Sri.Gopal Rao, S/o Bondade Khandappa, Since deceased by his LRS, & Ors. vs Sathyendra Rao Bondade, Since deceased by his LRS., & Ors.

This appeal arises out of the judgment and decree

dated 17.06.2004 passed by the Principal Civil Senior

Judge, Davanagere in O.S.No.385/2000. By the impugned

judgment and decree the trial Court has decreed the suit

for partition and separate possession of 1/4 share of plaintiff

No.1 in the suit property and rejected the claim for mesne

profits.

The subject matter of the suit is the site

measuring 30''x 100'' with a RCC building constructed

thereon bearing door No.383 situated in 4th Main, 8th

Cross, P.J. Extenstion, Davanagere. The appellant is the

second defendant in the suit. Sathyendra Rao Bondade

and his son Sri S.Vijaya Bondade (respondent Nos.1 and 2)

filed O.S.No.385/2000 against the appellant Gopala Rao,

respondent Nos. 3 and 4, Sri B.Balvanta Rao and Sri

Nagaraj Rao Bondade. Sri B.Balvanta Rao and Sri Nagaraj

Rao Bondade are defendant Nos1 and 3 respectively before

the trial Court. Pending the suit, first plaintiff Sathyendra

Rao Bondade died and his daughters respondents No.1(b)

and 1(c) were brought on record as his legal

representatives along with the second plaintiff.

The case of the plaintiff in brief is as follows:

Plaintiff No.1, defendant Nos.1 to 3 along with their father

Bondade Khandappa constituted the joint hindu family. In

course of time Plaintiff No.1 and defendant Nos. 1 to 3

went on separating from the family executing release deeds

in favour of their father. Their father Bondade Khandappa

retained the suit property as his share in the family

properties. He died on 10.04.1974 intestate. After his

death Smt.Krishna Bai, mother of plaintiff No.1 and

defendants continued to reside in the said property. She

also died intestate in June 1994. Plaintiff No.1 and

defendant Nos.1 to 3 being the heirs of Bondade

Khandappa are entitled to equal 1/4 share in the suit

property. Since defendant No.2 had sold the house allotted

to his share, on the death of Smt. Krishna Bai, he was

allowed to occupy the said house and reside their. Despite

several requests of the plaintiffs, defendants failed to effect

the partition and hand over the possession of the 1st

plaintiffs'' share in the suit property.

As against that, the second defendant started to

make unauthorized alterations and constructions over the

suit property. Therefore, plaintiff No.1 got issued a notice

dated 29.05.2000 demanding partition of the suit property

by meets and bounds. Despite that the defendants did not

effect the partition. Hence, the suit.

The trial Court records indicate that on service

of suit summons defendant Nos. 2 and 3 appeared through

their counsel but did not file the written statement.

Defendant No.1 though served remained absent. Hence he

was set exparte. In support of the case of plaintiffs,

plaintiff No.2 got examined himself as PW.1 and got

marked the documents as Exs.P.1 to P.9. Defendants

neither cross examined PW.1 nor lead their evidence. Trial

Court record show that it heard the learned counsel for

both the plaintiffs and the learned counsel for defendant

Nos.2 and 3 submitted that he has no instructions in the

matter. Thereafter the Trial Court by impugned judgment

decreed the suit of the plaintiff for partition and separate

possession of 1/4 share of the plaintiffs and dismissed the

plaintiffs claim for mense profits. The appellants the heirs

of defendant No.2 challenged the said judgment and decree

in this appeal.

Sri B.V. Prakash Angadi learned counsel for the

appellants contends that the second defendant was

suffering from terminal disease of cancer and was bed

ridden for a long time. He further contends that the

plaintiffs represented to the second defendant that they

withdraw the suit and by assuring so they themselves

engaged a counsel for the second defendant and managed

to get exparte decree. He further contends that Smt.

Krishna Bai, the mother of the parties was the absolute

owner of the suit property and she has executed a Will

bequeathing the same in favour of defendant No.2 and his

son appellant No.1(a).

