Karnataka High Court
Rajeev Gandhi vs Bommalingaiah on 7 February, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 7TH DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.S.A.330/2009 C/W MSA.393/2010
IN MSA.330/2009:
BETWEEN:
1. RAJEEV GANDHI,
S/O MAHESH GANDHI,
AGED ABOUT 32 YEARS.
OCC: BUSINESS.
R/O NO.5, ADARSH NAGAR,
HUBLI-580 032.
DIST: DHARWAD.
2. PAYAL GANDHI,D/O JYOTHIN GANDHI,
AGED ABOUT 31 YEARS.
OCC: BUSINESS.
R/O NO.5, ADARSH NAGAR,
HUBLI-580 032. DIST: DHARWAD.
BOTH REP. BY THEIR PA HOLDER:
SH.SHARANAPPA,
S/O ADIVEPPA BADAWADAGI,
AGED ABOUT 76 YEARS.
R/O HEGGERI COLONY,
NEAR SHIDDHARUDHAMATH,
HUBLI-580 024.
DIST: DHARWAD. ... APPELLANTS
(BY SRI.V.M. SHEELVANTH, ADV.)
2
AND
1. BOMMALINGAIAH
S/O VEERABHADRAIAH,
AGED ABOUT 50 YEARS.
OCC: AGRICULTURE.
R/O ILAKAL-587 125.
TALUK: HUNGUND.
DIST: BAGALKOT.
2. B. VISHWANATH,
S/O P.S.VENKANNASHETTY,
AGED ABOUT 56 YEARS.
OCC: AGRICULTURE.
R/O ILAKAL-587 125.
TALUK: HUNGUND.
DIST: BAGALKOT.
3. BADRINATH,
S/O VASUDEV KANDOKUR,
AGED ABOUT 41 YEARS.
OCC: AGRICULTURE.
R/O ILAKAL-587 125.
TALUK: HUNGUND.
DIST: BAGALKOT.
4. SHARANAPPA,
S/O CHANNABASAPPA LEKKIHAL,
AGED ABOUT 65 YEARS.
OCC: AGRICULTURE.
R/O PURTAGERI VILLAGE,
TQ: KUSHTAGI-587 189.
DIST: KOPPAL. ... RESPONDENTS
(By SRI. B. SHARANA BASAWA, ADV. FOR C/R.1 TO R.3,
R.4 SERVED & UNREPTD.)
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THIS MSA FILED U/SEC. 104 R/W. ORDER 43 RULE
1(u) OF CPC, AGAINST THE JUDGEMENT & DECREE
DTD:21-11-2009 PASSED IN R.A.NO:58/2009 ON THE
FILE OF THE FAST TRACK COURT-II, KOPPAL, ALLOWING
THE APPEAL FILED AGAINST THE JUDGEMENT AND
DECREE DTD:25-04-2009 PASSED IN O.S.NO.12/2006, ON
THE FILE OF THE CIVIL JUDGE(SR.DN), KUSHTAGI,
DECREEING THE SUIT FILED FOR DECLARATION AND
CONSEQUENTIAL RELIEF OF INJUNCTION.
IN MSA.393/2010:
1. BOMMALINGAIAH
S/O VEERABHADRAIAH KATAPURMATH,
AGED : ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/O ILKAL, TQ: HUNAGUND,
DIST: BAGALKOT.
2. B VISHWANATH
S/O P.S.VENKANNASHETTY,
AGED ABOUT 57 YEARS,
OCC: AGRICULTURE,
R/O ILKAL
TQ: HUNAGUND,
DIST: BAGALKOT.
3. BADRINATH S/O VASUDEV KANDAKUR,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE, R/O ILKAL,
TQ: HUNAGUND,
DIST: BAGALKOT. ... APPELLANTS
(BY SRI.B. SHARANABASAWA, ADV.)
4
AND:
1. RAJEEV S/O MAHESH GANDHI,
AGED ABOUT 33 YEARS,
OCC: BUSINESS,
R/O NO.5, ADARSH NAGAR,
HUBLI
TQ: HUBLI, DIST: DHARWAD.
