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Judgment
A.V. Chandrashekara, J.—Both these appeals have arisen out of a common judgment passed by the learned Addl. Civil Judge (Sr. Dn.), Srirangapatna, in O.S. No. 138/2003 clubbed with O.S. No. 237/2005 dated 25.03.2011.
Appellant in RFA No. 1370/2011 Sri Srinivasu is the defendant No. 1 in O.S. No. 237/2005 and respondent No. 1 Puttasrinivasu, is the lone plaintiff in the said suit. Remaining respondents are the remaining defendants in the said suit. Connected appeal bearing RFA No. 1346/2011 has arisen out of the judgment passed in O.S. No. 237/2005. Appellant Sri Puttasrinivasu, is the plaintiff in O.S. No. 237/2005 and respondents herein are the defendants 1 to 5 in the present suit.
Puttasrinivasu, the appellant in RFA No. 1346/2011, the lone defendant in O.S. No. 138/2003 is aggrieved insofar as it relates to the quantum of share allotted to his sister Vanajakshi. It is his grievance that she was married twenty years prior to the filing of suit and therefore, she is not entitled to half share in the suit schedule property. The Trial Court is stated to have erred in awarding 1/2 share.
Appellant in connected RFA No. 1370/2011 i.e., the first defendant in O.S. No. 237/2005 is aggrieved insofar as it relates to the non-providing of sufficient opportunities for him to tender his evidence. Several grounds have been urged in both these appeals.
Facts leading to the filing of two appeals are as follows:-
Smt. Vanajakshi, chose to file a suit for partition and separate possession in respect of schedule property against her brother in O.S. No. 138/2003 Subsequently, the defendant in O.S. No. 138/2003 chose to file a suit for partition and separate possession by including all the necessary parties and properties.
One person by name Thimmaiah was the propositus and he had a wife by name Venkatamma. Both of them are no more. The said Thimmaiah and Venkatamma had three sons namely Thimmaiah, Venkatappa and Srinivasu. The first two sons viz., Thimmaiah and Venktappa are no more. The wife of Thimmaiah and his children by name Sarojamma, T. Gopalaswamy and Rukmini are the defendants 2, 3 and 5 in O.S. No. 237/2005. Venkatappa is also no more and has left behind him Vanajakshi and Puttasrinivasu, the parties in O.S. No. 138/2003 as his legal representatives. The plaintiff and defendants of O.S. No. 237/2005 were the members of the joint family and succeeded to the properties after the death of Thimmaiah and Venkatappa, who died on 24.08.1992 and 17.06.1998 respectively. Venkatamma wife of the propositus died on 18.08.2000. The mother of Vanajakshi and Puttasrinivasu died when they were quite young.
Hence, the father of Puttasrinivasa and Vanajakshi had not taken second wife and had looked after his children. According to Vanajakshi suit properties in O.S. No. 138/2003 are all joint family properties and at no point of time, they were subjected to any partition. According to the plaintiff Vanajakshi, her father had never executed a Will on 01.09.1997 and that he was not in sound mind when the alleged execution took place. Since her legitimate share was refused, she had to file a suit for partition and separate possession.
Defendants 1 to 5 in O.S. No. 237/2005 had filed written statements. First defendant had filed separate written statement and defendant Nos. 2 and 3 had filed a common written statement. Fourth defendant had filed a separate written statement. Fifth defendant was impleaded subsequent to the institution of the suit and had filed a memo adopting the written statement filed by defendants 2 and 3.
Case of the first defendant in the subsequent suit is that all the properties were subjected to division on 21.07.1980 and that was effected by their father and mother with the mutual consent. All the persons are stated to be in exclusive possession of their respective shares after the allotment was done on 21.07.1980. Subsequently, some properties have been acquired from their own income and first defendant is stated to have put up a residential house borrowing huge loan and is stated to be living therein. Puttasrinivasu is stated to have filed a suit in order to take vengeance. The contents of the written statement filed by defendants 2 and 3 are similar to the contents found in the written statement filed by the first defendant. All of them have taken up a specific contention in regard to the earlier partition and the respective shares being allotted to the parties and thereafter, enjoying the same. With these pleadings, they had requested for dismissal of the suit.
