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Judgment
A.S. Pachhapure, J.—The appellants have challenged the Judgment and Decree in R.A. No. 119/2003 dismissing their suit for partition and separate possession of the suit properties by setting aside the decree granted by the trial Court.
The facts relevant for the purpose of this appeal are as under:
"The appellants herein are the plaintiffs, whereas respondents 1(a) to (c) are the legal representatives of 4th defendant, the 2nd respondent is 5th defendant, respondents 3(a) to (c) are the legal representatives of 6th defendant, respondents 4, 5 and 6 are defendants 7, 8 and 9 respectively, Respondents 7(a) to (c) are the legal representatives of 10th defendant, the legal representatives of the 1st defendant are shown as respondents 8 to 13, the 14th respondent is the 2nd defendant and the 15th respondent is the 3rd defendant.
The plaintiffs and the defendants 2 and 3 are sons of the 1st defendant. The other defendants are purchasers of the suit property. Defendants 4 to 10 are the sons and daughters of late Dasappa, who had purchased the suit property.
The suit properties are agricultural lands in item No. 1 bearing Sy. No. 233/1, measuring 2 acres 37 guntas, whereas item No. 2 is the house property. Both these properties have been described in the schedule to the plaint. As averred by the plaintiffs, there was a partition about 25 years prior to institution of the suit between the 1st defendant and his brothers. The suit properties were allotted to the share of the 1st defendant in the said partition. The plaintiffs averment is that the suit properties are the joint family properties and they are the sons of the 1st defendant. As the 1st defendant sold 28 guntas of land in item No. 1 and item No. 2 of the suit properties to the father of defendants 4 to 10 under a registered Sale Deed dated 22.05.1986 without any legal necessities and without there consent, sought for their share in the suit properties by filing the present suit.
Defendants 1 to 3 did not contest the suit. Defendants 4 to 10 filed statement of objections denying the allegations made and it was their contention that their father died on 17.10.1993 leaving behind them as his legal representatives. They also denied that their father purchased the suit properties without the knowledge of the plaintiffs. They contended that the sale of portion of item No. 1 and item No. 2 of the suit properties is for legal necessities. Furthermore, they contended that under Ex. D4, the Sale Deed said to have been executed on 22.05.1986, the day on which the suit properties were sold, was purchased by the 1st defendant and the sale of the suit properties was to purchase the aforesaid properties under Ex. D4 Therefore, it was their contention that the sale is for legal necessity and binds all the members of the 1st defendant. On these grounds they sought for dismissal of the suit.
On the basis of the pleadings, the trial Court framed the issues and permitted the parties to produce their evidence.
On behalf of the plaintiffs P.W. 1 was examined and in his evidence, Exs. P1 to 7 were marked. On behalf of the defendants D.Ws. 1 and 2 were examined and in their evidence Exs. D1 to 6 were marked.
The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record decreed the suit holding that the sale is not for legal necessity and it granted a share to the plaintiffs. Aggrieved by the Judgment and Decree, defendants 4 to 10 approached the first appellate Court in R.A. No. 119/2003. During the pendency of the suit, an application was filed under Order XLI Rule 27 CPC by the appellants therein seeking permission to produce the documents. The said application was allowed by the first appellate Court and ultimately, the appeal came to be allowed dismissing the suit instituted by the appellants herein. Aggrieved by the Judgment and Decree of the first appellate Court, the present appeal is filed."
This Court on 16.03.2009 while admitting the appeal has raised the following substantial questions of law for consideration:
"1) Whether the lower appellate Court by looking into the documents produced along with the application filed under Order 41 Rule 27 CPC without following the procedure as contemplated under Rule 28 has come to a wrong conclusion based on the said documents which has led the lower appellate Court reversing the finding of the trial Court?
2) Whether the lower appellate Court was justified in reversing the finding of the trial Court without proper opportunity for the appellant herein to dispute the documents produced along with the said application?"
This Court vide order dated 11.12.2014 raised the following substantial question of law for consideration:
"3) Whether I.A. No. VIII filed under Order XLI Rule 27 CPC deserves to be considered?"
I have heard learned counsel for the parties.
Learned counsel for the appellants submits that when the application filed by the respondents under Order XLI Rule 27 CPC, seeking permission to produce the documents was entertained by the first appellate Court, the first appellate Court could have given an opportunity to the appellants herein to produce their evidence and as it is not done, the impugned Judgment and Decree would be erroneous and illegal. He also submits that the first appellate Court committed an error in reversing the Judgment and Decree and in doing so, did not assign reasons to over-come the findings of the trial Court. He submits that there was no necessity for sale of the suit properties and in the absence of any legal necessity, the sale is not binding on the share of the plaintiffs i.e., the appellants herein. Therefore, it is the contention of learned counsel for the appellants that the Judgment and Decree of the first appellate Court is erroneous and seeks to set aside the same by restoring the Judgment and Decree of the trial Court.
On the other hand, learned counsel for the contesting respondents supporting the Judgment and Decree of the first appellate Court contends that the sale is for legal necessity and that was rightly accepted by the first appellate Court. He submits that even if the application filed under Order XLI Rule 27 CPC was allowed by the first appellate Court and no opportunity was granted by the first appellate Court that itself is not a ground to set aside the impugned Judgment and Decree for the reason that the sale is for legal necessity and the first appellate Court has accepted the evidence put-forth by them in the trial Court by assigning appropriate and valid reasons to its findings.
