare reading of Rule 22 of Order 41 CPC would indicate though respondent/defendant has not preferred an appeal from any part of the decree he would not only be entitled to support the judgment and decree of trial Court but also contend that finding recorded by the Court below against him in respect of any issue ought to have been answered in his favour and incidentally, he may file a cross objection or separate appeal or choose not to do so. Rule 22 of Order 41 CPC consists of two parts namely, (1) where the respondent in the appeal would be entitled to not only support the judgment and decree passed by the trial Court but also entitled to call upon the first appellate Court to answer an issue in respect of which an adverse finding has been recorded by the trial Court against him for being answered in his favour and thereby sustain such judgment and decree and (2) File a Cross-Appeal or Cross-Objection seeking for affirming the judgment and decree passed by trial Court by answering an issue in his favour which had been answered against him.

Hon''ble Apex Court in the case of Banarsi and Others Vs. Ram Phal, has examined the right of respondent to assail the finding recorded by the trial Court on an issue without filing cross objections post 1976 amendment to CPC and has held that where plaintiff seeks judgment and decree against defendant on grounds (A) and (B) and any one of the two grounds being enough to entitle the plaintiff to a decree and such Court passes a decree on ground (A) deciding it in favour of plaintiff and on ground (B) deciding it in favour of defendant or against plaintiff, then, in an appeal preferred by defendant, in spite of the finding on ground (A) being reversed, plaintiff as a respondent in an appeal can still seek to support said judgment and decree of the trial Court by challenging the finding recorded on ground (B) by trial Court and persuade the trial Court to form an opinion on ground (B) in his favour in spite of finding on ground (A) being reversed and extend the benefit of decree to the plaintiff though plaintiff had not filed separate appeal or cross appeal or cross objection invoking Order 41 Rule 22 CPC. In that view of the matter, first appellate Court in exercise of its power under Order 41 Rule 33 CPC to do complete justice between the parties can reverse the finding recorded in favour of the plaintiff and answer the same in favour of defendant and thereby sustain the judgment and decree passed by the trial Court. Hence, substantial question of law No. 3 is to be answered in the affirmative i.e., against the appellant and in favour of defendants.

RE: SUBSTANTIAL QUESTIONS OF LAW Nos. 1, 2 & 4:

A bare reading of judgment and decree passed by first appellate Court would indicate that judgment and decree passed by trial Court has been confirmed by reserving liberty to the plaintiff to file a fresh suit on the same cause of action by including written statement schedule properties within three months from the date of passing of said judgment and decree. However, first appellate Court has not assigned any reasons as to how it has arrived at the conclusion that properties described in the schedule to the written statement are the joint family properties or said properties having been purchased by plaintiff from out of the joint family nucleus.

A perusal of judgment and decree passed by trial Court as well as plea put forward by the plaintiff in reply to the written statement filed by third defendant would clearly indicate that plaintiff had pleaded that some of the properties described in the written statement schedule are his self acquired properties and few other properties are purchased by his wife and children. Precisely for this reason additional issues came to be framed on 24.01.2004 by casting burden on the third defendant to prove that written statement schedule properties are purchased out of the nucleus of ancestral properties. This issue, on appreciation of evidence, had been answered in the negative by the trial Court. However, first appellate Court without assigning any reason whatsoever has held that properties described in the written statement were required to be included in the suit for partition and on account of the same having not been included, suit for partial partition would not be maintainable and as such, plaintiff has been granted liberty to file a fresh suit by including the properties described in the schedule to written statement. Judgment of first appellate Court does not even remotely suggest as to how said finding has been arrived at namely, as to how third defendant had established that written statement properties were purchased by plaintiff from out of the joint family funds or as to why the finding recorded by the trial Court which was to the effect that these properties were self acquired properties of the plaintiff is being reversed. Absolutely there is no discussion on these aspects. As such, on the short ground of non consideration of material evidence available on record and for want of recording of reasons by the first appellate Court as to how it has arrived at a conclusion that written statement properties are joint family properties, judgment and decree of first appellate cannot be sustained. Hence, this Court is of the considered view that first appellate Court was not justified in reserving liberty to the plaintiff to file a fresh suit by including properties described in the schedule to the written statement after having held that third defendant had failed to prove execution of Ex. D-1 and said deed had no sanctity in the eye of law. Having not discussed as to how it has arrived at the conclusion that these properties described in the schedule of written statement are purchased from out of the joint family nucleus, judgment and decree passed by the first appellate Court cannot be sustained and matter deserves to be remitted back to first appellate Court by setting aside the same. Hence, substantial questions of law Nos. 2 & 4 are answered in the negative and substantial question of law No. 1 is kept open.

For the reasons aforestated, I proceed to pass the following:

(i) Appeal is hereby allowed.

(ii) Judgment and decree passed by Fast Track Court, KGF in R.A. No. 93/2009 is hereby set aside and said appeal is restored to the file of jurisdictional Court. Matter is remitted back to the jurisdictional Court for being adjudicated afresh keeping in mind observations made herein above and said appeal shall be disposed of expeditiously.

(iii) Both parties are at liberty to seek for production of additional evidence, if so advised and in the event of such a prayer being made, first appellate Court shall consider the same on merits and in accordance with law.

(iv) No costs.

(v) Registry to re-transmit the records to jurisdictional Court forthwith.