Karnataka High Court
Sri Venkataramanappa vs T Ananthkumar on 18 September, 2014
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
RSA No.1870/2006
BETWEEN:
1. Sri Venkataramanappa
Aged about 70 years
2. Sri M.K. Krishnappa
Aged about 67 years
Both the appellants are the
Sons of Late Kappaiah
R/a K.R. Extension, Madhugiri
PIN 572 132. Tumkur District. ... Appellants.
(By Sri.G.S. Balagangadhar, Adv.)
AND :
1. T. Ananthkumar
Aged about 32 years
2. T. Gavithimmaiah
Aged about 25 years
Both the respondents
Claim as the sons of
Late Thimmarayappa
R/o. Old Pavagada Road
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R/o. Madhugiri Town
PIN 572 132. Tumkur District. ... Respondents.
(By Sri S.N. Bhat for R-1,
R-2 service held sufficient)
*******
This RSA is filed under Section 100 of CPC against
the judgment and decree dated 21.04.2006 passed in
R.A.No.154/1999 on the file of the Civil Judge (Sr.Dn.)
Madhugiri, allowing the appeal and setting aside the
judgment and decree dated 21.06.1999 passed in
O.S.No.280/1991 on the file of the Principal Civil Judge
(Jr.Dn.), Madhugiri.
This RSA coming on for orders this day, the Court
delivered the following: -
JUDGMENT
This is a defendants appeal assailing the judgment passed by the Principal Civil Judge (Sr.Dn.), Madhugiri on his file in R.A.No.154/1999 whereby reversed the judgment of the Trial Court.
2. For the sake of convenience, the parties will be referred to as per their ranking before the Trial Court.
3. The brief facts of the case are as follows: -3-
The plaintiffs who are the respondents before this Court filed a suit for partition against the appellants-
defendants for relief of partition of their 1/3rd share in the suit property by metes and bounds and for separate possession. Their case was, they are the children of late Thimmarayappa and defendant Nos.1 and 2 are the brothers of Thimmarayappa. The said Thimmarayappa and the defendants are the children of deceased Kappaiah. The suit property is inherited by all the three brothers on the death of their father Kappaiah.
Subsequent to his death there is no partition of the suit property. The parties are in joint possession and enjoyment of the suit property. The defendants are dealing with the suit property detrimental to their interest. Hence the suit.
4. The defendants contested the suit together and they disputed the very relationship of the plaintiffs to Thimmarayappa, though they admitted that -4- Thimmarayappa is their deceased elder brother. The defense set up was, Thimmarayappa relinquished all his rights in the suit property from the joint family under a deed dated 3.12.1955. The encumbrance of clearing the loan that the family had incurred was also taken up and the burden of clearing the loans fell on these defendants (who were minors then) and also the deceased father Kappaiah. All the movables and valuables were also got divided. Further the defendants contended that the suit is barred by limitation. There is no cause of action. Court fee paid is insufficient and bad for non-joinder of necessary parties etc.
5. On the basis of the pleadings, the Trial Court framed the issues as follows :-
"1. Whether the plaintiffs prove that the suit property is in joint possession of themselves and defendants ?
2. Whether the defendant prove that Thimmarayappa got released himself from the joint family under a written deed dated 3.12.1955 ?-5-
3. Whether the plaintiffs are entitled for partition of the suit schedule properties by metes and bounds and separate possession of their 1/3rd share ?
4. Whether the suit is barred by limitation ?
5. Whether the suit has not been properly valued and Court Fee paid is not correct ?
6. Whether the plaintiffs are entitled for future mesne profits and if so at what reate ?
7. What Order ?
ADDITIONAL ISSUES:
1. Whether plaintiffs prove that they are sons of Thimmarayappa ?
2. Whether suit is maintainable ?
3. Whether there is cause of action to file the suit ?
4. Whether suit is bad for non-joinder of necessary parties ?
5. Whether this Court has no pecuniary jurisdiction to try the suit ? "-6-
6. After a full fledged trial and after hearing both the parties the suit came to be dismissed. Aggrieved plaintiffs preferred the appeal before the Civil Judge (Sr.Dn.), Madhugiri, in R.A.No.154/1999. The plaintiffs on their application were allowed to adduce additional evidence in the lower Appellate Court. Accordingly, the plaintiffs got themselves examined further and produced four additional documents. After giving audience to both the parties, the First Appellate Court reversed the judgment of the Trial Court and decreed the suit of the plaintiffs by holding the entitlement for 1/3 share in the suit property.
