K. Vimala vs K. Hithendra and Others

H. Billappa, J—This appeal by the appellant/plaintiff is directed against the judgment and decree dated 7.3.2015 passed by the Itinerary Senior Civil Judge, Hosadurga, in OS No. 29/2011.

By the impugned judgment and decree, the trial court has dismissed the suit of the plaintiff.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The respondents 1 and 2 are the defendants before the trial court. The parties will be referred to with reference to their rank in the original suit O.S. No. 29/11.

Briefly stated the facts are: The appellant-plaintiff filed the suit in OS No. 29/2011 for partition and separate possession of the suit schedule properties and consequential reliefs. The case of the appellant-plaintiff was that the plaintiff and the 1st defendant are the children of late K. Krishnappa and Parvathamma. Late K. Krishnappa during his life time had acquired both movable and immovable properties and also purchased a site in the name of the plaintiffs mother and constructed a house in the said property. The immovable properties are fully described in the suit ''A'' schedule. The plaintiffs mother and father are no more. The 1st defendant is staying at Hosadurga and managing the suit schedule properties. The 1st defendant misused the situation and managed to get the khatha registered in his name in respect of suit ''A'' schedule properties. Thereafter, the plaintiff brought to the notice of the municipal council and her name was also included in the khatha register. The plaintiff requested the 1st defendant to effect partition of the suit schedule properties. The 1st defendant denied share to the plaintiff stating that his mother has executed a Will in his favour in respect of the suit schedule properties. The Will is fabricated. Therefore, the plaintiff has prayed for partition and separate possession of the suit schedule properties.

The defendants have resisted the suit by filing their written statement. The 1st defendant has contended that the plaintiff is married to one S.K. Raghavendra. The khatha of the property stood in the name of Parvathamma, the mother of the plaintiff and the 1st defendant. Parvathamma died on 17.12.2009. The plaintiff issued legal notice dated 25.5.2011 and the 1st defendant has replied the same. The plaintiff is not entitled for any share. It is contended that the 1st defendant acquired the suit ''A'' schedule properties through a registered Will dated 24.7.2007 which was executed by his mother Smt. Parvathamma. After the death of Parvathamma, the Will has come into force. The plaintiff is not entitled for any share. It is contended that the 1st defendant and his mother were doing business and they performed the marriage of the plaintiff. From his earnings, the 1st defendant has purchased two vacant sites described in the suit ''A'' schedule in the name of his mother. The 1st defendant has paid a sum of Rs. 2 lakhs through cheque and also paid cash to the vendor. The 1st defendant has constructed residential houses by borrowing loan of Rs. 5 lakhs from Sri. Seetharaghava Souhardha Sahakara Bank Ltd., Hosadurga and Rs. 1 lakh from Karnataka Bank Ltd., Hosadurga. It is stated, the 1st defendant has also borrowed money from the private persons. It is contended that the 1st defendant is the absolute owner in possession and enjoyment of the schedule houses as per the Will executed by his mother Parvathamma. Based on the Will Khatha was changed in the name of the 1st defendant. The plaintiff without the knowledge of the 1st defendant filed an application before the municipal authorities and got the khata changed in the joint name. It is stated, the 1st defendant is the absolute owner of the suit schedule houses and the plaintiff has no right. The suit ''B'' schedule properties are not existing. The notice sent by the plaintiff has been suitably replied. It is contended that suit ''A'' schedule properties are purely self-acquired properties of the 1st defendant. It is stated that item No. 2 of the suit ''A'' schedule property has been gifted in favour of his wife Smt. Lakshmi through gift deed dated 6.12.2010. The khata of the property has been transferred in the name of his wife and she is enjoying the property. The suit ''A'' schedule properties were not joint family properties. Therefore, the plaintiff is not entitled for any share.

The 2nd defendant has contended that she is the wife of 1st defendant. Item No. 2 of the suit ''A'' schedule property belongs to her. She has acquired the same through registered gift deed dated 6.12.2010 which was executed by her husband i.e., 1st defendant. Khata of the property has been transferred in her name. She is in lawful possession and enjoyment of the said property. The plaintiff has no right, title or interest in item No. 2 of the suit ''A'' schedule property. The suit is barred by limitation. Therefore, the 2nd defendant has prayed for dismissal of the suit.

The trial court has framed the following issues:

Whether the plaintiff proves that the suit schedule properties are joint family properties of defendant and herself.

Whether the defendant proves that he had purchased A-schedule properties in the name of the mother Smt. Parvathamma out of hard money earned by himself and his mother, during her life time?