Sri V. H. Virupakshaiah learned counsel for the

respondents contends only the theory of plaintiffs taking

advantage of illness of second defendant the plaintiff

himself engaging an advocate for the defendant No.2 and

managing to get exparte decree is invented only during the

arguments. He contends that no such averments are made

either in the grounds of the appeal, in the affidavit filed in

support of the application for condonation of delay. He

contends that defendant No.2 or any other defendant did

not file any application before the trial court under Order 9

Rule 13 C.P.C to set aside the exparte judgment on such

ground and in this appeal is filed under Section 96 C.P.C.

the appellants have to succeed on the merits of the case

and it is not open for them to contend before this Court

that they did not contest the suit for sufficient reasons or

the reasons beyond their control. Therefore the decree is

set aside.

In the light of the above said rival contentions

the question that falls for consideration of this Court is

"whether the impugned judgment of the trial Court is

sustainable in law and on facts?"

There is no dispute between the parties that

first appellant Gopal Rao, respondent No.1 Satyendra Rao

Bondade (Plaintiff), respondent Nos.3 and 4 Sri B.Balvanta

Rao and Sri Nagaraj Rao Bondade are the full brothers.

The plaintiff sought partition and separate possession of

his 1/4th share in the suit property on the ground that in

the family partition between their father Bondade

Khandappa had retained the suit property for his share.

He claimed that Bondade Khandappa died intestate

therefore on his death all the sons are entitled to equal 1 /4th share in suit property.

Defendant No.1 though served remained absent

and set exparte. Defendant Nos.2 and 3 though appeared

through their counsel did not file written statement. It is

true that the appellants have not filed any application

under Order 9 Rule 13 C.P.C. Therefore this court has to

see whether the trial Court was justified in holding that the

plaintiffs have proved the case pleaded by them.

The Apex Court in the judgment in Ramappa

Gowda -vs- Chandre Gowda dead by LR''s and another in

Civil Appeal No.3710/2012 arising out SLP (C)

33361/2012 DD 23.4.2012 at para 14 has held as follows

"14.... We wish to reiterate that in a case where the written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 C.P.C., and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted a judgment and decree could not possibly be asked without requiring him to prove the fact pleaded in the plaint . It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant , the Court can conveniently pass the judgment and decree against

the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an exparte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy ...". (emphasis supplied by me.)

In the case on hand as per the pleadings of the

plaintiffs themselves the suit property had fallen to the

share of his father Bondade Khandappa and on his death it

devolved upon the sons of the children of Bondade

Khandappa. In the plaint, plaintiff himself said that

defendant No.2 began to make alterations in the suit

schedule property without his consent and the consent of

other defendants. That itself indicates that the second

defendant was challenging the claim of the plaintiffs.

Therefore they were required to prove the facts that the

property had fallen to the share of Bondade Khandappa

and he was the absolute owner of the same.

To prove their case the evidence adduced by the

plaintiffs is Ex.P.1, the copy of the notice, Ex.P.2, reply of

defendant No.1 to Ex.P.1, Ex.P3 to Ex.P.5 are the postal

acknowledgments. Out of them Exs.P.3 and P.4 are the

one addressed to defendant Nos.3 and 4 respectively.

Ex.P.3 the postal acknowledgment card addressed to

Nagaraj Rao Bondade is signed by one B. Saroja Devi. In

Ex.P.4 signature is not clear. Ex.P.5 is related to

defendant No.1 and he is not at issue with the plaintiff.

Ex.P.6 purports to be the endorsement issued

by the Commissioner of the Town Municipality Davanagere

on 19.4.1987 to the effect that on the application of

plaintiff and defendant Nos.1 to 3 for change of katha of

the suit property the same is changed in their names.

Even the said endorsement is issued with a clause that the

said change of katha is subject to any litigation between

the parties. The plaintiffs did not lead any evidence to

show that the defendant Nos. 1 to 3 have given application

for change of the katha.

