Sidram Beerappa Wantamure and Others vs Parvati and Others

B. Veerappa, J.—This appeal is filed by defendant Nos. 1 and 3 against the judgment and decree dated 10th April, 2014 made in RA No. 22/2012 on the file of the Senior Civil Judge and JMFC., Raibag modifying the judgment and decree dated 28.7.2012 made in O.S. No. 64/2001 on the file of the Additional Civil Judge and JMFC., Raibag decreeing the suit in part and declaring that plaintiff Nos. 1 to 4 each are entitled to 4/32 shares and defendant No. 1 to 3 each are entitled to 9/32 shares and defendant Nos. 4 and 5 are jointly entitled to 1/32 shares.

Respondent Nos. 1 to 4, who are the plaintiffs before the trial Court filed a suit for partition and separate possession against the defendants contending that the suit properties are ancestral Joint family properties of themselves and defendants comprising of 10 agricultural lands situated at Raibag, one house situated in Bommanal village and two residential houses in Raibag; and one Beerappa Siddappa Wantamure and Dundawwa are their father and mother as well as of defendant Nos. 1 to 3 and grand parents of defendant Nos. 4 and 5, and they are no more. The plaintiffs are in joint possession and enjoyment of the suit properties along with the defendants; and there was no partition by metes and bounds in the joint family properties between themselves and defendants; and now there is difference of opinion between them and defendants. Since they cannot continue to be in the joint family with the defendants, they demanded their shares for which defendant Nos. 1 to 3 refused. Therefore, the plaintiffs had filed the suit.

Defendant Nos. 1 to 3 filed their written statement denying the plaint averments contending that the suit filed by the plaintiffs is not maintainable and the plaintiffs are not entitled to file a suit for partition. Out of the suit properties, lands at R.S. No. 580, 480, 525 and 98 were purchased jointly in the year 1950 by Beerappa Siddappa Wantamure and his brothers. Till 1965, the father Beerappa and his brothers were living jointly and in the year 1965, all the 3 brothers got divided their joint family properties before the village elders and started cultivating their properties allotted to them separately. Out of those properties, suit schedule property Nos. 1 to 4 were the ancestral properties. The plaintiffs and the mother of defendant Nos. 4 and 5 have no share in the suit properties. They also denied that plaintiffs and defendant Nos. 1 to 3 are still the members of the Hindu Joint Family. Defendant Nos. 1 to 3 got partitioned mutually through village elders through a partition yadi and got divided the properties in the month of May, 1993, etc. Therefore, they sought for dismissal of the suit.

Defendant Nos. 2, 3 and 5 filed their written statement admitting the plaintiffs'' claim and prayed for a decree as prayed for in the plaint.

Based on the pleadings, the trial Court framed the following issues and also recasted issue No. 2:

"1. Whether plaintiffs prove that the suit properties are ancestral properties of the plaintiff and defendants, there was no partition between them as on the date of the suit?

Whether defendant prove that there was partition between them in the year 1965?

Whether the defendant prove that the suit of plaintiff''s is barred by Jurisdiction?

Whether plaintiffs are entitle for partition and separate possession by metes and bounds, if so what their share?

What decree or order?"

RECASTED ISSUE NO. 2

"1. whether defendants prove that, there was partition between them in the year of 1993?"

In order to prove the plaintiffs'' case, plaintiff No. 4 examined herself as P.W. 1 and one witness as P.W. 2 and got marked Exs. P. 1 to 28. The 1st defendant examined himself as D.W. 1 and two witnesses as D.Ws. 2 and 3 and got marked the documents as Exs. D. 1 to 59.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs have proved that the suit properties are the ancestral properties of the plaintiffs and defendants and there was no partition between themselves as on the date of the suit and also that the defendants have failed to prove that there was a partition between themselves in the year 1965 and also that the suit filed by the plaintiffs was barred by jurisdiction and hence, the plaintiffs are entitled for partition and separate possession of 1/5th share each.

Aggrieved by the said judgment and decree, the defendant Nos. 1 and 3/appellants preferred R.A. No. 22/2012 before the Senior Civil Judge and JMFC., Raibag. According to the defendants/appellants, during the pendency of the appeal before the Lower Appellate Court, the appellants filed an application - I.A. VIII under order XLI Rule 27 of the Code of Civil Procedure on 6.1.2014 for production of documents to which the respondents filed objections. The Lower Appellate Court without considering the said application has set aside the judgment and decree of the trial Court in respect of allotment of shares in the suit properties and decreed the suit in part modifying the decree passed by the trial Court granting share against which, the present appeal is filed.