7. Now the aggrieved defendants are before this Court assailing the judgment of the Lower Appellate Court. The appellants have also filed an application I.A.1/2012 under Order 41 Rule 27 of CPC seeking permission to produce additional documentary evidence i.e., the certified copy of the statement given by the -7- appellants before the Tahsildar, Madhugiri, in RRT/DIS/3/91-92. In the supporting affidavit the appellant Krishnappa has averred to the effect that before the Trial Court the defendants had produced the order copy passed by Tahsildar, Madhugiri of the RRT proceedings which was initiated for change of katha of the land in question and the same is marked as Ex.D.37. The respondent did not participate effectively in the said proceedings. These proceedings were subsequent to the filing of the Civil Suit. The Lower Appellate Court considered the said documents to up-
hold the relationship of the plaintiff with the deceased Thimmarayappa. The Trial Court had held that the statement given has not been produced. The said statement was mis-placed and this document being a part of the records of RRT/DIS/3/91-92/Part of Ex.D.37 it is not a surprise to the respondents. -8-
8. The appeal is contested by the 1st respondent only i.e., T. Anantha Kumar. The 2nd respondent T. Gavi Thimmaiah though prosecuted the case along with his brother / first respondent T. Anantha Kumar as plaintiff before the trial Court and also as appellant before the First Appellate Court now has remained ex-parte before this court. The 1st respondent has filed his objection statement to the application I.A.1/2012 contending that though the appellant was very much aware of the statement given by himself, has not produced the document now intended to be produced at the earliest. The explanation offered by him for late production of the document at this stage is unacceptable.
9. Sri G.S. Balagangadhar, learned counsel appearing for the appellants has taken me through the judgments recorded by both the Court below and among other things he points towards the fact that the before the Lower Appellate Court the defendants filed an -9- application seeking permission to adduce further evidence. The Lower Appellate Court without hearing the case on its merits directly allowed the application, received the additional evidence and thereafter without giving opportunity to the defendants/respondents to adduce rebuttal evidence, heard the matter on merits and decreed the suit of the plaintiff in the appeal. Same was against the established procedure. He further submits, not giving opportunity to adduce rebuttal evidence has resulted in miscarriage of justice. He further contended that the Lower Appellate Court while reversing the judgment of the trial Court did not touch upon various questions of law raised by the defendants with regard to non-joinder of parties, suit being barred by limitation, severance of status between Thimmarayappa and the family of plaintiff in the year 1956 itself etc. His grievance is that the Lower Appellate Court did not formulate the questions of law in the body of its judgment which it was going to
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adjudicate. According to him the conclusion reached by the Lower Appellate Court that deceased Thimmarayappa is the father of the plaintiffs is without the support of legal evidence. Solely on the ground that first respondent was shown as son of Thimmarayappa in the RRT proceedings, the lower Appellate Court has presumed that the defendants have admitted the case of the plaintiff by their conduct. But no where the defendants had admitted the said relationship. The statement given by the defendants before the Tahsildar will speak by itself that all the while they have disputed the relationship. In the suit, without there being any pleadings or evidence the Lower Appellate Court has come to the conclusion that the plaintiffs are illegitimate children of Thimmarayappa, which was not the case of either of the parties. Non-examination of the mother of the plaintiff or any of the close relative in accordance with the requirement of Section 50 of the Evidence Act, is fatal to the case of the plaintiffs. On the above
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counts, he prayed that the appeal may be allowed by dismissing the suit of the plaintiffs. In the alternative he prayed for remand of the case by setting aside the judgment of the trial Court with a direction to the Court below to receive the additional evidence now he is intending to produce which will have bearing on the merits of the case and thereafter dispose of the case afresh.
