H.D. Bharamanna vs H.B. Vijayalaxmi and Others

K.N. Phaneendra, J.—The aggrieved second defendant in Original Suit No. 132/2011 having failed in the original suit and also before the First Appellate Court in R.A. No. 43/2013 on the file of the District and Sessions Judge, Raichur, preferred this Regular Second Appeal.

At the time of admission itself the matter was heard and disposed of.

I would like to retain the status of the parties as per their ranks before the Trial Court for convenience. The plaintiff Nos. 1 to 5 have filed a suit for partition and separate possession and for rectification of RORs pertaining to the suit schedule properties against 14 defendants. The present appellant is second defendant in the said suit. The said suit was actually not contested by second defendant by specifically filing the written statement. However the other defendant Nos. 7 to 10 have filed their written statement and not disputed the share in the suit schedule properties. They disputed only as to the relationship of the defendant Nos. 1 to 6 with deceased H. Dhannappa. They specifically contended that defendant Nos. 1 to 6 are not related to the family of the H. Dhannappa. The plaintiffs'' case is that they claim that the plaintiffs are the legal heirs of deceased H. Bahubali and the defendants are the legal heirs of the deceased H. Dhannappa. The said H. Bahubali and H. Dhannappa were fully blood brothers died without partition. After the death of H. Bahubali and H. Dhannappa, the plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties bearing Sy. No. 163 measuring 10 acres 07 guntas and Sy. No. 192 measuring 16 acres 25 guntas both are situated at Lingankandoddi village of Raichur Taluka and a shop bearing Municipal No. 11-3-65 situated at Brestwar peth Cloth Bazar, Raichur. It is contended by the plaintiffs that the defendant Nos. 2 and 6 without the knowledge of the plaintiffs got their names mutated their names to the properties and thereby deprived the shares of the plaintiffs. After coming to know about the same the plaintiffs demanded partition as there was refusal the suit was filed. The records also discloses that the defendants have entered their appearance except defendant No. 5, the defendant Nos. 4, 7 to 10 filed their written statement but the second defendant did not file his written statement. On the basis of the rival contentions the Trial Court has framed as many as 8 issues, which are as follows;

(i) Whether the plaintiffs prove that the suit schedule properties shown at Annexure-B and C are the properties belonged to Joint Hindu Family consisting of Late. H. Dodda Bharmanna and his sons Late. H. Bahubali and Late. H. Dhannappa?

(ii) Whether the plaintiffs proves that suit schedule properties shown at Annexure-B and C are the properties belonging to Joint Hindu Family properties of the plaintiffs and defendants and they are the legal heirs and successors of Late. H. Bahubali and Late. H. Dhannappa respectively and they are entitled to 1/2 shares in the above said properties?

(iii) Whether the defendant No. 4 proves that he has got share in the suit schedule properties shown at Annexure-B and C along with defendant Nos. 1 to 3 and 5 to 14 jointly to the extent of half share?

(iv) Whether the defendant Nos. 7 to 10 proves that, the defendants No. 1 to 6 are not related to Late. Dhannappa and they have no right and interest or share in the joint family properties shown at Annexure-B and C respectively?

(v) Whether the defendant Nos. 7 to 10 further proves that, the Genealogical tree shown at Annexure-A is incorrect, false and against the true facts?

(vi) Whether the defendant Nos. 7 to 20 prove that the defendant Nos. 1 to 6 are not related to Late. Hardar Dhannappa and they are not concerned to their family?

(vii) Whether the defendant Nos. 7 to 10 further prove that the defendant Nos. 1 to 6 have no right, interest or share in the joint family properties of plaintiffs and defendant Nos. 7 to 14?

(viii) What order or decree?

The plaintiff No. 5 examined himself as PYV. 1 and got marked Exs. P1 to P. 23 and closed his side. The defendants did not chosen to lead evidence on their side.

After going through the oral and documentary evidence on record the Trial Court has rendered its findings decreeing the suit of the plaintiffs and directing for drawing up of preliminary decree. The said-judgment and decree was challenged before the First Appellate Court i.e. before the II Addl. District and Sessions Judge, Raichur, in Regular Appeal No. 43/2013. The second defendant in fact has challenged the said judgment in the appeal mainly on the grounds that he was suffering from cancer he could not properly instruct his counsel to file the written statement and also he could not able to contest the said case in proper manner. He also contended that some of the properties which were also in the joint family properties were not included in the suit. Therefore, the suit was bad for non-joinder of all the properties of the joint family. The First Appellate Court has also framed point for consideration in the following manner.

(i) Whether the appellant satisfies the Court to condone the delay in preferring this appeal by allowing I.A. No. I filed u/Sec. 5 of the Limitation Act?

