IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 18TH DAY OF JULY, 2011 PRESENT THE HON’BLE MR. JUSTICE V.G.SABHAHIT AND THE HON’BLE MR. JUSTICE B.MANOHAR R.F.A. NO.1986/2005 [PAR] A/w, MISC.CVLs.105197/11 & 105724/11 BETWEEN: SMT YALLAVA W/O LATE HONNAPPA HALYAL AGED 70 YEARS 0CC: HOUSEHOLD WORK R/O BENGERI TALUK. HUBLU58O 020 NOW AT NEERALAGI (NMT), SHIG(DN 2. PARVATEVVA W/O COU DAPPA NADAN NAVAR AGED 50 YEARS 0CC: HOUSEHOLD WORK R/O BENGERI TALUK HUBLI-580 020 NoW AT NEERALAGI (NMT), SHIGGAON 3. PARUTAPPA S/O HONNAPPA HALYAL AGED 43 YEARS OCC:AGRICULTURE R/() BENGERI TALUK HUBLU58O 020 NOW AT NEERALAGI(NMT)SHIGGAON 3. SHIVAPPA S/O HONNAPPA HALYAL AGED 43 YEARS 0CC. AGRICULTURE R/O BEfTGERI TALUK HUBLL58O 020 NOW AT NEERALAGI(NMT). SHIGGAON PPELLANTS COI’IIVION] (By Sri, G.R.ANDANIMATH SR.ADV. FOR SRI SDIQ N 01 DWL AD\ FOR APPELLANTS) V :2: AND: I. SMT SUMITRA W/() SHIVAPR HALYAL AGE 32 YEARS 0CC: HOUSEHOLD WORK RIO VAKKALGERI, BETAOERI-GADAG-512 101. 2. RAVIKUMAR Sb SHIVAPPA HALYAL AGE 15 YEARS, 0CC: STUDENT R/0 VAKKALGERI, BETAGERI-GADAG-512 101. REPRESENTED BY HIS MOTHER GUARDIAN SMT SL’MITRA W/() SHIVAPPA HALVAL 3. MANJUNATH 5/0 SHIVAPPA HAIXAL AGE 10 YEARS. 0CC: STUDENT RIO VAKKALGERI. BETAGERI-GADAG-512 101. REPRESENTED BY HIS MOTHER GUARDIAN SMT SUMITRA W/0 SHIVAPPA HALYAL 4. TULAJANSA S/U DHARMASA DHARAMDAS AGE MAJOR 0CC: BUSiNESS RIO BENGERI. TALUK HUBLI-580 020. 5. YALLUBAI W/0 TULAJANASA DHARAMDAS AGE MAJOR 0CC: HOUSEHOLD WORK RIO BENGERI. TALUK HUBLI-580 020. 6. GANESH 5/0 TULAJANASA DHARAMDAS AGE MAJOR 0CC: BUSINESS RIO BENGERI, TALUK HUBLI-580 020. 7. SANJAY 5/0 TULAJANASA DHARAMDAS AGE MAJOR 0CC: BUSiNESS RIO BENGERI, TALUK HUBLI-580 020. RESPONDENTS ICOMMC)NI (By Sri. S.R.HEGDE ADV. FOR R1-R3: SRI T.Y.KATWA ADV. FOR R4 TO R7) :3: THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 9.09.05 PASSED IN 0.5. NO.180/04 ON THE FILE OF ADDL. CIVIL JUDGE (SR.DN). HUBLI PARTLY DECREEING THE SUIT FOR PARTITION AND SEPERATE POSSESSION OF THEIR SHARE AND FOR PERMANENT INJUNCTION. MISC.CVL. 105197/2011 IS FILED BY THE ADVOCATE FOR THE APPELLANTS UNDER ORDER 41 RULE 27 CPC PRAYNG TO PERMIT THEM TO PRODUCE CERTIFIED COPY OF (1) PLAINT (2) WRI’fl’EN STATEMENT (3) ISSUES (4) DEPOSITIONS OF PWs- 1, 2, DWs-1, 2. COMMISSIONERS REPORTS (FOR HAVING RECORDED THE EVIDENCE). (5) DOCUMENTS EXHIBITS P-I TO 36 (6) EX.D-I ANDJUDGMENT IN ORIGINAL SUIT NO.216/2004 DECIDED ON 27.03.2010 BY THE LEARND PRL. SENIOR CIVIL JUDGE HUBLI AND COMPROMISE DECREE DATED 15.10.2004 IN O.S. NO.296/2004 ON THE FILE OF THE ADDL. CIVIL COURT (SR.DN.), HUBLI. MISC.CVL 105724/2011 IS FILED BY THE ADVOCATE FOR THE APPELLANS UNDER ORDER 8 RULE 1 R/W. SECTION 151 CPC PRAYING TO PERMIT THE APPELLANTS 1 TO 4 (DEFENDANTS 1, 2,4 AND 5) TO FILE THEIR WRITFEN STATEMENT. THIS RFA ALONG WITH MISC.CVLs. COMING ON FOR FINAL HEARING, THIS DAY, V.G.SABRAHIT, J. DELIVERED THE FOLLOWING: :4: JUDGMENT This appeal is filed by defendants 1, 2, 4 and 5 in OS. No.180/2004 on the file of the Addi. Civil Juclge (Sr.Dn.), Hubli being aggrieved by the judgment and decree dated 09.09.2005, wherein the suit filed by the plainUffs has been decreed in part holding that the sale deed said to have been executed in favour of Defendants 6 to 9 as not binding in respect of shares of plaintiffs 2 and 3 and it is further decreed that plaintiffs 2 and 3 are entitled to get I /3ut share each, out of the 1 /3r’t share of their father5tt1 defendant in the entire properties. Defendant No.5 is directed to demarcate by metes and bounds and carve out the shares of the plaintiffs 2 and 3 out of the suit properties within six months and l-and it over to the possession of the I si plaintiff being the next friend-mother-guardian of plaintiffs 2 and 3. 2. The material facts of the case leading up to this appeal with reference to the ranks of parties bcfore the trial court are as follows: Respondents 1 to 3 herein, who arc the plaintiffs I to 3, filed a suit against Defendants I to’ 9, averring that the suit ‘3/ ‘1 :5: schedule properties are the joint family properties of the plaintiffs and defendants 1 to 5. It is averred in the plaint that Sri.Huchchappa S/o. Fakirappa Halyal the propositus died long back leaving behind Shantavva (Died), Shivakka and Honnappa (died). Honnappa died leaving behind Defendants 1 to 5. Defendant No. 1—Yallavva, is the wife and Defendants 2 to 5 are her children. The plaintiffs arc the wife and children of Shivappa—Defendant No.5. It is averred in the plaint, by giving description and genealogy as referred to