Ujjelli Bheemanna vs Ujjelli Venkataiah

This appeal is directed against judgment and decree dated 21.12.2006 passed by the learned Senior Civil Judge at Narayanpet in A.S.No.23 of 2006 confirming the judgment and decree dated 21.08.2006 passed by the learned Junior Civil Judge, Narayanpet in O.S.No.31 of 2002. The said suit was filed by the plaintiffs against the defendants seeking partition and separate possession of 1/3rd share out of suit land to an extent of Ac.17.09 guntas in Sy.No.52 situated at Maganoor Village. By the judgment and decree dated 21.08.2006, the trial Court decreed the suit and declared that the plaintiffs together entitled for the 1/3rd share in the suit property.

O.S.No.31 of 2002 was filed by the plaintiffs seeking partition and separate possession of 1/3rd share out of suit land to an extent of Ac.17.09 guntas in Sy.No.52 situated at Maganoor Village. Defendant Nos.1 to 6 were remained set exparte and never contested the suit. In support of their contentions, the plaintiffs got examined P.Ws.1 to 4 and marked Exs.A.1 to A9 on their behalf. No evidence was adduced on behalf of the defendants.

Considering the oral and documentary evidence adduced by the plaintiffs, the trial Court decreed the suit filed by the plaintiffs holding to the effect that they are entitled for 1/3rd share each in the suit schedule property. Aggrieved by the same, Defendant Nos.7 to 9 preferred an appeal, but it was also dismissed confirming the judgment and decree of the trial Court. Dissatisfied with the judgment and decree, they filed the present second appeal.

For the sake of convenience, the parties hereinafter are referred to as arrayed in the suit.

Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

The facts of the case before the trial Court are that one Jambanna is having three sons viz., Late Ujjeli Narsimulu, Late Ujjali Ramanna and Ujjeli Bheemanna (D.7). Defendant Nos.1 to 6 are the legal heirs of Late Ujjeli Narsimulu. Plaintiffs are the legal heirs of Late Ujjeli Ramanna. Defendant Nos.8 and 9 are the legal heirs of Defendant No.7. All the three brothers purchased the land to an extent of Ac.17.09 guntas in Sy.No.52 situated at Maganoor Village in the year 1957 from Late Ventala Bheemanna for a valid consideration of Rs.850/-. They jointly paid the entire amount to the vendor. Bheemanna executed the agreement of sale in the name of Ujjeli Ramanna, father of the first plaintiff. All the three brothers jointly obtained the possession and doing joint cultivation during their life time. After the death of Bheemanna, prior to execution of the registered sale deed, litigation started between the legal heirs of their vendor and three brothers. They filed a suit O.S.No.15 of 1981 on the file of District Munsif, Narayanpet, against the legal heirs of vendor-Bheemanna seeking for perpetual injunction. The said suit was dismissed. Aggrieved by the judgment in O.S.No.15 of 1981, they preferred A.S.No.1 of 1986 by the three brothers, which was also dismissed on 03.10.1995. Thereafter, Defendant Nos.1 to 9 and the first plaintiff have together filed O.S.No.195 of 1997 seeking for specific performance of contract under the agreement of sale and for declaration of title, ownership against the legal heirs of the vendor Bheemanna. It was decreed on 15.06.1999 with a direction to execute the registered sale deed within a period of three months in favour of the first plaintiff and Defendant Nos.1 to 9. Thereafter, execution petition was filed, on which the Court ordered to execute the registered sale deed in their favour. Accordingly sale deed dated 19.07.2001 was executed and the same was registered on 21.07.2001. As such, the first plaintiff and Defendant Nos.1 to 9 became joint owners and possessors of the suit land. In O.S.No.105 of 1997 it was clearly observed that the three brothers jointly purchased the suit land and hence they are entitled to 1/3rd share in the suit land. When the first plaintiff demanded for partition of the suit land, the defendants prolonging the litigation on one or the other pretext. The defendants in collusion with the Mandal Revenue Officer, Maganoor, have got wrong and illegal mutation of their names in the record of rights. The order of the Mandal Revenue Officer dated 19.11.2001 was challenged by the first plaintiff.