The basic fact the plaintiff was required to prove

was that at the time of his death Bondade Kondappa was

the owner of the property and the katha stood in his name.

In the absence of that basic proof the oral evidence of the

PW.1 is of no help.

The appellants contend that even during the life

time of Bondade Kandappa, he and his sons gifted the suit

property in favour of Krishna Bai under the registered gift

deed dated 24.04.1957. In this appeal they further

contend that Krishna Bai being the absolute owner has

bequeathed the said property in favour of plaintiff No.2 and

his brother under a Will. To substantiate their contention

the appellants under I.A. No.3/2016 seek to produce the

said gift deed and Will. Whether that additional evidence

shall be permitted or not is a different issue.

The primary question is whether on the basis of

the evidence adduced before it, whether the trial Court

could have decreed the suit. The only reason the trial

Court for assigns for decreeing the suit is that the plaintiff

has produced the katha endorsement, tax paid receipts

and the notice and PW.1 has deposed in support of the

same. The trial Court further says that since the

defendants do not dispute that the suit has to be decreed.

The trial Court failed to note that the plaintiffs

fail to produce any evidence in support of the ownership of

the Bondade Kandappa himself. The trial Court failed to

note that even in Ex.P1 the averment regarding the title of

Bondade Kandappa is not forthcoming. It is only said that

defendant Nos. 1 to 3 and plaintiff 1 are the divided

brothers and except property No.383/1, all other properties

were divided and the suit property was in occupation of

their mother. Even in Ex.P1 it is not said that Bondade

Kandappa was the owner or the mother of the plaintiff No.1

was the owner.

Only in the plaint the plaintiffs introduce the

case the theory that property was retained by Bondade

Khandappa as his share and on his death the property

devolves on his sons. Even assuming that to be true,

admittedly Krishna Bai died after Bondade Khandappa. It

is not said whether Bondade Khandappa and Krishna Bai

had any other daughters. Even in that event the property

first devolves on the children (sons and daughters) and wife

of Bondade Khandappa. On the death of Krishna Bai again

the property devolves on her children. Having regard to all

these facts the judgment and decree of the trial Court is

unsustainable. The plaintiffs have to be given a chance to

prove their case. For that matter even without reference to

the document produced in the I.A. No.3/2016 the matter

requires to be remanded.

It is to be noted that there was a delay of 2

years in filing the appeal. In the application filed for

condonation of delay the appellants set up the ground of

medical condition of the first appellant. This Court

accepted the same and condoned the delay. When that is

accepted, his contention that he could not file the written

statement before the trial Court due to his health condition

has to be accepted. Therefore, the appellants have to be

given a chance to file their written statement.

It is no doubt true that the suit is of the year

2000. The plaintiffs are struggling for 17 years to get the

matter adjudicated. For such delay of 17 years is due to

the in-action on the part of the appellants and has to be

compensated sufficiently. When the similar circumstance

arise before the Supreme Court decision referred to supra ,

the Apex Court imposed the cost of Rs.25,000/-to the

appellants to compensate the delay caused. Therefore, in

this case also the appeal deserves to be allowed on

payment of cost of Rs.25,000/-. Therefore the appeal is

allowed on payment of cost of Rs.25,000/. The impugned

judgment and decree of the trial Court is hereby set aside.

The matter is remanded to the trial Court for fresh

disposal.

The appellants shall deposit the cost on or

before 01.06.2017 before the trial Court. The parties shall

appear before the trial Court on 01.06.2017 without any

further notice from the trial Court. The appellant shall file

the written statement within one week from the date of

their appearance before the trial Court.

The trial Court shall give opportunity to both

the parties to put forth their case and dispose of the matter

as expeditiously as possible at any rate not beyond three

months from 01.06.2017. Appellants are entitled to such

opportunity only on compliance of the conditions regarding

deposit of cost and filing of the written statement. Draw

decree accordingly.

Having regard to the aforesaid facts it is open to the

parties to adduce evidence before the trial Court. I.A.

No.3/2016 is disposed of accordingly.