K. Keshava Bhat vs Devaki Amma & Ors

K. Keshava Bhat ...Appellant (s)

Vs.

Devaki Amma & Ors. ... Respondent (s)

O R D E R

Leave granted. Heard learned counsel for the parties.

This appeal arises out of a suit for partition filed by

respondents 1 to 5. The appellant and the sixth respondent

were respectively the defendants 1 and 2. For convenience,

we will also refer to the parties by their rank in the

trial court.

2. Briefly stated, the facts are : Keshava Bhat - the

first defendant, Narayana Bhat - the second defendant, and

late Anantheshwara Bhat (husband of plaintiff no.1 and 2

father of plaintiffs 2 to 5) were sons of one Sham Bhat who

died around the year 1964. The plaintiffs filed the suit

for partition of the joint family properties in the year

1971. In addition to defendants 1 and 2, the plaintiffs

impleaded as defendants, the six sons of first defendant

(defendants 3 to 8), the only son of second defendant

(defendant no.9), the widow of Sham Bhat (defendant no.10),

two daughters of Sham Bhat (defendants 11 and 13) and a

daughter of a deceased daughter of Sham Bhat (defendant

no.13). Sham Bhat's widow (10th defendant) died during the

pendency of the suit. The plaintiffs alleged that the first

plaintiff was a young widow and the plaintiffs 2 to 5 were

all minors when the suit was filed 37 years ago; that they

were kept away from the joint family properties; and that

they had no access to the records pertaining to the joint

family properties.

3. The plaintiffs alleged that the immovable properties

described in Schedule `A' and the movables described in

Schedule `B' to the plaint were the joint family properties

which required to be partitioned. Schedule `A' consisted of

four parts (referred to as `items' in the plaint) of the

following description:

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(i) Part I of `A' Schedule enumerates the muli right

properties, that is, properties which belonged to the

joint family. They were in the possession of tenants

and were the subject matter of tenancy claims by

tenants. It is not in dispute that none of these lands

is available for partition, as occupancy rights in

respect of these lands have been granted to the

tenants under the Karnataka Land Reforms Act, 1961.

(ii) Part II of `A' Schedule enumerates the mulgeni

properties, that is, lands held by the joint family on

perpetual tenancy. It is admitted that these are

joint family properties and are in the possession of

the family (except an extent of 23 cents in survey

No.94/1B and an extend of 1A.56 Cents in survey

No.97/2).

(iii)Part III of 'A' Schedule enumerates the chalgeni

properties, that is, lands held under tenancy at will

in regard to which claims for occupancy rights in Form

No.7 under the Karnataka Land Reforms Act were filed

by the first defendant and occupancy rights have been

registered in the name of first defendant. The

plaintiffs contend that they are the joint family 4

properties as they were earlier in the occupation of

Sham Bhat and that the first defendant as the eldest

son of Sham Bhat was representing the family in the

tenancy claim proceedings and benefit received by

registration of occupancy rights in his favour would

enure to the joint family and therefore, the said

lands were liable for partition. The first defendant

on the other hand contended that they were his self-

acquired properties. He denies that his father Sham

Bhat was the tenant of any of these lands.

(iv) Part IV of `A' schedule refers to properties which

were added as joint family properties, subsequent to

the filing of the suit, by an amendment to the plaint.

Item (a) stood in the name of Sham Bhat and items (b),

(c) and (d) stood in the names of the first defendant.

4. Appropriate issues were framed by the trial Court.

Plaintiffs examined three witnesses and defendants examined

two witnesses. The documentary evidence of plaintiffs

consisted of Ex.P1 to Ex.P22 and the documentary evidence

of defendants consisted of Ex.D1 to D80. After considering

the oral and documentary evidence, the trial Court, by

judgment and decree dated 31.3.2005 decreed the suit in 5

part. The trial Court held that the plaintiffs together

were entitled to a share of 31/108, the first and second

defendants were each entitled to a share of 37/108, and

defendants 11, 12 and 13 were each entitled to a share of

1/108, in the following joint family properties :

(i) All lands described in Part-II of 'A' Schedule

(excluding Sy. No.94/1B measuring 23 Cents and Sy. No. 97/2

measuring 1.56 Acres).

(ii) Land described as item (a) of Part IV of `A' Schedule,

that is Sy. No.96/2A measuring 6A.24 Cents.

(iii) Movables described in the `B' Schedule.

Insofar as properties described in Parts I, III and items 2

to 4 of Part-IV of Schedule 'A', the claim of plaintiffs

for partition was rejected.

5. Feeling aggrieved by refusal of relief in regard to

the properties enumerated in Part-III of Schedule `A' to

the plaint, the plaintiffs filed a first appeal before the

High Court. When the appeal was listed for admission on

21.9.2005, the High court indicated that the appeal will be 6

heard finally at the stage of admission itself. Accordingly

it heard the appeal on merits on several dates of hearing,

without admitting the matter and ultimately by judgment and

decree dated 27.8.2007 allowed the appeal. The High Court

held that the lands described in Part-III of 'A' Schedule

were joint family properties and that the appellants, first

defendant, and second defendant were entitled to one-third

share each in those lands. The judgment of the trial Court

in regard to other items of the plaint schedule was not

disturbed. The said judgment and decree of the High Court

is challenged by the first defendant in this appeal.

6. One of the submissions made by the appellant (first

defendant) is that the High Court had reversed the decision

of the trial Court by completely ignoring the evidence of

the first defendant. The appellant pointed out that the 80

documents were exhibited by him in support of his

contention that the properties described in Part-III of the

Schedule were his self acquired properties, and none of

them were either referred or considered by the High Court

in its judgment.

