IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5734 OF 2008

(ARISING OUT OF SLP(C) NO.5462 OF 2008)

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

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

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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

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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

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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.

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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

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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

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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

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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.   

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(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 )

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