(ii) Whether the Judgment and decree passed by the Court below in O.S. No. 132/2011 dated 23.07.2013 by decreeing the suit of the plaintiff is erroneous and unsustainable in Law and on facts and it is liable to be set aside by accepting the grounds urged in the appeal by allowing this appeal filed under Order 41 Rule 1 r/w Section 96 of CPC?

(iii) What order?

Negativing the contention of the appellant herein holding that though sufficient opportunity was given to the defendant No. 2, he has not utilized the same and he has not made out any ground for interfering with the judgment and decree passed by the Trial Court. Accordingly, the appeal also came to be dismissed.

Sri Shivakumar Kalloor, learned counsel for the appellant reiterating the said contention of defendant No. 2 before the First Appellate Court that no sufficient opportunity was granted to defendant No. 2 nor to agitate his rights with regard to the joint family properties and mainly he concentrated before this Court that all the joint family properties were not included in the suit. Therefore, the suit is for non-joinder for necessary parties. He also contends that the substantial justice has not been administered by the Trial Court as well as the First Appellate Court as the principles of natural justice has not been strictly followed by both the Courts. Hence, he pleads for framing of the substantial question of law before this Court.

On the contrary Sri Shivanand Patil, learned counsel for the respondents herein strenuously contended that, if this Court goes through the order sheet of the Trial Court it amply makes it clear that sufficient opportunity had been granted by the Trial Court but the same has not been availed by the defendant No. 2 either for the purpose of filing the written statement or to lead evidence on his side. Further, he contends that the properties which are sought to be included in the suit as submitted by the learned counsel for the appellant are actually not joint family properties but they were earlier held between H. Bahubali and H. Dhannappa equally and separately as protected tenants and subsequently both the properties were actually in separate possession and enjoyment of those persons equally to the respective shares. Therefore, those properties at any stretch of imagination can be called as joint family properties. The defendant No. 2 only submitting the properties in the name of the father of the plaintiffs and he suppressed that other properties are in the name of H. Dhannappa. Even otherwise it is the contention of the learned counsel that if any properties are left out from joining the same in the suit schedule even at the time of final decree proceedings that can be agitated before the trial Court itself. If the Court comes to the conclusion that some other properties though are joint family property and the parties to the proceedings are entitled to the share of the property that can also be decided by the Final Decree Court before drawing up the Final Decree Proceedings. With these submissions the learned counsel submit no substantial question of law arises in this case therefore, the appeal is liable to be dismissed.

On the above said rival contentions, I have carefully applied my mind so far as order sheet of the Trial Court is concerned, as rightly observed the defendant No. 2 entered his appearance before the Court on 11.09.2012, his advocate filed vakalath on that particular day and sought for time to file the written statement. The case stood posted to 22.10.2012 and on that day the advocate filed written statement. The defendant No. 2 remained absent. Therefore, the written statement was taken as not filed. But the subsequent proceedings are also very curious in nature from 22.10.2012 up to the examination of the plaintiffs before the Court as many as 9 adjournments were granted but defendant No. 2 has not made any endeavor to file at least an application seeking permission of the Trial Court to file his written statement. One more factual aspect in this case clinches the conduct of defendant No. 2 is that the plaintiff was examined and got marked certain documents before the Court, the advocate for defendant No. 2 has in fact sought permission to cross-examine P.W. 1 by citing a ruling to the effect that though the defendant has not filed any written statement is entitled to cross-examine the witnesses. The Court allowed the defendant No. 2 to cross-examine the witnesses and accordingly P.W. 1 was fully cross-examined by the counsel for the defendant No. 2. This clearly indicates that though an opportunity was given, the defendant No. never shown any interest that he intends to file any written statement and contest the suit. Even the order sheet discloses that an amendment was carried out to the plaint and an opportunity was given to all the defendants to file their additional written statement, if any, but the counsel for the defendants including defendant No. 2 submitted that they have no additional written statement at all.

Considering the above said facts, which are on record, it clearly discloses that the defendant No. 2 was given sufficient opportunity by the Trial Court but the same was not availed by the defendant No. 2. Therefore, I do not find any strong reasons to frame any substantial question of law so far as this ground is concerned. The second ground as alleged by the learned counsel that all the properties were not joint family properties subjected to the suit also does not comes to his help because the rival contentions taken up before this Court that those properties were not the joint family properties and they were already equally divided amongst H. Bahubali and H. Dhannappa and they were enjoying the properties respectfully. Even admitting that some of the joint family properties were not included in the suit even at the time of Final Decree Proceedings those properties can be included and an opportunity can be availed and the Court has to decide whether those properties were left out from the suit and it can also pass appropriate order in this regard. Therefore, if at all any grounds are available to the appellant herein, it is left open to him to agitate the same in the Final Decree Proceedings. With these observations, in my opinion, no substantial question of law arises for consideration of this Court. Hence, this Regular Second Appeal is liable to be dismissed.

Accordingly, the appeal is dismissed.