On the basis of the above pleadings, the following issues came to be framed separately in O.S. Nos. 138/2003 and 237/2005:
Issues: in O.S. 138/03
Whether the defendant proves that his father has executed alleged will in his favour on 1-9-1997, in respect of the schedule properties as contended in his written statement?
Whether the plaintiff proves that the defendant has created the said will with an intention to dupe her legitimate share in respect of the schedule properties as pleaded in her plaint?
Whether the defendant proves that other family members Srinivasu, Sarojamma, Gopalaswamy and one Balaramu are necessary parties and non-joinder them the suit of the plaintiff is defeated as contended in his written statement?
Whether the defendant proves the plaintiff has not included all the properties in this suit and if so partial partition is not permissible under law as contended in his written statement?
Whether the plaintiff is entitled 1/2 share in respect of the schedule properties as prayed?
What order or decree?
Issues: in O.S. 237/05
Whether the plaintiff proves that, the suit schedule properties are the undivided joint family properties of himself and the defendants?
Whether the plaintiff further proves that, he is in joint possession and enjoyment of suit properties along with the defendants as joint owner?
Whether the defendants prove that, partition had already been effected on 21-07-1980 and as such the sharers are in exclusive possession and enjoyment of their respective properties?
Whether the suit is not maintainable in the present form?
Whether the plaintiff is entitled for the relief sought for?
What order or decree?
The plaintiff of O.S. No. 138/03 Vanajakshi, 13 examined as PW1 and Puttasrinivasu, the plaintiff to the subsequent suit is also examined as PW1. Srinivasu, the appellant in RFA No. 1370/2011 is examined as DW1 and T. Gopalaswamy the defendant No. 3 in subsequent suit is examined as DW2.
31 exhibits have been got marked on behalf of the plaintiff in O.S. No. 237/2005 and six exhibits in O.S. No. 138/2003. Defendants in O.S. No. 237/05 have got marked in all 14 exhibits. After assessing the evidence and hearing the arguments, the learned Judge has passed the following order on 25.03.2011:
"Suit filed by the plaintiffs in O.S. 237/05 & in O.S. 138/03 is decreed. The plaintiff and defendant no. 4 in O.S. 237/05 and the plaintiff and defendant in O.S. 138/03, are allotted 1/6th share in the suit schedule properties. The defendant No. 1 in O.S. 237/05 is entitled for 1/3rd share in the suit schedule properties. The defendant Nos. 2, 3 & 5 in O.S. 237/05 are entitled for 1/9th share in the suit schedule properties. In the circumstances there is no order as to cost. Draw preliminary decree accordingly. The original of the judgment is kept in O.S. 237/05 and the copy of the same is kept in O.S. 138/03."
We have perused the grounds raised in both these appeal and we have heard the learned counsel appearing for the parties ill both these appeals. The points that arise for our consideration are as follows:
Whether the appellant Srinivasu in RFA No. 1370/2011 needs to be given proper opportunity to prosecute his case?
Whether any interference is called for by this Court and if so, to what extent?
Reasons:
Though O.S. No. 138/2003 is filed prior to O.S. No. 237/2005, it cannot be considered as a comprehensive suit. Though both the suits are for partition and separate possession subsequent suit filed in O.S. No. 237/2005 is a comprehensive suit including all the parties and properties.
As many as nine immovable properties have been included in the schedule appended to O.S. No. 237/2005. Srinivasu the first defendant in the subsequent suit is examined as DW1. He was examined-in-chief. But he was not tendered for cross-examination. It is his specific case that the genealogy tree furnished by the plaintiff Puttasrinivasu, is not correct and that the properties mentioned in the said suit are not joint family properties. It is his specific case that his father had effected partition of all the joint family properties on 21.07.1980 and since then, the parties have been enjoying their respective shares separately. Subsequently, he is stated to have put up a house by spending a huge amount in item No. 6. It is his specific case that the plaintiff Puttasrinivasu, has also been given proper share by his father and therefore, suit filed by him is not maintainable.
Anyhow, the Trial Court has chosen to decree both the suits and thus the defence taken up by the appellant Srinivasu is not established any any manner. The reason assigned by the Trial Court is that DW1 Srinivasu, did not tender himself for cross-examination. In the light of Srinivas being not tendered for cross-examination, his evidence has been eschewed from consideration. Admittedly, burden is upon the person who takes up the plea of earlier partition. In the light of the burden being not effectively discharged, the Trial Court has not attached any significance to the defence taken up by Srinivasu and hence, he is aggrieved by the said judgment.
