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Judgment
A.N. Venugopala Gowda, J.—One Chikkapla Chennabasamma had filed O.S. No. 27/1972 in the Court of the then Munsiff. at. Harapanahalli against Chikkapla Channabasappa i.e., the father of the petitioners, to pass a judgment and decree of partition and separate possession. The defendant having not appeared in the suit in response to the suit summons was placed ex-parte and the suit was decreed entitling the plaintiff to 1/3rd share out the plaint schedule properties by a judgment and decree dated 17.07.1972. Miscellaneous application filed under Order 9 Rule 13 of CPC to set aside the said decree having been dismissed, CRP No. 2002/1974 was filed and the said petition was dismissed by an order dated 18.09.1975. The plaintiff-Chikkapla Channabasamma did not initiate the final decree proceedings based on the said preliminary decree. She expired on 13.10.1976. Respondent Nos. 1 to 7 herein filed F.D.P. No. 2/2007 in the Court of Civil Judge at Harapanahalli, u/s 54 of CPC. They claimed that Chikkapla Chennabasamma sold her undivided 1/3rd share in respect of three items of the plaint scheduled property in favour of their father Sri. Chikkapla Muddappa under a registered sale deed dated 03.01.1975 and that Chikkapla Muddappa died on 07.11.2000. The petitioners filed statement of objections to F.D.P. No. 2/2007. In the objection statement, they have denied the entire claim made by the petitioners in F.D.P. No. 2/2007. None of the averments made in the F.D.P. have been left untraversed. During the course of the said proceedings, on behalf of the petitioners in F.D.P. No. 2/2007, Ganesh the 7th petitioner deposed as PW 1, through whom 19 documents were marked. For the petitioners herein, two witnesses were examined as DW 1 and DW 2 through whom Exs. D1 to D6 were marked. The following points were raised for consideration:-
Whether the petition filed by the petitioner in the present form is maintainable?
Whether the petitioners are entitle for the final decree as prayed for?
What order?
The learned trial judge on his own reasoning allowed the petition and appointed Tahasildar of Harapanahalli as a Court Commissioner to demarcate the plaint schedule properties bearing Sy. Nos. 520, 518, 551 through competent Taluk Surveyor as per the judgment and decree-in O.S. No. 27/1972. Assailing the said order, this petition has been filed.
Sri. M. Vishwajith Rai, learned counsel for the petitioners raised multiple grounds as against the impugned order. The main ground which can be taken note for the present is that the findings recorded in the impugned order by the Court below are perverse and illegal and hence, the impugned order is unsustainable.
Sri. Vigneshwar S. Shastri, learned counsel appearing for the respondents, on the other hand, by making reference to the statement of objections filed on 20.04.2011, the documents annexed thereto, made submission in support of the view taken by the learned trial judge and sought upholding of the impugned order.
Keeping in view the rival contentions and the record, the point for consideration is
Whether the impugned order is perverse and illegal?
Copy of F.D.P. No. 2/2007 filed in the trial Court appears at Annexure-D to this writ petition. The statement of objections filed to the said petition appears at Annexure-E. The material assertions made in Annexure-D has been denied in the objections statement as at Annexure-E. That apart, both the parties have adduced the evidence as is evident from para 6 of the impugned order. Though the petitioners herein have disputed the relationship of plaintiff in O.S. No. 27/1972 with Chikkapla Muddappa and also alleged sale deed, the trial Court has proceeded under the impression that there is no dispute with regard to the transfer of property in favour of Chikkappala Muddapa and the petitioners being legal representatives of Chikkappala Muddappa as well as legal representatives of Chikkapla Chennabasamma. Without appreciating the evidence of PW 1, DW 1 and DW 2 and also documentary evidence which has been brought on record and marked as Exs. P1 to P19 and D1 to D6, trial Judge has held as follows:-
On considering the overall facts and circumstance of the case the petitioner has proved that they are the legal representatives of deceased Channabasamma and they have locus standi to file the petition.
Though Sri. Vigneshwar S. Shastri, learned counsel submitted that there is material evidence in support of findings arrived at by the learned trial judge that the petition is maintainable since plaintiff Chikkapla Chennabasamma sold the property in favour of Chikkapla Muddappa, who being no more, his family members have filed the petition, in my opinion the trial Court ought to have noticed the relevant evidence brought on record through PW 1, DW 1 and DW 2, appreciated the same and recorded findings, both on the questions of fact and law. There is failure to notice relevant evidence and also appreciate the evidence. The findings recorded are nothing but surmises and conjectures. The impugned order being perverse is unsustainable.
In the result, the writ petition is allowed and impugned order is quashed. F.D.P. No. 2/2007 stands restored for consideration by learned Civil Judge at Harapanahalli.
The trial Court is directed to decide the matter taking into consideration all the material contentions of both sides expeditiously and within a period of six months from the next hearing date of the case. In order to expedite the hearing and decision, the parties are directed to appear before the trial Court on 06.04.2013 and receive further orders. No costs.