above, that after the death of Honnappa Halyal, name of defendants 4 and 5 were mutated in the record of rights of 11w suit schedule properties. The plaintiffs and defendants 1 to 5 are the Class—I heirs. Defendants 2 and 3, the daughters of Konnappa Halyal, have no right, title, interest over the suit schedule properties and not having any share in the suit properties and to avoid multiplication of the suit, they have been made as necessary parties to the suit. It is averred that defendant No.5— Shivappa, in collusion with other defendants has sold three acres of land out of the suit schedule-IA property without any legal necessity, to defendants 6 to’ 9, which is void, illegal and :6: not binding upon the plaintiffs. Defendant No.5 in collusion with other defendants is trying to alienate the other suit properties just to dupe the share of plaintiffs to others and creating fictitious and vexatious’ documents with others to create charge, encumbrance, etc. Defendants 1 to 5 have no legal rights over the suit properties to sell the share of plaintiffs nor they have been authorised to do so in any manner and, nor it has been authorised to them to do in any manner. Therefore, the alienation said to have been made by Defendant No.5 in favour of Defendants 6 to 9 is illegal and not binding on the plaintiffs as averred in paragraphs 8 to 11 of the plaint and therefore, the suit was filed seeking following reliefs: “It is most humbly prayed that: (a) The plaintiff’s joint 34 share in defendant No.5, 113 share or 3/12 joint share may kindly be partitioned and separated by metes and bounds in ends of justice & equity, in all suit properties; (b) The share of the plaintiffs may be divided by metes and bounds under Section 54 of CPC: (c) The defendant Nos. 1 to 5 permanently be restrained from alienating the suit properties to others in any manner: (d) It may kindly be declared that, the C alleged sale transaction in respect of 3 acres of lands of suit 1(A) may kindly be declared as not binding upon the plaintiff in any manner; (e) Cost of the suit may be awarded; (f) Any other equitable relief deem fit may be awarded in favour of the plaintiffs.’ 3. Defendants 1 to 5 have not chosen to file any written statement. Defendant No.6, one of thc alienee of the property by defendant No.5, filed the written statement denying the averments made in the plaint that the plaintiffs are entitled to share in the properties mentioned in Suit- 1(A) which has been alienated in favour of Defendants 6 to 9; the plaintiffs had consented for the alienation in favour of Defendants 6 to 9 and therefore, they are not entitled for the share in the suit schedule properties and alienation was valid and cannot be set aside and valuation made in respect of the declaration sought for is not correct. 4. The written statement filed by defendant No.6 was adopted by Defendants 7 Ic) 9 by filing a memo. 5. The following issues were framed by the trial court and were answered with the following findings :- (i) Whether the plaintiffs prove that defendant No.5 in collusion with other defendants has sold 3 acres out of serial No.1-A property without any legal necessity to defendants 6 to 9, which is void, illegal and not binding upon the plaintiffs as alleged in para 8 of the plaint 2 (ii) Whether plaintiffs have prove that defendant No.5 has no absolute right to alienate the share of the plaintiff in any manner as alleged in para 10 of the plaint? (iii) Whether defendants 6 to 9 prove that the plaintiffs have given the consent for sale of Serial No.1-A of property on 19.06.2004 as alleged in para 8 of the written statement? (iv) Whether defendants 6 to 9 prove that the Court fee paid by the plaintiffs is not proper and correct and suit is not maintainable unless they pay the court fee on market value of suit properties as alleged in para 15 of the written statement? (v) Whether plaintiffs are entitled for reliefs sought for? (vi) What order or decree? I IN 1)1 N ( Issue No.1: In the affirmative: Issue No.2’ In the affirmative: Issue No.3: In the negative: \ 4 :9: Issue No.4: In the negative; Issue No.5: Partly in the affirmative: Issue No.6: As per the final order. 6. on behalf of the plaintiffs. PW- 1 was examined and got marked the documents Exs.P-1 to 14. On behalf of defendants, Defendant No.6 was examined as DW- I and got marked Exs.D-l to 3. The trial court after considering the contentions of the learned counsel appearing for the parties, and appreciating the oral and documentary evidence on record, by the judgment and decree dated 09.09.2005, decreed the suit as follows:- ORDER ‘(i) The suit of the plaintiffs is partly decreed with costs; (ii) The sale deed said to have been executed in favour of defendants 6 to 9 is hereby declared as not binding in respect of shares of plaintiffs 2 and 3: (iii) It is further ordered and decreed that plaintiffs 2 and 3 are entitled to get 113 m share each out of the 1I3 share of their father5tfl defendant in the entire property; (iv) The defendant No.5 is directed to demarcate by metes and bounds and S :10: carve out the shares of the plaintiffs 2 and 3 out of the suit properties within six months and hand it over to the possession of the first plaintiff being the next friend-mother-guardian of plaintiffs 2and3; (v) Draw preliminary decree accordingly.” 7. Being aggrieved by the said judgment and decree, Defendants 1, 2, 4 and 5 have preferred this appeal. It may be noted here itself that Defendants 6 to 9 have not preferred any appeal being aggrieved by the judgment and decree declaring that the alienation made by defendant No.5 in favour of Defendants 6 to 9 is not binding upon the plainliffs’ share in the suit schedule property. 8. During the pendency of the appeal. two applications have been filed by the appellants. Misc. Cvl. 105 197/201 1 is filed for production of additional documents as mentioned in the application and Misc.Cvl. 105724/2011 is filed seeking permission to file written statement by defendants 1, 2. 4 and 5. 9. We have heard the learned counsel appearing for the appellants on the main appeal and the applications filed by :11: them referred to above and the learned counsel appearing for the respondents. 10. The learned counsel for the appellants has taken us through the evidence of PW- I and contents of the documents sought to be produced. as also the evidence of DW- I and documents marked Exs.D- 1 to 3. 11. The learned counsel for the appellants submits that the particulars of the averments is not contained in the plaint though a declaration is sought for. The documents evidencing the alienation is not produced and further, in view of the facts elicited in the cross-examination of PW- I that she is out of possession of the property alienated in favour of Defendants 6 to 9 and valuation made is not proper and therefore, the findings of the trial court is liable to be set aside, as the trial court has not appreciated the oral and documentary evidence in its proper perspective. 12. The learned counsel for the appellants further submitted that the additional documents now sought to be produced having material bearing about the alienation made in 12: favour of Defendants 6 to 9 and the documents produced pertains mainly to O.S. No.216/2004 which had been filed by the second wife and her daughter wherein the suit for partition and separate possession against thc same defendants has bcen dismissed. He has taken us through the said documents sought to be produced. The learned counsel further submitted that the defendants 1, 2. 4 and 5 be permitted to file written statement as written statement could nor be filed in the suit due to a bona fide mistake and ii. was not intentional. Hence, the application may be allowed atid the judgment and decrce passed by the trial court be set aside. 13. The learned counsel for the respondents submits that no ground is made out for production of additional documents nor for filing the written statement. The appellants have not filed any written statement before the trial court. Defendants 6 to 9. who are affected by the decree as the alienation is set aside. when the’ have tiled written statement. they have not chosen to prefer an appeal and they have accepted the judgment and decree passed by the trial court and the learned counsel submitted that no material whatever is 13: produced to Show that the plaintiffs had consented for the alienation made by defendant No.5 in favour of defendants 6 to 9 to prove the defence taken and therefore, the judgment and decree passed by the trial court is entitled to he confirmed. 14. Having regard to the aforesaid contentions, the points that arise for our consideration are: (i) Whether the finding of the trial court that defendant No.5 had no absolute right to alienate the share of the plaintiffs in any manner in favour.of defendants 6 to 9 is justified or calls for interference in this appeal? (ii) Whether the finding of the trial court that the alienation made by the defendant No.5 in favour of defendants 6 to 9 in respect of suit schedule I -(A) property on 19.06.2004 as not binding upon the plaintiffs share as they had not given consent is justified or calls for interference in this appeal? (iii) Whether the application for production of additional documents should be allowed? (iv) Whether the appellants shall be permitted to file written statement? (v) Whether the judgment and decree passed by the trial court in 0.8. No.180/2004 calls for interference in this appeal? 