10. In reply, Sri S.N.Bhat, learned Counsel for the first respondent / plaintiff submits that the defendants actively participated in the proceedings before the Lower Appellate Court, but they did not seek for an opportunity for leading rebuttal evidence. The Lower Appellate Court had given opportunity to the plaintiff only to a limited extent for producing birth certificate, voter I.D and mortgage deed and license issued by local authority for a Fair Price Depot and all these documents unequivocally establish that Thimmarayappa is the
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father of the plaintiffs. The Lower Appellate Court could not have disposed of the appeal on its merits without receiving these documents. Without requesting the lower Appellate Court at the right time, for an opportunity to lead rebuttal evidence, now it is not open to the appellant to contend that the Lower Appellate Court ought to have disposed of the application filed under Order 41 Rule 27 of CPC along with the main matter and ought to have remanded the case to the Trial Court in the event of setting aside the judgment of the Trial Court. He further submits that the Lower Appellate Court though not on separate headings, has together touched upon all the contentions raised by the parties and also in respect of the findings recorded by the Trial Court on all issues. The document now intended to be produced by the appellants is of subsequent origin: RRT proceedings took place during the pendency of the suit. Hence it is of no consequence for adjudicating the case on merits. The Lower
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Appellate Court has appreciated the evidence in a proper perspective and decreed the suit. The defendants have not suggested any alternative theory to the case of the plaintiffs that they are sons of late Thimmarayappa, S/o.Kappaiah, wherefore the learned Counsel further submits that there is no merit in the contention of the appellants and the appeal is liable to be dismissed.
11. Having heard both the learned counsels the following points arise for my consideration :-
a. Whether the facts and circumstances warrant receiving of additional evidence now intended to be produced by the appellants?
b. Whether the judgment of the Lower Appellate Court calls for interference?
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12. In the light of the submission made at the Bar, I have gone through the judgment of the Lower Appellate Court in juxtaposition to the judgment of the Trial Court. As such it is not a concurrent finding recorded by the Lower Appellate Court. The Trial Court on completion of the pleadings had framed the above issues and on appreciation of the evidence had answered each of the issues separately as per the requirement of Order 20 Rule 5 of CPC. When the matter came up for consideration before the lower Appellate Court, it raised the following points :-
"a. Whether the plaintiffs / appellants proves that they are the real sons of the deceased Thimmarayappa?
b. whether the Judgment and decree under appeal are contrary to the Law and evidence on record?
c. Whether there are any grounds for this Court to interfere in the Judgment and decree under appeal?
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d. Whether the plaintiffs were entitled for the relief of partition and separate possession of 1/3rd share in the suit schedule property?
In the body of the Judgment, all these points were not dealt separately but were discussed at a stretch. The entire discussion revolves around the first point for consideration with regard to the disputed relationship of the plaintiffs to deceased Thimmarayappa. None of the other contentions raised by the respondents like lack pecuniary jurisdiction, insufficient court fee, severity of status on the basis of release deed dated 03.12.1955, allegedly executed of deceased Thimmarayappa where under the purview of the lower Appellate Court.
13. In Santhosh Hazare Vs. Purushotham Tiwari (2001) 3 SCC 179 it was held as under :-
"The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case
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is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court........ while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at ...."
14. The same principle was reiterated in the judgment of Madhukumar and Others Vs. Sangam and Others (2001) 4 SCC 756. Yet in another case, the Apex Court while emphasizing the duty of the first appellant under Order 41 Rule 31 of CPC in the case of Parimal Vs. Veena @ Bharti, 2011 (2) SCC 302, in para No.25 and 26 has held as under:
"25. Order 41 Rule 31 CPC provides for a procedure for deciding the appeal. The law
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requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, Sukhpal Singh v. Kalyan Singh, Santosh Hazari v. Purshottam Tiwari, Madhukar v. Sangram, G.Amalorpavam v. R.C. Diocese of Madurai, Shiv Kumar Sharma v. Santosh Kumari, and Gannmani Anasuya v. Parvatini Amarendra Chowdhary.)
26. The first appellate court should not disturb and interfere with the valuable rights of the parties which stood crystallised by the trial court's judgment without opening the whole case for rehearing both on question of facts and law. More so, the appellate court should not modify the decree of the trial court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate court would fall short of
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considerations expected from the first appellate court in view of the provisions of Order 41 Rule 31 CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh v. H.V. Sreenivasa Murthy.)"
