K.G. Gangaiah and others vs Narayanappa

A.V. Chandrashekara, J.—The present appeal is filed under Section 100 of CPC challenging the concurrent findings.

The appellants are the legal representatives of the deceased defendant. The respondent herein was the sole plaintiff in the said suit.

The parties are referred to their ranking as referred to before the trial Court.

The plaintiff had chosen to file a suit for partition and separate possession of two items of immovable properties. Item No. 1 is the land bearing Sy.No.72 to an extent of 4.14 acres and the second items is a residential house with two portions measuring total extent of East to West 50 feet and North to South 60 feet situated at Vatadahosahally village, Nagaragere Hobli, Gauribidanur Taluk, Chickkaballapur District.

The facts leading to filing of this appeal are as follows:

One person by name Narasimhappa had three sons namely (1) Gangappa, (2) Narasimhappa and (3) Adimurthappa. The schedule properties are the ancestral properties of Narasimhappa, father of Gangappa and Adimurthappa. Narasimhappa was the second son of Narasimhappa. According to the plaintiff, there was no partition between the three sons of Narasimhappa. The second son of Narasimhappa, brother of Gangappa and Adimurthappa died unmarried. Therefore, the plaintiff is entitled for half share in the suit schedule property. With these pleadings, the plaintiff has sought for decree of the suit.

The said suit was contested by the deceased defendant by filing the detailed Written Statement. According to him, there was a partition between the three sons of Narasimhappa and the properties were divided into three equal shares. 1.18 acres of land in Sy.No.72 of Vatadahosahally village, Nagaragere Hobli, Gauribidanur Taluk had fallen to the share of Narasimhappa. It was contended in the Written Statement that defendant�s father�s brother one late Narasimhappa sold his share of the suit schedule property in favour of the defendant on 07.06.1978 through a registered sale deed for a consideration of Rs.2,000/-. Since then, the defendant was stated to be in lawful possession and enjoyment of the same. According to the deceased defendant, he was entitled for ⅔rd share which was inclusive of ⅛th share purchased from Narasimhappa. Therefore, it is averred that the suit for partition and separate possession is not at all maintainable either in law or on facts and prayed for dismissal of the suit.

On the basis of the pleadings of the parties, the trial Court framed the following issues on 11.06.1997.

Whether the plaintiff is entitled for share in the suit property by partition and separate possession as prayed for?

If so to what extent?

Whether the defendant proves that there is already partition and that he has purchased ⅔rd share from Narasimhappa on 7.6.78 under registered deed?

Whether the suit is not properly valued court fee paid is insufficient?

What order or decree?

Plaintiff - Narayanappa himself is examined as PW-1 and has got marked Exs.P1 to P5. Defendant Gangaiah himself is examined as DW-1, one Padmanabhasetty-attestor to the sale deed EX D1 is examined as DW-2 and has got marked as Exs.D1 to D3. Ultimately, the suit came to be decreed granting half share in the suit schedule property vide judgment dated 12.07.2001, as against which, an appeal, was filed in terms of Section 96 of CPC before the Court of the Civil Judge (Sr.Dn.), Chickballapur which was transferred to the Court of Fast Track -V, Chickballapur and the same was renumbered as RA No. 91/2001. Vide judgment dated 3.6.2006, the said appeal is dismissed after contest. Hence, the appellant is before this Court.

The appeal was admitted on 6.1.2010 to consider the following substantial question of law:

"Whether the Courts below were justified in negating the sale deed-Ex.D1 on the footing that there were no pleadings in support of the sale deed to claim ⅔ share and that the execution of the sale deed was not proved respectively, in the face of pleadings to this effect and the sale deed being a registered sale deed and witnesses having been examined in support of the same?

Heard Sri. V.F. Kumbai, learned Counsel for the appellant and Sri. S.M Kulkarni, learned Counsel for respondent.

The case of the defendant is that there was a partition between his lather and his uncles i.e., his father�s brothers and the suit schedule property in question had fallen to the share of Narasimhappa and thereafter, late Narasimhappa sold his share in favour of the defendant on 7.6.1978 through a registered sale deed vide Ex.D1.