Whether defendant further proves that his mother executed ''Will Deed'' dated 24.7.2007 in his favour pertaining to A-schedule property?

Whether the plaintiff is entitled to the relief of partition and mesne profits as sought in instant suit?

What order or decree?

Additional issues:

Whether the defendant No. 2 proves that A-schedule property is acquired by her under a registered Gift Deed dated 6.12.2010 executed by her husband i.e., 1st defendant and which become her exclusive property?

Whether defendant No. 2 proves that, suit of the plaintiff is barred by law of Limitation as against defendant No. 2 as pleaded in their written statement?

On appreciation of the evidence on record, the trial court has answered issue Nos. 1, 4 and Addl. Issue No. 2 in the negative, issue No. 2 partly in the affirmative and issue No. 3 and Addl. Issue No. 1 in the affirmative and consequently has dismissed the suit.

Aggrieved by that, the appellant-plaintiff has filed this appeal.

The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. Further he submitted that the trial court without giving sufficient opportunity to the parties to lead their evidence has passed the impugned judgment and decree and therefore, the impugned judgment and decree cannot be sustainable in law. He also submitted that the 2nd defendant had filed her written statement on 21.6.2014. Thereafter, additional issues were framed on 8.8.2014 and the case was adjourned to 30.8.2014 for plaintiffs evidence. On 30.8.2014 and 10.10.2014 nobody represented the case. Thereafter, on 22.11.2014 DW-1 was absent and the case was adjourned to 29.11.2014 for cross-examination of DW-1. On 29.11.2014 cross-examination of DW-1 was taken as Nil. On 12.12.2014 the defendants have filed I.A.VI. The case was adjourned to 9.1.2015. On 9.1.2015 affidavit evidence of DWs 2 to 4 has been filed and Exs.D-2(b) to (d) and Ex.D8(a)(b) have been marked and cross-examination of DWs 2 to 4 has been taken as Nil. Thereafter, on 7.3.2015 the suit has been dismissed. It is clear, there was no opportunity for the plaintiff to lead his evidence or cross-examine the defendants witnesses. Therefore, the impugned judgment and decree cannot be sustained in law.

As against this, the learned counsel for the respondents 1 and 2 submitted that the impugned judgment and decree does not call for interference. The trial court on proper consideration of the material on record has rightly dismissed the suit. Further he submitted that the plaintiff has not availed the opportunity given to her and therefore, the plaintiff cannot contend that there was no opportunity to lead her evidence. Therefore, the impugned judgment and decree does not call for interference.

I have carefully considered the submissions made by the counsel for the parties and perused the records.

The appellant-plaintiff had filed suit for partition and separate possession of the suit schedule properties. The 2nd defendant came on record vide order dated 5.10.2013. She filed her written statement on 21.6.2014. On 8.8.2014 additional issues were framed. The case is adjourned to 30.8.2014 for plaintiffs evidence. Thereafter, on 30.8.2014 and 10.10.2014 nobody has represented the case. On 22.11.2014 DW-1 was absent and the case is adjourned to 29.11.2014. On 29.11.2014 cross-examination of DW-1 has been taken as Nil. On 12.12.2014 I.A.VI has been filed by the defendants to permit them to file witness list. The case is adjourned to 9.1.2015. On 9.1.2015 affidavit evidence of DWs-2 to 4 has been filed and Exs.D-2(b) to (d) and Ex.D8(a) (b) have been marked and cross-examination of DWs-2 to 4 has been taken as Nil. Subsequently, the judgment has been passed dismissing the suit. It is clear, there was no opportunity to the plaintiff to lead her evidence subsequent to the framing of additional issues. Further, DWs 2 to 4 have not been cross-examined. The order sheet shows that there was no opportunity for the plaintiff to lead her evidence and also to cross-examine the defendants witnesses. On this ground itself, the impugned judgment and decree needs to be set aside without going into the merits of the case.

Accordingly, the appeal is allowed and the impugned judgment and decree passed by the trial court in O.S. No. 29/2011 is hereby set aside. The matter is remitted to the trial court with a direction to re-consider the same in accordance with law from the stage of framing of additional issues by giving opportunity to the parties to lead their evidence and cross-examine the witnesses. Trial court shall dispose of the matter as expeditiously as possible.

Send back the records immediately.

ORDER ON FOR BEING SPOKEN TO

Heard the learned counsel for the parties.

In the order dated 17.8.2015, the date is not fixed for appearance of the parties before the trial Court. As the matter is remanded, the parties are directed to appear before the trial Court on 19.9.2015.

This shall be read as part of the order dated 17.8.2015.