In the written statement filed by the defendant Nos.7 to 9 they admitted the relationship between the parties and also admitted the process of purchase of the suit land through the Court. But they stated that during the partition, the house bearing No.2-100 was fallen to the share of the father of the first plaintiff. Another house bearing No.2-98 was fallen to the share of the father of the first defendant and no house was allotted to the share of Defendant No.7, and as such, the suit land was allotted to him as Defendant Nos.8 and 9 being sons of Defendant No.7 are in possession and enjoyment of the suit land since long time. The first plaintiff had suppressed the oral partition and illegally asking for the share in the property though Defendant Nos.7 to 9 are having absolute rights over it.

Learned counsel for the appellants would contend that the suit was decreed with an observation that the plaintiffs failed to bring the legal representatives of the deceased-second defendant on record and decreed the suit addressing the issue of abatement due to non-bringing the legal representatives. He would further argue that no opportunity was given to the contesting defendants to lead their evidence and marking their documents. He would also aver that when the matter came up for defendants’ evidence on 04.08.2006 and within two hearings the entire matter was closed on 21.08.2006 and suit was decreed.

The trial Court observed that the suit property is an ancestral property of plaintiffs and the defendants. Though the defendants mentioned about the oral partition in the written statement, they could not establish the same by way of adducing any evidence. Ex.A5 is the agreement of sale executed by Bheemanna in favour of father of the first plaintiff. Exs.A2 and A3 are certified copies of judgment and decree in O.S.No.105 of 1997 which clearly shows that the suit schedule property is joint family property of the first plaintiff and defendant Nos.1 to 9. Ex.A1 is the registered sale deed dated 21.07.2001. Exs.A6 to A9 are the pahanies showing the joint possession of three brothers. The first plaintiff stated that there was no oral partition and it was supported by the evidence of P.Ws.2 to 4. As the defendants failed to adduce any evidence, either documentary or oral, to the effect that Defendant No.7 is the absolute and exclusive owner of the property, adverse inference can be drawn against the defendants and they failed to rebut the evidence adduced by the plaintiffs to disprove the joint ownership and possession over the suit land, and accordingly the suit was decreed in favour of the plaintiffs. Aggrieved by the same, Defendant Nos.7 to 9 preferred an appeal. In the appeal, the appellate Court framed the following points for consideration:

1) Whether the plaintiffs (respondents 1 and 2 herein) are entitled to seek the partition of the suit schedule land and for allotment of 1/3rd share to the plaintiffs (respondents 1 and 2 herein) ?

2) Whether the judgment and decree dt.21.8.2006 passed by the lower court against the second defendant (respondent No.4 herein), shown as deed on 1.1.2005, without bringing the legal representatives of the second defendant (respondent No.4 herein) on record by the plaintiffs (respondents 1 and 2 herein) and incidentally with no order of abatement of the suit against the second defendant (respondent No.4) recorded by the lower court is tenable under law ?

3) Whether the suit requires to be remanded to the lower court for purpose of giving opportunity to the appellants to adduce evidence ?

4) Whether the judgment and decree passed by the lower court dt.21.8.2006 suffers from any infirmities and irregularities and calls for any interference by this court ?

5) To what relief ?

The appellate Court in its judgment observed that the Explanation to Section 54 of the Transfer of Property Act envisages that an agreement for sale does not confer any title. Though the original of Ex.A5 belongs to the year 1957, no valid title was conferred on P.W.1 and the defendants till the execution of the registered sale deed executed in their favour on 19.07.2001. As per Exs.A2 to A4, late Ramanna, late Narsimulu and Defendant No.7 claimed equal shares as they equally contributing the fund for purchasing the property out of the joint family funds. It was also observed that under Ex.A1 no exclusive title was conferred on Defendant No.7 and he was treated as a co-owner along with the legal representatives of the branches of his other two brothers. In view of dismissal of O.S.No.15 of 1981 and the appeal preferred against it, Defendant No.7 was entitled to 1/3rd share only and the 2/3rd share belongs to the branches of his two brothers i.e. late Ramanna and Late Narsimulu. It was also observed that the sale deed was executed on 19.07.2001 and the present suit is filed on 01.04.2002 i.e. within one year from the date of execution of Ex.A1 and as such, the partition between the parties taken place long back cannot be believed. It was also brought on record that his brothers maintained joint possession in the suit schedule property till the execution of Ex.A1. Exs.A8 and A9 shows the joint possession of all the three brothers. Legal representatives of the second defendant were not brought on record though he died on 01.01.2005 and the suit was not abated against him. The appellate Court observed that exemption order can be granted to the plaintiff under Order 22 Rule 4(4) CPC, but basing on the facts, the exemption deemed to have been granted. Moreover, it was specifically stated that plaintiffs are entitled for 1/3rd share and Defendant No.7 and the legal representatives of Late Narsimulu are entitled for 2/3rd share. Even if the legal representatives are not brought on record, they were not adversely affected and they are entitled for their respective shares within the main branch of their common ancestor Late Narsimulu and they are at liberty to file a petition for allotment of shares in the final decree proceedings. As such, the order passed by the trial Court without substituting the legal representatives of the second defendant does not suffer from any serious illegality.