2. PAYAL D/O JYOTIN GANDHI,
AGED ABOUT 32 YEARS,
OCC: BUSINESS, R/O NO.5,
ADARSH NAGAR, HUBLI
TQ: HUBLI,
DIST : DHARWAD.
3. SHARANAPPA,
S/O CHANNABASAPPA LEKKIHAL,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE.
R/O PURTAGERI VILLAGE,
TQ: KUSHTAGI,
DIST: KOPPAL. ... RESPONDENTS
(By Sri A. P. MURARI, ADV. FOR
SRI.A.A. MAGADUM & MS.ARCHANA A. MAGADUM,
ADVS.FOR R.1 AND R.2.
R.3 SERVED & UNREPTD.)
******
THIS MSA IS FILED U/O.43 RULE 1(u) OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 21-11-
2009 PASSED IN R.A.NO:58/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-II, KOPPAL,
ALLOWING THE APPEAL BY SETTING ASIDE THE
JUDGEMENT AND DECREE DTD:25-04-2009 PASSED IN
O.S.NO.12/2006, ON THE FILE OF THE CIVIL
JUDGE(SR.DN) KUSHTAGI, DECREEING THE SUIT FILED
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FOR DECLARATION AND CONSEQUENTIAL RELIEF OF
INJUNCTION.
THESE MSAs COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are posted for admission, with the consent of learned Counsel on both sides they are heard finally.
2. MSA.330/2009 and MSA.393/2010 are filed by the parties to R.A.58/2009, both assailing the order of remand made by the Fast Track Court-II at Koppal (I Appellate Court).
For the sake of convenience, the parties shall be referred to in terms of their status before the Trial Court.
3. The appellants in MSA.330/09 who are the plaintiffs in O.S.12/2006 filed the suit seeking the relief of declaration of title and consequential relief of permanent injunction in respect of the land bearing Sy.No.4/1 measuring 6 acres 5 guntas at Pudtageri village, Kushtagi 6 Taluk, Koppal District. According to the plaintiffs, they had purchased the said land from one Sharanappa, defendant-3 for a valuable consideration by a registered sale deed dated 15.7.1998. They claim to be bonafide purchasers and that they were put in possession of the land six months prior to the registered sale deed under an oral agreement. The plaintiffs before purchasing the suit schedule property had verified all documents including the nil-Encumbrance Certificate issued for the period 1.4.1983 to 22.11.1997 from the Office of the Sub-Registrar at Kushtagi. On purchase of the said land, the plaintiffs moved an application for mutating their names in the records of rights. At that time they were surprised when they received a notice from the Tahasildar, Kushtagi stating that defendants 1 and 2 had filed objections for entering the names of the plaintiffs.
4. According to the plaintiffs, the claim made by defendant Nos.1 and 2 was contrary to the order passed in W.P.2857/1993 dated 28.1.1993. They also stated that 7 defendant No.3- their vendor, had purchased 6 acres 5 guntas out of 23 acres 5 guntas from one Rudragouda Kolli by a registered sale deed having certain boundaries. That their vendor was in possession of the said extent of land. Defendant No.3 after purchasing the property had filed an application for survey and demarcation of his land on 16.12.1991 . After conducting the spot inspection, the ADLR, Lingasugur, had passed an order. The ADLR in his order dated 31.12.1991 had confirmed the measurements and thereafter had issued Hissa-Phodi numbers, i.e. Sy.Nos.4/1 and 4/2. Defendant No.3 had challenged the order of ADLR in appeal before the DDLR. But the order of the ADLR had been confirmed. The said orders of the ADLR and DDLR have also been confirmed by the Karnataka Appellate Tribunal in Rev.No.139/1992 on 18.1.1992. The plaintiffs also pleaded that the sale deeds relied upon by defendant Nos.1 and 2 are bogus and concocted and that they had no right, title and interest in respect of the lands in question. That the boundaries in the said sale deeds did not tally with the boundaries in the 8 sale deed of vendor of defendant No.3. Therefore, they sought for the relief of declaration of title and permanent injunction against the plaintiffs.