14 1 5. We answer the above points as follows:- Point Nos.1 & 2 In the affirmative: the findings of the trial court is justified and does not call for interference in this appeal: Point No.3 The application for production of additional documents is liable to be dismissed: Point No 4 The Application seeking permission for filing written statement is also liable to be dismissed: Point No.5 The Judgment and decree passed by the trial court in OS. No.180/2004 is entitled to be confirmed and the appeal is liable to be dismissed. For the fo11owint reasons: REASONS 16. POINT Nos.1 TO 5:- All the points are taken up together br consideration as they are interconnected and to avoid repetition. 17. It is clear from the averments macic in the plaint and the written statement filed by defendants b to C) and he fact that defendants 1, 2. 4 and 5 have not chosen to file any 15: written statement, that there is no dispute about the relationship among the parties as also the share to which the plaintiffs tould be entitled to if thc suit is decreed. However, the main contention pertains to the alienation made b defendant No 5 in favour of defendants b to 9. It ma be noted at the outset that the appellants—defendants 1. 2, 4 and 5 have not filed any written statement and havc now filed an application seeking permission of this Court to file ritten statement and also filed another application for production of additional documents mainb comprising of documents in 0.S. No.216/2004. 18. The learned counsel for the appellants has taken us through the documents sought to be produced and it is clear on perusing of the said documents that the documents pertaining to O.S. No.216/2004 are sought to be produced to show that the second wife and the daughter ol Huchchappa Halyal had filed 0.8. No 2lb 2004 for partition and possession contending that the plaintiff No.1 is thc sceond wife and plaintiff No.2 is the daughter of I ‘ plaintitf and the3 are entitled to share in the suit schedule properties. In the said I. :16: suit, the trial court held, as per the judgment which is produced as additional documents sought to be produced, that the plaintiffs in the said suit have failed to prove that the plaintiff No.1 is the wife and plaintiff No.2 is the daughter of plaintiff No.1 through l-luchchappa Halyal and the material on record would also show that the suit filed by the plaintiff No.1 was dismissed as per the order dated 24.11.2008 and the suit filed by the plaintiff No.2—Smt.Padmavati was dismissed on 27.03.20 10. Therefore, since the said suit was dismissed mainly on the ground that the plaintiffs have failed to prove that 2nd plaintiff is the daughter of 1t plaintiff and 1t plaintiff is the second wife of Huchchappa Halyal and the other issues are answered against the plaintiffs. Therefore, the documents pertaining to the said suit would not be helpful to the appellants in this case to contend that the alienation was valid or defendant No.5 or the plaintiff& are not entitled for share in the property. Moreover, the said documents are the documents which could have been obtained and produced during the course of trial before the trial court and no ground whatever is made out to show want of diligence on the part of the :17: appellants in not obtaining the documents and producing the same before the trial court and having regard to the above said findings, we are of the opinion that the said documents are not material in deciding the case of the plaintiffs and defendants as referred to above. Therefore, the application for production of additional documents is devoid of merits and liable to be set aside. 19. So far as Misc.Cvl. 105724/2011 seeking permission to file written statement is concerned, it is clear from the application that it is filed on 08.06.201 1. The appeal vas filed on 22.10.2005. Admittedly, the appellants have not filed the written statement though sufficient opportunity was given by the trial court to file written statement. 