BORE GOWDA Vs. B NAGARAJU

JUDGEMENT

(1.) The appellants before this Court were defendants 1 and 2 in O. S. 60 of 1962 on the file of the Munsiff, Mandya. Respondent No. 1 who was the plaintiff, filed a suit for setting aside the decree passed in O. S. No. 3 of 1958 on the file of the same Court which was subsequently confirmed in appeal, R. A. No 77 of 1959, by the learned Civil Judge, Mandya. The first suit O. S. 3/58 had been filed by respondent-2, the second plaintiff as guardian of plaintiff-1, for partition and possession of the one-third share in the joint family properties. The plaintiff's case is that he is the son of Byregowda by his third wife. Byregowda and the appellants 1 and 2 in the first suit, were brothers and members of a joint family. For the sake of convenience, in this appeal, the parties will be referred to by their designation in O. S. 3 of 1958. The suit O. S. 3/58 filled on behalf of the plaintiff by his mother plaintiff-2 as his guardian was dismissed. The appeal filed against this order (R. A. 77/59) was also dismissed on 17-3-1960. The second suit, O. S. 60/62 was filed on 17-1-1962. In O. S. 60/62, the plaintiff prayed that as there was gross negligence on the part of his mother as guardian in conducting suit O. S. 3/58, the decree was not binding on him and should be set aside. The trial court held that there was no gross negligence on the part of plaintiff-2 in conducting the suit, and dismissed the second suit. In the appeal filed by the plaintiff, the learned Civil Judge, Mandya, set aside the order of the trial court in O. S. 60/62. The learned Civil Judge also set aside the decree in O. S. 3 of 1958 and the appellate order R. A. 77 of 1959 passed by the same court. He directed the learned Munsiff, Mandya, to restore the suit, O. S. 3/58, to his file and frame an additional issue throwing the burden on the defendants to prove non-access and dispose of the case according to law. It is this order passed by the learned Civil Judge, Mandya, that is being challenged in this second appeal

(2.) Sri Tarakaram, learned counsel appearing on behalf of the appellants (defendants 1 and 2) has contended that the learned Judge erred in holding that there was gross negligence on the part of the guardian of the plaintiff which justified the setting aside of the decree passed in O. S. 3/1958. He contends that the learned Civil Judge has mistaken the onus of proof with the burden of proof. He has practically reviewed the judgments in the previous case including that passed by his predecessor, i.e., the learned Civil Judge in R. A.77/57, which he is not entitled to do. Sri Tarakaram also argues that the learned Civil Judge failed to consider the material evidence in the case such as exhibit D-2, which has resulted in a wrong decision. The learned counsel contends that in this case, no question of application of Section 112 of the evidence of Indian Evidence Act arises as this was not a case where the defendants admitted the marriage between plaintiff-2 and Byregowda. The defendants denied that plaintiff-2 was the wife of Byregowda and as such the question of the application of Section 112 of the Evidence Act did not arise in this case and the learned Civil Judge was wrong in thinking that there was gross negligence on the part of the guardian in not getting an issue framed in the case on this question.

(3.) Sri Javali, learned counsel appearing on behalf of the respondents, contends that there was negligence in the conduct of the case right from the initial stage itself. The first issue should have been: