C.N.Ramappa Gowda vs C.C.Chaqndergowda (D) By Lrs.& Anr

3. Before we appreciate the aforesaid questions involved in this appeal, it appears essential to record some of the salient features and facts of the case giving rise to this appeal after grant of leave.

4. The plaintiff-appellant had filed a suit for partition and separate possession of landed property measuring 13 acres 20 guntas which according to his case was a joint family property wherein the partition had not taken place and as the defendants- respondents had failed to arrange for partition and separate possession of the plaintiff’s half share in the schedule property, the plaintiff was compelled to file a suit for partition. It was also averred in the plaint that the defendants-respondents had partitioned the property amongst themselves without giving any share to the plaintiff-appellant. The plaintiff-appellant sent a legal notice dated 24.05.1999 to the defendants-respondents which were duly served on them in response to which the defendants appeared through their advocate and sent a reply on 10.07.1999 denying the claim of the plaintiff. The plaintiff-appellant in view of the reply of the defendants-respondents filed a suit bearing O.S.No.197/2002 before the court of Civil Judge (Sr. Divn.) at Chikmagalur for partition and separate possession. The defendants-respondents in the said suit were served with the notice in response to which Vakalatnama was filed by their advocate. However, in spite of numerous opportunities, no written statement was filed by the defendants-respondents. Since the defendants-respondents failed to file written statement, the trial court directed the plaintiff to lead evidence. The plaintiff filed his evidence by way of affidavit along with certain documents which were marked as Ex.P-1 to P-

10. However, the plaintiff was neither cross-examined by the defendants nor the defendants had filed the written statement as already stated hereinbefore.

5. Since the defendants neither filed written statement nor cross- examined the plaintiff, the learned Judge vide judgment and order dated 28.01.2004 on the basis of the pleadings and the ex-parte evidence adduced by the plaintiff in support of his case, decreed the suit in favour of the plaintiff-appellant and was thus held entitled to a decree of partition to the extent of half share in the landed property. The learned trial judge further held that the defendants although were served with the notice and were represented by their counsel, they did not choose to file written statement denying the case of the plaintiff and hence there was no reason to disbelieve the case of the plaintiff. Accordingly, the suit was decreed directing that the plaintiff-appellant shall be entitled to half share in the property.

16. As a consequence of the aforesaid analysis and the reasons recorded hereinabove, we are of the view that the High Court was legally justified in setting aside the judgement and decree of the trial court and allowing the appeal to the limited extent of remanding the matter to the trial court for a de-novo trial after permitting the defendant-respondent to file the written statement. The appeal consequently stands dismissed. However, we are conscious of the fact that the Plaintiff/Appellant for no fault on his part has been forced to entangle himself in the appeal before the High Court as Respondent giving rise to an appeal before this Court, although the Defendant/Respondent had leisurely failed to file written statement in spite of numerous opportunities to file the same and also had failed to cross-examine the plaintiff witnesses, but once the decree for partition of half share was passed in favour of the Plaintiff/Appellant, the Defendant/Respondent promptly challenged the same by filing an appeal before the High Court. Since the disposal of the suit for partition has now been dragged into a protracted retrial of the suit, we consider it legally just and appropriate to balance the scales of equity and fairplay by awarding a sum of rupees twenty five thousand by way of a token cost to the Plaintiff/Appellant to be paid by the Defendant /Respondent expeditiously as the impugned order of the High court directing retrial shall be given effect to only thereafter.

17. The appeal thus stands dismissed subject to the payment of cost by the Defendant/Respondent to the Plaintiff/Appellant.

…..……………………..J (T.S. Thakur) …………………………J (Gyan Sudha Misra) New Delhi, April 23, 2012