5. On receipt of the suit summons and court notices, defendant Nos.1 and 2 appeared through their general power of attorney holder and filed their written statement denying the averments made by the plaintiffs. They stated that they are the absolute owners in possession of the land and that they had subsequently sold the said land to defendant No.4. They denied that defendant no.3 was ever in possession of the land having the boundaries as stated in their sale deed. It was their contention that they had purchased the suit schedule land in the year 1993 and they were enjoying possession of the said land and that defendant No.3 had no right, title or interest to alienate the said land to the plaintiffs. Therefore, they sought for dismissal of the suit.
6. Defendant No.3, the vendor of the plaintiffs has in his written statement admitted that he had 9 executed the registered sale deed in favour of the plaintiffs and that they are the absolute owners in possession of the said land. He contended that defendant Nos.1 and 2 in collusion with the revenue officials had got their names entered in the record of rights. That the boundaries in the sale deed executed in favour of the plaintiffs tallied with the boundaries in the sale deed dated 30.5.1969 under which he had purchased the said land and that the said boundaries were confirmed by the Karnataka Appellate Tribunal in Rev.No.139/1992 by order dated 18.1.1992.
7. Defendant No.4 who has also filed a written statement has stated that he is the owner in possession of the land and that the same was purchased by him through defendant Nos.1 and 2 for a valuable consideration of Rs.1,85,000/- on 4.8.2004 under a registered sale deed. That, on verification of the documents standing in the name of defendant Nos.1 and 2 the said land was purchased and that the plaintiffs have no right, title or interest in respect of the suit land. That, defendant no.4 is 10 bonafide purchaser who is the absolute owner and therefore he sought for dismissal of the suit.
8. On the basis of the rival pleadings, the Trial Court framed the following issues for its consideration:
"1) Whether the plaintiffs prove that they are the absolute owners in possession of the suit schedule property as on the date of the suit by virtue of sale deed executed by defendant No.3?
2) Whether the plaintiffs prove that the defendant No.1 and 2 have misled the revenue authorities and obstructed to the plaintiffs lawful possession and enjoyment of the suit properties illegally?
3) Whether the defendant No.1 and 2 prove that the defendant No.3 had no locus standi to execute the sale deed in favour of the plaintiff and the suit is void abinitio?
4) Whether the plaintiffs and the defendant No.3 prove that the defendant No.1 and 2 collusively managed to mutate their names to the suit properties?
5) What relief or order the parties are entitled?"
9. In support of their case, the plaintiffs let-in the evidence of PW.1- power of attorney holder and another witness as PW.2. They produced 58 documents which 11 were marked as Ex.P.1 to P.58. While the defendants let- in evidence of two witnesses and they produced ten documents marked as Ex.D.1 to D.10.
10. On the basis of the said evidence, the trial Court answered issue Nos.1, 2 and 4 in the affirmative and issue No.3 in the negative and decreed the suit of the plaintiffs by holding that they are the owners in possession of the suit land and also injuncted defendant Nos.1, 2 and 4 or any person claiming through them from interfering with the lawful possession and enjoyment of the suit land by the plaintiffs.
11. Being aggrieved by the said judgment and decree dated 25.4.2009, defendant Nos.1, 2 and 4 filed R.A.No.58/2009 before the I Appellate Court. During the course of arguments defendant Nos.1, 2 and 4 also filed I.A.2 under Order XLI Rule 27 CPC in order to produce additional evidence which is in the form of an Encumbrance Certificate which has been issued by the Sub-Registrar at Kushtagi on 30.5.2009. The I Appellate 12 Court on hearing both sides framed the following points for its consideration:
"Point No.1: Whether the appellants prove that the judgment and decree passed by the Trial Court is perverse, capricious, illegal and contrary to the provisions to law and facts? If so the same is liable to be interfered with?
Point No.2: Whether the appellants are entitled to produce the documents as per I.A.3?
Point No.3: What Order?"
The I Appellate Court answered both points in the affirmative and by allowing the application filed under Order XLI Rule 27 CPC set-aside the judgment and decree of the Trial Court and remanded the matter to the Trial Court to dispose it of afresh by taking on record the additional evidence.