20. Even while filing the appeal, no application was filed seeking permission of the Court to file written statement and it is only on 08.06.2011, an application has been filed seeking for permission to file written statement by the appellants. Therefore, we hold that no ground is made out for granting permission to file written statement by the appellants herein. 18: 21. In view of the dismissal of the above said applications, the only point that survives for determination is as to Whether the findings of the trial coun that the alienation made by the defendant No.5 in fauour ofdefendants 6 to 9 is not binding upon the plaintiffs share, is justWed or calls for interference in this appeal? 22. We have already noted that Defendants 6 to 9 who are aggrieved by the judgment and decree passed by the trial court have not chosen to prefer any appeal. However, in view of the fact that defendant No.5 is an appellant in this appeal along with defendants 1, 2, and 4, the said contention has to be considered in the light of the oral and documentary evidence adduced by the parties before the trial court. 23. It is clear from the averments made in the vritten statement that the appellants have not filed the written statement before the trial court and permission to file written statement has been rejected by this Order by rejecting the application Misc.Cvl. 105724/20 1 1. 19: 24. Defendants 6 to 9 who are the alienees from defendant No.5 though had filed writwn statement, have not preferred any appeal being aggrieved by the judgment and decree passed by the trial court, declaring that the alienation made by defendant No.5 in favour of defendants 6 to 9 is not binding upon the plaintiffs share. 25. Even otherwise it is clear from the material on record that defendant No.5 was not examined before the trial court and the only witness examined on behalf of the defendants is DW- 1. The I M plaintiff, examined as PW- 1, has reiterated the averments made in the plaint that the said alienation is not binding upon the plaintiffs share, as defendant No.5 was addicted to vices and the alienation is not for legal necessities or for the benefit of the estate. The only contention taken in the written statement filed by defendant No.6 is that the said, alienation is with the consent of the plaintiffs. It is clear from the facts elicited in the cross examination of PW- 1 that she has denied the suggestion made to her regarding the consent given by her and she has also 4 :20: denied the defence taken by defendants 6 to 9—the defendants before the trial court. 26. So far as the evidence of DW- 1, defendant No.6 in the suit, is concerned, it is clear that he has re-iterated the averments made in the written statement that the plaintiffs have consented for the alienation and the documents produced by him comprises of Exs.D- I to 3. 27. Ex.D- I is the consent dated 19.06.2004 given by the defendant No.1 for the alienation in O.S. No.180/2004 and the said document is not at all helpful in proving that the plaintiffs have consented for the said alienation. Admittedly, plaintiffs and defendants are the members of a joint family and no prior partition is alleged or proved. It is clear from the evidence of DW-1 that apart from stating that the plaintiffs had consented for the alienation and produced Ex.D- 1. which is not helpful to the case of the appellants herein. The facts elicited in the cross-examination of PW- I would clearly show that there is no material to prove that the plaintiffs have consented for the alienation and the consent was given in 0.5. No.180/2004 by the Defendant No. I ahe wife f Honnapaa Halval, who was the fat her of Defendants 2 to 5. 2t-c. On re—appreciatIon of the evIdence, both oral and documentary adduced before the trial court. we hold that the plaintIffs have proved that the suit sched ole properties are the joint fa milv pro perties and defendants have failed to prove that the alenation made iii favour of dofendants 0 to was with the consent of plaintiffs and that it is binding on the plaintiffs. Therefore. it is clear that the udnment and decree passed ha the trial court is justified and does not call for interference in this appeal. Accordinblv. we answer the points for determination. 29. In the result, we pass the follo\ving order:- ORDER (I) MiscCvl10519712011 filed by the appellants seeking for production of additional documents is dismissed: (ii) MiscCvl105724!2011 seeking permission to file written statement is dismissed: (iii) Appeal is dismissed: (iv) The judgment and decree passed by 22 the Addi Civil Judge (Sr Dn ) Hubli in 0.S No 180/2004 dated 09 092005 is confirmed Sd! JUDGE RKK/ JUDGE