L. Krishnamurthy vs Sannaeramma and Others

Ravi V. Malimath, J.—The case of the plaintiff is that she is the daughter of defendant No. 1 who died after filing of the suit. Defendant No. 2 is her sister. Defendant No. 3 is the purchaser of the suit schedule item No. 1 from the first defendant through a registered sale deed and that it is not binding on the plaintiff''s share, since there was no consent for the alleged document. Therefore, the third defendant has no right over the suit property and that the suit property is her ancestral property. Therefore, the plaintiff filed a suit seeking for 1/3rd share in the suit property.

The defendant Nos. 1 and 2 on appearance partly denied the suit averments. They contended that the suit is bad in law for non-joinder of Nagappa and Doddappa as necessary parties, as they are the sons of the bother of the husband of the plaintiff and the same has been mentioned in the sale deed executed by the first defendant on 20.05.1999 in favour of the third defendant. The plaintiff is the consenting witness to the registered sale deed executed by the first defendant in favour of third defendant. That the suit is not maintainable for the reasons assigned therein. Based on the same, the trial court framed the following issues:

"1. Whether the plaintiff proves that, the suit schedule properties are joint family properties of herself and defendant No. 2?

Whether the defendant No. 3 proves that, the 1st defendant has executed sale deed dated 20.5.1999 and plaintiff is consenting witness to the registered sale deed?

Whether the suit is not maintainable for non-joinder of necessary parties?

Whether defendants prove that, the suit is not maintainable, since to relief regarding cancellation of sale deed is not sought?

Whether the court fee paid is proper?

Whether plaintiff is entitled to relief to partition and separate possession?

What decree or order?"

The plaintiff was examined as PW-1 and eight documents were marked. No evidence was let-in on behalf of defendant. Issue No. 1 was held partly in affirmative. Issue No. 2, 3, 4 and 6 were held in the negative and issue No. 5 was held in the affirmative.

The suit was partly decreed granting half share in the plaint schedule item No. 2 properly only. The suit was dismissed with respect to item No. 1 on the ground that the plaintiff has failed to prove that suit item No. 1 is the joint family property. Aggrieved by the same, the plaintiff filed a regular appeal. The first appellate court decreed the suit so far as item No. 1 is concerned. Aggrieved by the same defendant No. 3 has filed the present appeal.

By the order dated 21.01.2014, the appeal was admitted to consider the following substantial question of law:

"Whether the lower Appellate Court recorded perverse findings to reverse the finding of the trial Court dismissing the suit against defendant No. 3 in respect of suit item No. 1 of the suit schedule property, so as to decree the suit for declaration, partition and separate possession of the said item No. 1?" 6. The learned counsel for the appellant-defendant No. 3 contends that the impugned order is bad in law and liable to be set-aside. That the trial court failed to consider the material and evidence on record. I.A.1/2014 has been filed herein by the appellant-defendant No. 3 under Order-41, Rule-27, read with Section-151 of C.P.C., seeking to produce additional evidence by way of documents namely, the original sale deed dated 20.05.1999, mutation in respect of survey No. 87 and RTC for the year 1997-98 to 2010-11. He contends that he was not given an adequate opportunity to lead his evidence to place relevant documents. That if the trial court was to consider his evidence and the material, his legal rights would be protected under Law.

On the other hand, the learned counsel for the respondent No. 1-plaintiff defends the impugned order. He contends that the first appellate court has rightly decreed the suit so far as item No. 1 is concerned and the trial court has rightly decreed the suit so far as issue No. 2 is concerned. Hence, he pleads that the appeal be dismissed. That the appellant-defendant No. 3 failed to participate in the proceedings and the reasons assigned by him for seeking production of the additional documents cannot be accepted.

Heard learned counsels and examined the records.

The case of the appellant-defendant No. 3 is that he is a bonafide purchaser of the suit item No. 1 in terms of the registered sale deed dated 20.05.1999, which was executed by the mother of defendant Nos. 1 and 2. That it was alienated for legal necessity. Therefore, the plaintiff or the defendants cannot claim any share in the property that has been purchased by him. On considering the said documents, the suit of the plaintiff requires to be rejected. That the first appellate court committed an error in decreeing the item No. 1 of the suit property in the absence of the said document.

I have considered the affidavit in support of the application seeking production of the additional documents. It is stated therein that when the suit for partition was filed initially, all the documents including the ones sought to be produced herein was handed over to the trial court counsel. The plaint was returned for want of pecuniary jurisdiction. Therefore, it was re-filed before the present trial court. It is under these circumstances the trial court counsel committed an error in not relying on the said documents and not leading the evidence, etc.

On considering the affidavit, I''am of the view that sufficient cause has been made out to allow the said application. That the legal rights of the appellant -defendant No. 3 would have to be determined based on the documents produced by him. So also, based on the very same documents, the legal rights of the plaintiff as well as the defendant No. 2 would have to be determined. Non-consideration of the sale deed would lead to irreparable loss and injury. Therefore, I''am of the considered view that the matter requires to be reconsidered in the face of this agreement. Therefore, the substantial question of law is answered by holding that the finding recorded by both the courts below call for interference.

The substantial question of law is answered holding that the first appellate court committed an error in decreeing the suit so far as item No. 1 is concerned, in view of misreading the material and evidence on record. Under these circumstance, on answering the substantial question of law and allowing I.A. No.1/2014 for production of additional documents it is only just and necessary that the matter be remanded to the trial court for fresh consideration. Consequently, the judgment and decree of the first appellate court is set-aside. The judgment and decree of the trial court is modified. The matter is remanded back to the trial court for fresh consideration in accordance with law.

On considering the new documents sought to be relied upon by the appellant, he shall be permitted to lead evidence on the same. The trial court to proceed further. The findings recorded by the Trial court on suit item No. 2 are confirmed. The Trial court to consider the suit with regard to suit item No. 1.

The trial court is at liberty to allow cross-examination of the plaintiff. However, the appellant as well as the defendants are permitted to let-in their evidence in support of their respective cases. In view of the long pendency of the suit, the trial court to dispose off the suit by the end of June''2015. The parties to appear before the trial court on 16.02.2015. The parties to bear their own cost.

Registry to send back the records.