12. Being aggrieved by the said order of remand, the plaintiffs as well as defendant Nos.1, 2 and 4 have filed these Miscellaneous Second Appeals.
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13. I have heard the learned Counsel for the appellants and learned Counsel for the respondents in both the appeals.
14. It is contended on behalf of the plaintiff- appellants that the I Appellate Court was not right in allowing the application filed under Order XLI Rule 27 CPC by way of additional evidence. What was sought to be produced by defendant Nos.1, 2 and 4 was an encumbrance certificate issued by the Office of the Sub- Registrar, Kushtagi after the disposal of the suit and during the pendency of the appeal. The condition for production of additional evidence as stated in Rule 27 of Order XLI CPC have not been met by the applicants and therefore, the I Appellate Court ought not to have allowed the said application. Elaborating the said contention it is stated that the said document would in any way further the case of defendant Nos.1, 2 and 4 having regard to the documents of title produced by the parties on which basis alone the trial Court had rightly decreed the suit of the 14 plaintiffs. It was therefore, contended that the order of remand based on the fact that the application under Order XLI Rule 27 CPC is incorrect and therefore, the said order be set aside and the application filed under Order XLI Rule 27 CPC be accordingly dismissed. In support of this contention certain case law have been cited.
15. Alternatively, it was contended that if this Court is to come to a conclusion that the application filed under Order XLI Rule 27 CPC was necessary to consider the case of the parties completely then in that case, the I Appellate Court ought to have considered the matter by re-appreciating the evidence on record and also by taking into consideration the additional evidence and ought not to have remanded the matter.
16. The appellants in MSA.393/2010 who are respondents in MSA. No.330/09 who have also assailed the order of remand have contended that the I appellate Court on allowing the application filed under Order XLI Rule 27 CPC ought to have considered the 15 matter by re-appreciating the evidence on record in the light of the additional evidence as to whether plaintiffs were entitled to the reliefs they had sought. It is contended that the remand of the matter to the Trial Court for the purpose of taking on record the Encumbrance Certificate was unnecessary and therefore, the order of remand has to be set-aside.
Therefore, at this stage it is noted that both sides are aggrieved by the order of remand. To that extent, the consensus is that the I Appellate Court ought to have decided the matter by re-appreciating the evidence on record. However, the point to be considered is, whether the I Appellate Court had to reconsider the matter by taking into consideration the Encumbrance Certificate filed by the Defendant Nos.1, 2 and 4 in R.A.58/2009 or dehors the said document. To that extent only this appeal would have to be considered.
17. From the material on record, it is not in dispute that the plaintiffs have relied upon Ex.P.2 which is a sale 16 deed dated 15.7.1998 to contend that they had purchased the suit schedule property from defendant No.3. On the other hand, defendant Nos.1, 2 as also defendant No.4 have relied upon Ex.D.1 which is a registered sale deed dated 7.5.1993 to contend that defendant Nos.1 and 2 had purchased the suit land from defendant No.3. Defendant No.3 who did not let in any evidence before the Trial Court is therefore, the executant of both the sale deeds which are registered documents. The extent of the land purchased by the plaintiffs as also defendant Nos.1, 2 and defendant No.4 subsequently from defendant Nos.1 and 2 is also 6.5 acres. However, there is a dispute with regard to the boundaries as stated in the sale deeds. In this context, the contention of the learned Counsel for the appellant in MSA.330/09 on behalf of the plaintiffs is that the boundaries in Ex.P.2 sale deed tallies with the boundaries in the certified copy of the decree in O.S.59/1972 (Ex.P.47) which was the suit filed by defendant No.3 against his vendor and therefore the said evidence clearly establishes that the suit land purchased 17 by the plaintiffs from defendant No.3 is not the land which has been purchased by the defendant Nos.1 and 2 from defendant No.3.