I have heard the learned Counsel for the parties to the lis.

Sri M.G. Naganuri, learned Counsel for the appellants contended that during the pendency of the appeal, an application - I.A. VIII under Order XLI Rule 27 r/w Section 151 of CPC for production of additional evidence was filed on 6.1.2014. Though the respondents filed objections, the Lower Appellate Court while passing the impugned judgment and decree without considering the same has proceeded to pass the impugned judgment and decree which is contrary to the dictum of the Hon''ble Supreme Court in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, and therefore, he sought for setting aside the judgment and decree of the Lower Appellate Court.

Per contra, Sri Vivek appearing on behalf of Sri Sangram S. Kulkarni for the respondents sought to justify the impugned judgment and decree of the Appellate Court.

This Court while admitting the matter had framed the following substantial question of law:

"Whether the Lower Appellate Court was justified in allowing the appeal in part without disposing of I.A. VIII filed by the appellants on 6.1.2014 under Order XLI Rule 27 of the CPC., to produce the documents by way of additional evidence?"

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that the suit filed by the plaintiffs is for partition and separate possession in respect of the suit properties. The contention of the plaintiffs is that they and defendants are the joint family members and the plaintiffs are entitled to a decree. Though the said plaint averments were resisted by the defendants before the trial Court, the trial Court after considering the entire material on record, has decreed the suit in part holding that the suit in respect of plaintiff Nos. 1 and 2 is dismissed and defendant Nos. 4 and 5 are entitled to a share in the suit schedule property. Further the suit of plaintiff Nos. 3 and 4 was decreed holding that plaintiff Nos. 3 and 4 and defendant Nos. 1 to 3 are entitled to 1/5th share in each of the suit properties.

Against the said judgment and decree, the defendants/appellants filed RA No. 22/2012 before the Senior Civil Judge and JMFC., Raibag. It is also not in dispute that during the pendency of the appeal an application-I.A. VIII was filed under Order XLI Rule 27 of CPC by the present appellants on 6.1.2014 for production of additional evidence and the Lower Appellate Court without considering the said application has proceeded to pass the impugned judgment and decree on merits which is not permissible and therefore, the impugned judgment and decree passed by the Lower Appellate Court is vitiated on account of non-consideration of I.A. VIII.

It is a well settled law that an application filed under Order 41 Rule 27 of the Code of Civil Procedure is to be considered at the time of hearing of the appeal on merits, so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact, whether the applicant had an opportunity for adducing such evidence at the earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.

In the present case, without considering the application - I.A. VIII filed under Order 41 Rule 27 read with Section 151 of CPC, the Lower Appellate Court proceeded on the merits of the case. Before disposing of the appeal on merits, it is the duty of the Appellate Court to consider the application filed under Order 41 Rule 27 of the Code of Civil Procedure. It should be considered at the first instance at the time of disposal of the appeal on merits. In the present case, the Appellate Court has not considered before deciding the appeal on merits or at the time of disposing of the appeal on merits and the same is contrary to the dictum of the Hon''ble Supreme Court in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, at paragraphs 4 and 5 which is as follows:

"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.

For the reasons aforesaid, the impugned judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."

In view of the aforesaid reasons, the substantial question of law is answered in the negative, holding that the Appellate Court is not justified in allowing the appeal in part without considering the application - I.A. VIII filed under Order 41 Rule 27 of the Code of Civil Procedure by the appellants and therefore, the impugned judgment and decree of the Lower Appellate Court is vitiated.

In the result, the appeal is allowed in part. The impugned judgment and decree of the Lower Appellate Court dated 10th April, 2014 made in RA No. 22/2012 on the file of the Senior Civil Judge and JMFC., Raibag, is set aside and the matter is remanded to the Lower Appellate Court for reconsideration and to pass orders on I.A. VIII filed under Order 41 Rule 27 of the Code of Civil Procedure and proceed with the matter in accordance with law.

Since the suit is of the year 2001, the Lower Appellate Court is directed to decide the appeal after giving opportunity to both the parties and pass the judgment and decree in accordance with law expeditiously.

Both the parties are directed to appear before the Lower Appellate Court without waiting any notice on 2.11.2015.