Jatangi Channapp vs Jatangi Eranna and Others

B.V. Nagarathna, J.—1. Defendant in O.S. No. 34/2006 has preferred this second appeal, assailing judgment and decree passed in R.A. No. 78/2008 dated 14/12/2015, passed by the III Additional District and Sessions Judge, Ballari (Sitting at Hosapete), by which, judgment and decree of the trial Court has been confirmed.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The first respondent herein was the plaintiff. He filed a suit against the appellant herein, who was defendant No. 1 and defendant Nos. 2 to 12, seeking relief of declaration of his share in the suit schedule property i.e., ''A'', ''B'' and ''C properties and for delivery of possession of the same and a direction was sought to defendant Nos. 2 to 12, to deposit their respective loan amount with interest. According to the plaintiff, defendant Nos. 1 and 9 are brothers. They are the children of Jatangi Hanumanthappa and Jatangi Pakkiramma. They divided their ancestral properties about three decades ago. Plaintiff and defendant took one share each and one share was taken by their parents. After partition, their father died in the year 1979. Thereafter, their mother Pakkiramma, enjoyed schedule ''A'' and ''B'' properties. Out of the income of those properties, the mother used to lend monies to defendant Nos. 2 to 12. Mother of plaintiff and defendant No. 1 died on 11/10/2004. Hence, plaintiff sought for partition and separate possession of the mother''s share, but defendant No. 1 did not allot plaintiff his share in the ''A'' schedule property. Plaintiff demanded his share in ''A'' and ''B'' schedule properties to defendant No. 1 but the latter went on postponing the division. According to plaintiff, the mother of plaintiff and defendant No. 1 had given loans to defendant Nos. 2 to 12 and plaintiff was entitled to half share in that. Plaintiff earlier had filed O.S. No. 9/2005 before the Addl. Civil Judge (Jr.Dn.), Hospet, seeking partition and separate possession of ''A'' and ''B'' schedule properties. Defendant No. 1 appeared in that suit and raised a preliminary issue with regard to pecuniary jurisdiction of the Court. The plaint was returned and presented before the Civil Judge (Sr.Dn.) and the same was registered as URP. No. 92/2005. But the office objections were not complied with. Hence, the same was dismissed as not pressed and a fresh suit has been filed, seeking the aforesaid reliefs.

On receipt of suit summons and Court notices, defendant Nos. 1, 5 and 7 to 9 remained absent and were placed ex-parte. Defendant Nos. 2, 3, 6, 10, 11 and 12 appeared. Defendant Nos. 3, 6, 10 and 11 filed their written statement and admitted the case of the plaintiff and they also admitted that they had borrowed money from the mother of plaintiff and defendant - Pakkiramma.

On the basis of the pleadings, trial Court framed the following points for its consideration:--

"1. Whether plaintiff proves that, in the partition suit Wand ''B'' schedule properties were allotted to the share of their parents?

Whether plaintiff is entitled for the share in the suit premises?

What order or decree?"

In support of his case, plaintiff let in his evidence as P.W.1. He produced nine documents, which were marked as Exs.P.1 to P.9. Defendant No. 3 let in his evidence as D.W.1. No documents were marked through him on the basis of the aforesaid evidence. The trial Court decreed the suit, holding that plaintiff was entitled to half share in ''A'' and ''C schedule properties. Plaintiff was at liberty to seek separate possession of ''A'' and ''B'' schedule properties by meets and bounds by appointment of Court Commissioner, as per Section 54 of the Code of Civil Procedure (CPC) (Karnataka Amendment).

Being aggrieved by the judgment of the trial Court dated 31/01/2008, defendant preferred R.A. No. 78/2008. There was a delay of 125 days in filing the appeal. The appeal was dismissed on the ground of delay. Being aggrieved by the order of dismissal, he had preferred RSA. No. 5746/2011 before this Court. This Court condoned the delay in filing the regular appeal and remanded the matter to the first appellate Court for consideration of the case on merits. On remand, defendant preferred an application under Order XLI Rule 27 r/w Section 151 of CPC for permission to produce the documents and for production of additional evidence. The first appellate Court on hearing learned counsel for parties, framed the following point for its consideration:--

"Whether the impugned judgment and decree of trial Court suffers from legality and that the appeal filed for production of documents and for additional evidence is fit to be allowed?"

It answered the aforesaid point in the negative and dismissed the appeal by confirming the judgment and decree of the trial Court. Being aggrieved by the judgment and decree of the first appellate Court dated 14/12/2015, defendant has preferred this second appeal.

I have heard learned counsel for appellant and perused the material on record.

It is contended on behalf of appellant that the first appellate Court was not right in dismissing the appeal filed by the appellant herein and thereby, confirming the judgment and decree of the trial Court. He contended that before the trial Court, the appellant herein was placed ex-parte. No opportunity was available to him to contest the suit of the respondent - plaintiff and that plaintiff is not entitled to any relief in the suit. He also contended that before the first appellate Court, an application was filed under Order XLI Rule 27 r/w Section 151 of CPC. But the first appellate Court rejected that application by holding that the same was filed only to drag on the proceedings. As a result, even before the first appellate Court, appellant herein lost his opportunity to contest the matter. He contended that substantial questions of law would arise in this appeal, as the appellant did not have an opportunity to contest the suit and therefore, the appeal may be admitted for a detailed hearing.

Having heard learned counsel for appellant, it is noted that plaintiff and first defendant are siblings. They are children of Jatangi Hanumanthappa and Jatangi Pakkiramma. The case of plaintiff is that there was a partition between father and two sons, to an extent of 1/3rd share. The parents jointly retained their one share. On the demise of the parents, the siblings i.e., plaintiff and defendant No. 1 were entitled to 1/2 share each in the share retained by the parents. But defendant No. 1 did not partition the suit schedule properties, which is the 1/3rd share retained by the parents. Any number of requests made by plaintiff went in vain. Ultimately, plaintiff preferred O.S. No. 34/2005, out of which this second appeal arises, seeking declaration in respect of his half share in ''A'', ''B'' and ''C schedule properties and for delivery of possession of half share and a direction to defendant Nos. 2 to 12, to deposit their respective loan amounts with interest. The appellant was defendant in the suit, who had earlier appeared in O.S. No. 9/2005, did not choose to appear in O.S. No. 34/2006, which was filed after withdrawing O.S. No. 9/2005 on account of the pecuniary jurisdiction. The appellant herein was hence, placed ex-parte. His efforts to seek recall of the order placing him ex-parte was also unsuccessful. Plaintiff produced his evidence. He was cross-examined and the trial Court concluded that he was entitled to the relief sought. Before the first appellate Court, appellant herein sought to produce certain documents and after applying the principles enunciated in Order XLI Rule 27 r/w Section 151 of CPC, did not permit production of those documents on the premise that they had no bearing on the issues involved in the suit or the appeal and were thus irrelevant for the adjudication of the appeal. The rejection of application under Order XLI Rule 27 of CPC by the first appellate Court is thus, just and proper. Hence, I do not find any infirmity in the judgment and decree of the first appellate Court, for the simple reason that the relationship between the parties is not in dispute. The subject matter of the suit being available for division between the plaintiff and first defendant is also not in dispute. Defendant No. 1 chose to ignore the suit proceedings. He was unsuccessful in getting the ex-parte order recalled. The first appellate Court on the basis of the evidence on record has come to a conclusion that the plaintiff was entitled to the reliefs sought by him. I do not find any substantial question of law, which would arise in this appeal. The appeal is accordingly, dismissed. Consequently, I.A. No. I/2016 is also dismissed.