7. On perusal of the judgment, we find that there is

considerable force in the submission of the appellant. 7

Paragraphs 1 to 7 of the judgment refer to the facts

leading to the appeal. In paragraph 8, the Court commented

that the trial Court has not appreciated the documentary

evidence produced by the plaintiffs (Ex.P3 to Ex.P18) in

the correct perspective. In paragraphs 9 and 10, the High

Court referred to Ex.P3 to Ex.P10 exhibited by plaintiffs.

Paragraph 11 stated that the decisions relied on by the

counsel for the first defendant were not relevant. In

paragraph 12, the High Court drew an adverse inference

against the first defendant for non-production of Form

No.7 filed by him under the Karnataka Land Reforms Act

claiming grant of occupancy rights, recorded a finding that

the chalageni lands (enumerated in Part-III of `A'

Schedule) were earlier held by Sham Bhat, and therefore,

they were the joint family properties. In paragraph 13, it

noted that second defendant who had supported the case of

the first defendant in the trial Court, had turned round

and supported the case of the plaintiffs at the hearing of

the appeal, by stating that the chalageni lands (described

in Part-III of `A' Schedule) were indeed joint family

properties. In paragraph 14, the High Court allowed the

appeal, reversed the decree of the trial Court for the

reasons stated in paras 9, 10 and 11 of its judgment, and

allotted one-third share to the appellants, first defendant 8

and second defendant in the lands described in Part-III of

Schedule `A' to the plaint.

8. The High Court did not formulate any points for

consideration. It did not refer to the evidence of DW1 and

DW2. It did not refer to the voluminous documentary

evidence (Ex.D1 to Ex.D80) tendered by the first defendant,

on the basis of which the trial Court had held that

properties in Part-III of `A' Schedule were the self-

acquired properties of the first defendant. In fact not

even a single document of first defendant was referred. The

High Court has not assigned any reason for ignoring the

said evidence. It did not also record any finding that the

documents exhibited by first defendant were not relevant.

In the circumstances, we are of the view that allowing an

appeal filed by plaintiffs by referring only to the

exhibits of the plaintiffs and not considering the evidence

of the defendants would amount to reversal of the decision

of trial court without consideration of the evidence.

Therefore, the judgment in appeal cannot be sustained. The

matter requires to be remanded to the High Court for fresh

consideration and disposal in accordance with law. In view

of the above, it is not necessary for us to consider the

various contentions on merits.

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9. Before disposing of the matter, certain incidental

issues also require to be addressed. They relate to grant

of interim maintenance, impleading necessary parties,

reference to mediation etc.

10. When the matter was pending in the trial Court, it is

stated that there was a direction that the first defendant

should pay interim maintenance to the plaintiffs in the

form of produce namely 3.33 candies of areca nut (or money

equivalent to thereof) every year. One of the grievances of

the plaintiffs is that the first defendant has not been

delivering/paying the same. On the other hand, the first

defendant contended that whatever was due has been given

and the plaintiffs were not entitled to the said payment

after the disposal of the suit by the trial court. After

some arguments, ultimately, a consensus was arrived at.

Accordingly, the appellant shall deposit in the High Court,

without prejudice, a lump sum of Rs.6,00,000/- (Rupees six

lakhs only) towards the interim maintenance to plaintiffs

and a lump sum of Rs.4,00,000/- (Rupees four lakhs only)

towards interim maintenance to second defendant. The

appellant shall deposit half of the said amounts by

December 2008 and the remaining half by end of February 10

2009. The plaintiffs and second defendant will be entitled

to withdraw the same, without prejudice to their

contentions. No separate security need be taken in regard

to such withdrawals as their share in the Schedule `A'

Part-II properties will be the security therefor. It is

made clear that if the amount is not so deposited, the

order appointing of Receiver (passed by the Executing

Court) shall stand revived.

11. We are told that defendants 3 to 9 and defendants 11

to 13 were made parties to the appeal before the High

Court. They were subsequently deleted because the dispute

was only in regard to Schedule `A' Part-III properties

which first defendant had claimed to be his own. However,

it will be appropriate if they remain to be parties to the

appeal before the High Court.

12. This long pending litigation (37 years) is among

family members. The second defendant was supporting the

first defendant in the trial Court. He is supporting the

plaintiffs in the appellate stage. Some of the original

parties are said to be no more. Both sides agreed that

having regard to the facts and circumstances of the case,

this is a fit case where a genuine effort should be made 11

to arrive at a negotiated settlement by subjecting

themselves to mediation process in the High Court.

13. During the pendency of the appeal before the High

Court, an application was filed by plaintiffs under Order

41 Rule 27 CPC. The second defendant had filed an

application seeking permission to file additional written

statement. The appeal was disposed of without considering

those applications. All pending interlocutory application

may be disposed of by the High Court either separately or

along with the appeal.

14. We, therefore, allow this appeal, set aside the

judgment and decree of the High Court and remit the appeal

to the High Court with the following incidental

directions/observations:

(i) The High Court may permit the appellants before it to re-implead other defendants who were deleted. The learned counsel for appellant and respondents assure that there will be no delay in either service or appearance of such additional respondents.

(ii) The High Court shall refer the matter to the Bangalore Mediation Centre for attempting a negotiated settlement before the appeal is heard on merits.

(iii) As the appeal relates to a suit which was filed in the year 1971, the High Court shall endeavour to dispose of the appeal expeditiously within six months from the date of impleading the additional respondents. 12

(iv) The High Court shall dispose of the pending interlocutory applications.

(v) Nothing stated above shall be construed as expression of any opinion on merits of the case.

The parties shall bear their respective costs.

...........................J. ( R.V. RAVEENDRAN )

New Delhi; ...........................J. September 18, 2008. ( LOKESHWAR SINGH PANTA )