18. In order to counter the said submission, learned Counsel for appellant in MSA.393/2010 i.e. on behalf of defendant Nos.1, 2 and 4 has relied upon the additional evidence produced before the I Appellate Court in the form of the Encumbrance Certificate to contend that the suit land was purchased by defendant Nos.1 and 2 as on 7.5.1993, much prior to the sale deed relied on by the plaintiff which is dated 15.7.1998. The additional evidence in the form of Encumbrance Certificate would therefore clearly establish that what had been purchased by defendant Nos.1 and 2 could not have been the very same land which could have been purchased by the plaintiffs. Therefore, it is contended that the additional evidence was filed for the complete adjudication of the suit.
19. I have perused the applications filed under Order XLI Rule 27 by defendants Nos.1, 2 and 4 before the 18 first appellate Court, along with the certified copy of the Encumbrance Certificate issued by the Sub-Registrar, Kushtagi. No doubt, the said document is issued after the disposal of the suit and during the pendency of the appeal before the first appellate Court. On a perusal of the said document and when the same is juxtaposed with Ex.P.3, which is the Encumbrance Certificate relied upon by the plaintiffs, it is noted that Ex.P.3 deals with Sy.No.4/1 whereas, the Encumbrance Certificate produced by defendant Nos.1, 2 and 4 deals with Sy.No.4/B as well as Sy.No.4/1. Infact, there is a reference to the sale made on 07/05/1993 as well as the sale made on 11/05/1998 by defendant No.3. Without making any inference with regard to two documents produced by the parties, keeping in mind the question as to whether the first appellate Court in the light of these documents was right in remanding the matter to the trial Court, the consideration would have to be made in these appeals. As noted earlier, voluminous documents have been produced by both sides in order to prove their respective costs. On appreciation of the 19 evidence on record, the trial Court thought it fit to decree the suit. The first appellate Court however has noted that defendants Nos.1 and 2 had not contested the case by adducing evidence, they had only filed the written statement and they had not substantiated that they are the purchasers of the suit property from defendant No.3 in the year 1993; that defendant No.3 was supporting the case of the plaintiffs. However, while stating these facts, the first appellate Court thought it fit to allow the additional evidence despite holding that the Encumbrance Certificate is not a document of title to the parties. The reasoning of the first appellate Court appears to be strange. If it had thought that the additional evidence by way of Encumbrance Certificate would not alter the case of the respective parties, then it ought not to have allowed the said application itself. But what seems to have been in the mind of the first appellate Court was to remand the matter and then seek a justification for the said remand. It is in that context that the application under Order XLI Rule 27 has been allowed.
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20. Since both the parties are aggrieved by the order of remand and having regard to the voluminous evidence on record, the consideration of the said evidence, which is already on record in the light of the additional evidence, which was produced by the defendant Nos.1, 2 and 4 before the first appellate Court further enable the first appellate Court to come to some clearer appreciation of the evidence on record. Therefore, since the first appellate Court has exercised its discretion to allow the application filed under Order XLI Rule 27, I am of the view that it would not be proper to interfere with the said discretion in this appeal. Therefore, that portion of the order of the first appellate Court permitting the additional evidence by way of the Encumbrance Certificate which has been produced by defendant Nos.1, 2 and 4 is left undisturbed.
21. Having taken the additional evidence on record, I am of the view that the first appellate Court ought to have re- appreciated the material on record and then come to a conclusion as to whether the plaintiffs were entitled to the reliefs that they had sought. As stated supra, the inclination to remand the matter seems to have preceded the allowing of the application under Order XLI Rule 27 CPC whereas, it has to be in 21 the reverse. Therefore, the order of the remand to the trial Court is set aside. The first appellate Court is directed to re- appreciate the evidence on record and also the additional evidence produced by defendant Nos.1, 2 and 4, before the first appellate Court in the light of the reliefs sought by the plaintiffs and come to an independent conclusion, without being influenced by the earlier order of the first appellate Court. In the result, both the appeals are disposed of in the above said terms.
Parties to bear their respective costs.
Since the parties are represented by their respective counsel, they are directed to appear before the first appellate Court on 14-03-2013.
Office is directed to transmit the records to the first appellate Court forthwith.
SD/-
JUDGE Sub/mvs.