Learned counsel for the defendants would argue that the defendant Nos.1 to 6 were set exparte, but the appellate Court observed that they have to file a petition under Order 9 Rule 13 CPC for setting aside the exparte order, and thus, they failed to avail the opportunity. Therefore, the matter need not be remanded back to the trial Court and accordingly dismissed the appeal confirming the judgment and decree of the trial Court.

Learned counsel for the appellants produced the docket proceedings of the trial Court, which reads follows:

v)

23-6-2006

PW.4 Chief Affidavit filed and he is cross examined plaintiff evidence closed for defence evidence call on 14.7.2006

vi)

14-7-2006

DNR at request call on 21.7.2006

vii)

4-8-2006

DNR on costs of Rs.100/- call on 4-8-20067

viii)

4-8-2006

DNR costs not paid. No representation, hence evidence of defendants closed. For hearing call on 11-8-2006

Learned counsel for the appellants would further submit that they filed I.A.No.270 of 2006 on 18.08.2006 to reopen the matter, but it was dismissed on the same day with the following docket order:

‘Heard and perused the material on record and it is fact that it is suit for partition and defendant no.1 to 6 already set exparte. The evidence of the plaintiff was closed on 16.6.2006 and this court given four adjournments for the defendants evidence. Even with costs and because of non-payment of costs and no representation by the counsel, the defendants evidence was closed and posted for arguments. Today arguments also heard and reserved for judgment.

Therefore filing of present petition for re-opening the main suit is not maintainable at this juncture. The court believe that it is only to drag on the matter.

Hence petition dismissed without costs.’

Learned counsel for the appellants would also state the legal remedy available to him against the exparte order, which is as follows:

‘The Civil Procedure Code provide four remedies against the exparte decree.

a) Application under Order 9 Rule 13.

b) Appeal under Section 96(2) Rule 13.

c) Review application under Order 47 Rule 1.

e) Independent suit alleging fraud.’

Therefore, he would submit that the appellate Court erroneously held that they have not filed petition under Order 9 Rule 13 CPC. In fact, they preferred appeal under Section 96(2) and the appellate Court ought to have remanded the matter to the trial Court with a direction to afford an opportunity to him.

The appellate Court held that in stead of mentioning that the fourth respondent as ‘dead’ they ought to have brought on record the legal representatives of the deceased fourth respondent in the appeal. Moreover, the shares were allotted to three branches i.e. to the branch of late Ramanna, the branch of the seventh defendant and also to the branch of Narsimulu 1/3rd share to each branch and the legal representatives can divide their respective shares within the main branch and no prejudice would be caused merely because the due opportunity was not given to them. In fact, in the suit Defendant Nos.1 to 6 remained exparte. As per the docket order, though reasonable opportunity was granted for adducing evidence of the defendants even on costs, they could not do so and as such it was closed on 04.08.2006 and the application filed on 18.08.2006 was also dismissed on the same day and the matter is reserved for judgment and it is pronounced on 21.08.2006. From the sequence of events, the appellants are estopped in arguing that no opportunity was given to the defendants. In spite of giving opportunity for adducing evidence, the defendants could not avail.

The Supreme Court time and again stated that the High Court cannot allow the second appeal without discussing or deciding any question of law involved in case. In the case on hand, this Court finds that there is no question of law much less substantial questions of law involved in this appeal. Moreover, in the second appeal the Court can interfere only if the finding is perverse, but the order of the appellate Court is a well reasoned order and all the issues raised by the appellants herein were answered in detail. Therefore, this second appeal merits no consideration.

In the result, the Second Appeal is dismissed confirming the judgment and decree of the appellate Court. However, there shall be no order as to costs.

Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.