15 Learned counsel for the appellant Sri S.V. Giridhar, has vehemently argued that the Trial Court should have given an opportunity to Srinivasu, to prosecute his case properly.
We have perused the order sheet maintained in O.S. No. 237/2005. Srinivasu, was examined in chief fully on 08.10.2010 and he was not tendered for cross-examination. The learned Judge chose to pass a judgment only on 25.03.2011. There was sufficient opportunity for the appellant Srinivasu, to have requested the Court for recalling the order of giving up his evidence by filing necessary application. Both the suits were quite old suits and therefore, the learned Judge was expected to go on with the case without further delay. There are circulars directing the Judicial Officers to give priority to cases which are more than 5 years and 7 years old. By the time the suits were disposed of, the first suit was already eight years old and the second suit was six years old. Several opportunities had been given to the learned counsel appearing for the parties to submit their arguments and in the meanwhile, necessary application should have been filed for recalling DW1. No such attempt has been made and therefore the approach adopted by the Trial Court cannot be found fault with. On that ground alone, we cannot confirm the judgment. The appellant has assigned some reasons as to why he could not prosecute his case. We can only say he was not diligent in prosecuting his case though he is a resident of Srirangapatna Town.
In the light of specific stand taken by him and the burden cast upon him to prove the earlier partition and acquisition of certain properties on his own, it is better to give an opportunity for the appellant Srinivasu to prosecute his case and to take his defence to a logical end. When the rights of the parties in respect of large extent of immovable properties are involved, it is always better to give an opportunity and avoid further litigation. The negligence or inaction on the part of appellant Srinivasu, could be suitably met with by imposing suitable costs and by imposing suitable restriction on him in the matter of prosecuting his defence. This assumes more importance in the light of subsequent suit being a comprehensive suit having bearing on the earlier suit filed by Vanajakshi. Hence we are of the opinion that plaintiff Vanajakshi of the earlier suit should not be made to suffer and whatever cost we intend to impose must be made available to her and the said cost must be mulcted on the appellant Srinivasu in RFA No. 1370/2011. Accordingly, point No. 1 is answered in the affirmative.
Though learned counsel Sri Giridhar has advanced arguments on all the grounds urged in the appeal memo, later on he has restricted his argument on the question of remanding the matter by giving an opportunity for his client to prosecute his case in the Trial Court only. Hence, we find lot of force in the submission made by Sri Giridhar learned Advocate appearing for Srinivasu. If the appellant Srinivasu is able to probabilise his case, then automatically the shares of Vanajakshi and her brother will also come down.
In this view of the matter, we feel that both the appeals will have to be allowed and the matters are to be remitted to the Trial Court with a direction to dispose of the matter after giving suitable opportunities to the parties, more particularly, Sri Srinivasu, the appellant i.e., defendant No. 1 in the subsequent suit i.e., O.S. No. 237/2005.
ORDER
Appeals are allowed. Both the appeals are allowed. The judgment and decree passed in O.S. No. 138/2003 and O.S. No. 237/2005 dated 25.03.2011 are set aside. Matters are remitted to the Trial Court with a direction to dispose of the matter on or before the closure of Civil Courts for Summer Vacation for the year 2015. Parties shall appear before the Trial Court on 5th November 2014 without fail. If possible the learned Addl. Civil Judge (Sr. Dn.), Srirangapatna, shall try to conduct proceedings on day-to-day basis and make all endeavour to dispose of the matter before the time fixed by this Court.
The appeals are allowed subject to payment of cost of Rs. 50,000/- (Rupees fifty thousand only) to be paid by Srinivasu the appellant in RFA No. 1370/2011 and the same shall be paid to Vanajakshi-plaintiff in the earlier suit i.e., O.S. No. 138/2003. The payment of cost of Rs. 50,000/- is a condition precedent for prosecuting his case.
The; appellant shall either deposit the amount well in advance before the Trial Court or shall pay the same to Vanajakshi on 5th November 2014 in Court. Both the parties and Advocates to co-operate with the learned Judge in disposing of the matter.
There is no order as to costs.
A copy of this judgment shall be kept in the connected appeal.