Perused Ex.D 1. One Padmanabhashetty, a resident of Vatadahosahalli, attested his signature to the said sale deed and he is examined as DW-2. Off course, plaintiff was also a resident of the same village. Therefore, it is argued by Mr. V.F. Kumbar that execution of the sale deed vide Ex.D 1 is specifically proved and this fact was at all considered by the trial Court and also the first Appellate Court.

If one were to read Ex.D1. it discloses that there was a partition and this portion had fallen to the share of second son Narasimhappa and he chosen to execute sale deed and boundaries of the schedule property in question is as follows:

East

:

Krishnamurthy''s Mango Garden

West

:

land of Guddi Lakshmakka

North

:

land of Narayanappa

South

:

Road

In Ex.D1, there is a specific reference about selling of a stone built house to Gangaiah. The share belonging to Narasimhappa in respect of the house is stated to have been sold.

As rightly pointed out by Sri. M.S. Kulkarni, defendant was expected to prove that there was a partition between three sons of Narasimhappa and the schedule property in question was fallen to the share of second son - Narasimhappa. Whoever takes up the pleas of prior partition, burden is always cast upon him/her to prove such plea.

Defendant is examined as DW-1 and in his deposition, he has stated that partition took place even before he was born. The relevant portion of the deposition of DW-1 recorded on 16.06.2000 at page 3 translated to Kannada and the same is as follows:

VERNACULAR MATTER

As deposed by him in his deposition, partition took place between his father and his father�s brothers Narasimhappa and Adimurthappa and the same is evidenced by Panchayath and the said Panchayath Parikath was in his custody.

If really partition had taken place between three sons of late Narasimhappa orally and the same is evidenced by Panchayath Parikath, nothing came in the way of the defendant to produce such document in support of his case. Non production of such document, which is relied upon by the defendant is taken note of by the trial Court and hence an adverse inference is drawn against the defendant in terms of Section 114(g) of Evidence Act.

What is argued before this Court by Mr. Kumbar is that Panchayath Parikath was produced before the first Appellate Court and that is not considered by it. An application under Order 41. Rule 27, CPC was filed along with the Panchayath Parikath, and the said IA was rejected by the first Appellate Court by giving cogent and valid reasons. Whoever intends to adduce additional evidence before the first Appellate Court is expected to make out a strong case since adducing evidence is an exception to the general rule. Therefore, the first Appellate Court has rightly rejected the application for additional evidence in terms of Order 41, Rule 27 of CPC.

The learned Judge of the first Appellate Court has held that the appellant has failed to prove that in spite of due diligence, he could not produce Panchayath Parikath in the trial Court though it was in his possession. As rightly pointed out by the first Appellate Court, it was not his case before the trial Court that he had missed the said document. No such reference is made about the said Panchayath Parikath reduced into writing when the oral partition took place even before he was born. An attempt is made to introduce the Pachayath Parikath for the first time before the first Appellate Court and therefore, the first Appellate Court has refused to permit the appellant to lead additional evidence.

As rightly pointed out by the first Appellate Court, if really partition had taken place and had been evidenced by a written Panchayath Parikath, it would have reflected in the sale deed-Ex.D1 in favour of the deceased defendant by his own brother Narasimhappa.

Unless the partition set up by the defendant is proved, question of placing reliance on Ex.D1 does not arise and hence both the Courts have rightly granted relief to the plaintiff.

Admittedly the defendant was a school teacher and his brothers were quite illiterate and residing in Vatadhahosalli village. Apart from this, deceased Narasimhappa was married and he was not living independently and separately. As rightly pointed out by the learned Counsel for the appellant, what was the occasion for Narasimhappa to sell his in divided share is also not forthcoming. Taking into consideration all these facts, the trial Court has decreed the suit granting half share each to the plaintiff on the ground that there was no partition and that the defendant has failed to prove the alleged partition between three sons of late Narasimhappa. No perversity or infirmity is committed by both the Courts below. Hence, substantial question of law is answered in affirmative. Accordingly, appeal is liable to be dismissed.

Appeal is dismissed. Parties to bear their own costs in view of relationship between them.