As could be seen from the material placed on record, the Sale Deed in respect of item Nos. 1 and 2 have been produced by the plaintiffs at Ex. P3 dated 23.05.1986. The perusal of this document which has been produced by the plaintiffs itself reveals that the 1st defendant sold 28 guntas of the land in item No. 1 and also item No. 2 to the father of defendants 4 to 10 for a consideration of Rs. 4,000-00. It is recited in the Sale Deed that in consideration of the house of the vendor and the land being sold to the 1st defendant, the suit property i.e., 28 guntas of land in item No. 1 and item No. 2 were sold to the father of defendants 4 to 10. To mean, on the said day of the sale transactions, the 1st defendant has sold the portion of item No. 1 and item No. 2 of the suit properties to the father of defendants 4 to 10 and purchased the land measuring 7 1/2 guntas and the house property under the Sale Deed Ex. D4. So, on the date of the sale transaction, there are two Sale Deeds between the parties. The one is in respect of the sale of portion of item No. 1 and item No. 2 by the 1st defendant in favour of the father of defendants 4 to 10 under Ex. P3 and the sale transaction by the father of defendants 4 to 10 in favour of the 5th defendant who purchased 7 1/2 guntas of land in addition to the house property. This fact is clear from the Sale Deed-Ex. P3, which is relied upon by the plaintiffs in the trial Court. So, as could be seen from the contents of Ex. P3, it is specifically stated in the Sale Deed that to clear some debt and to purchase the property of the father of defendants 4 to 10 prior to suit items 1 and 2 were sold. In the aforesaid circumstances, it cannot be said that the same is not for legal necessity. It is for this reason, which has been considered by the first appellate Court in holding that defendants 4 to 10 have established their defence of existence of legal necessities for the sale of the suit properties.
The perusal of the Judgment and Decree of the trial Court would reveal that this aspect of the matter has not been considered and in the circumstances, the trial Court held that the sale is not for legal necessity. That the 1st defendant has taken the benefit by the sale of the joint family properties and the fact that the said benefit is incorporated in the sale transaction itself, nothing more is necessary to prove by defendants 4 to 10 to establish that the sale was for legal necessity.
That apart, when the 1st defendant sold the aforesaid properties and by receiving the sale consideration has purchased the other two properties from the father of defendants 4 to 10, they also become joint family properties. If the contention of the defendants before the trial Court is to be accepted, then in the suit instituted for partition and separate possession, it was necessary for the plaintiffs to include those properties as well. There are no acceptable reasons for non-inclusion of the properties. Unless there are acceptable reasons for non-inclusion of any of the properties of the family, the suit filed for share in the particular item is not maintainable in law. So, considering the aforesaid point, while assessing and considering the findings of the trial Court, I am of the opinion that the first appellate Court was justified in dismissing the appeal.
So far as the application filed under Section XLI Rule 27 CPC is considered, it was the duty of the first appellate Court to provide an opportunity to the appellants herein to produce counter-affidavit if any by them. In fact, without affording any opportunity, the application was allowed and the document was considered. But, any how, the wrong committed by the first appellate Court in allowing the application and considering the document without opportunity to the appellants herein does not cause any injustice to them for the reason that the sale of the suit properties itself was for legal necessity and when that finding is accepted that the suit itself cannot be maintained, and no importance can be attributed to the application filed under the provisions of Order XLI Rule 27 CPC and allowing it without affording an opportunity to the appellants herein.
Learned counsel for the appellants has placed reliance on the decision reported in (2012)8 Supreme Court Cases 148 Union of India v. Ibrahim Uddin and another], wherein the Apex Court held that whenever an application is filed under Order XLI Rule 27 CPC is allowed, it is necessary to the Court to assign reasons. This principle has no application, as the Order on the said application will not affect the merits of the appeal.
I.A. No. 1/14 was filed under Order XLI Rule 27 CPC, seeking permission to produce Partition Deed dated 01.06.1972. Partition Deed, which has been produced is with regard to a partition of the properties of the family of the 1st defendant without he being a party to the document. Under this application, it is the contention of the appellants that the partition of the family properties was only amongst other brothers of the 1st defendant and the 1st defendant was not a party to the partition. The document, which is sought to be produced is contrary to the contentions raised by the parties in the trial Court. In the plaint there is specific averment by the appellants that there was partition between the 1st defendant and his brothers 25 years prior to institution of the suit and the suit properties were allotted to the properties of defendant No. 1. When such contention was taken by the defendants, seeking permission to produce this document would be contrary to the pleadings set up by the plaintiffs/appellants. Therefore, I am of the opinion that the application has no merit and it is accordingly rejected.
So, considering the submissions made by learned counsel for both the parties and on perusal of the material placed on record, I answer the substantial questions of law No. 1 partly in affirmative and partly in negative, No. 2 in affirmative and No. 3 in negative. This appeal deserves to be dismissed. Therefore, I.A. No. 1/2014 and the appeal are accordingly dismissed.