15. It is the settled law that in view of mandatory provisions of Order 41 Rule 31 of the CPC if the First Appellate Court were to reverse the judgment of the Trial Court, a primary duty is cast on it to consider the reasons assigned by the Trial Court to it's findings on the issues and thereafter those reasons must also be reversed. But in the case on hand, the First Appellate Court while finding merit in the case of the plaintiffs did not point how the finding reached by the Trial Court was unsustainable. It is the trites of law that when two views are possible on a given set of facts the appellate court cannot substitute the other view to that of the view / finding of the Trial Court. The impugned
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judgment fails to comply with the mandatory provision of Order 41 Rule 33, which is extracted as under:
"Order XLI Rule 33: Power of Court of Appeal: The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:
[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is
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preferred has omitted or refused to make such order.]
16. With regard to Order 41 Rule 31 of CPC, this Court in the case of G. Basavaraj Vs. H.M.Shivappa Patel, 2012 (3) KCCR and 1945, at para No.15, has held as under:
"15. Insofar as the Judgment of the Appellate Court reversing the Judgment of the Trial Court cannot be very cryptic. Indeed, the Appellate Court has jurisdiction to reverse or affirm the findings of the Trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The Judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record its findings supported by reasons, on all the issues arising along with the contentions, which are putforth. However, expression of general agreement with the findings recorded in the judgment under appeal should not be a
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device or camouflage adopted by the Appellate Court for shirking the duty cast on it. While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the Trial Judge. As a matter of law if the appraisal of the evidence by the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact. But while reversing a finding of fact the Appellate Court must assign its own reasons for arriving at a different finding. An additional obligation has been cast on the Appellate Court by the scheme of the present Section 100 substituted in the Code. The First Appellate Court
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continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High court in second appeal. The First Appellate court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High court in second appeal because the jurisdiction of High Court has now ceased to be available to correct the errors of law or the erroneous findings of the First Appellate Court even on questions of law unless such question of law be a substantial one".
17. That apart the order sheet of the Lower Appellate Court evinces that after receiving the Addl. Evidence without giving opportunity to the respondents / defendants the case was heard on merits and disposed off, which according to the appellants herein was in violation of the principles of natural justice resulting in miscarriage of justice. On that count also the procedure adopted by the Lower Appellate Court was vitiated.
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18. There is another ground to interfere with the impugned judgment. The defendants themselves had filed certified copy of the order passed by the Tahsildar in RRT proceedings in which the plaintiffs were arrayed as the sons of Thimmarayappa in the cause-title. This document according to plaintiffs fortifies their case. But it did not appeal to the Trial Court as a proof of admission by the defendants about their relationship with deceased Thimmarayappa. However, the lower Appellate Court appreciating the very same document held that the defendants admitted the relationship of the plaintiff with the deceased Thimmarayappa. Now the appellants have filed I.A.I/2012 before this Court seeking permission to produce the certified copy of the statement given by the 1st appellant before the Tahsildar in the said RRT proceedings. It is the submission of the learned counsel for the appellants that the RRT proceedings was initiated since the plaintiffs obstructed for the mutation of the suit schedule property in their
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favour. The document now produced pertaining the said RRT proceedings would evince that there was no such admission by them as presumed by the Lower Appellate Court. He further submits that this document now he intends to produce has high probative value in deciding the merits of the case.
19. I find force in the prayer of the appellant in seeking permission to adduce additional evidence. It is not only that the appellants were deprived of adducing rebuttal evidence counter to the additional evidence led by plaintiffs by the Lower Appellate Court but were rejected opportunity to produce the best possible evidence available at their disposal. Hence in my considered opinion it is a fit case which requires to be remanded after setting aside the impugned judgment so that the Lower Appellate Court after receiving the additional evidence can dispose of the case by strictly adhering to the mandatory provisions of Order 41 Rule
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31. If only the First Appellate Court discharges its obligation mandated by the statute, the substantial question of law framed for consideration while admitting this second appeal can be considered in the second appeal thereafter.
20. Accordingly, the appeal is allowed. The impugned judgment dated 21.4.2006 passed by the Civil Judge, (Sr. Dn.) Madhugiri, in R.A.No.154/1999 is set aside and the matter is remanded to the First Appellate Court along with the application I.A.1/2012 filed by the appellants. The Lower Appellate Court is directed to afford an opportunity to the defendants to adduce further evidence only for the purpose of producing the documentary evidence which is filed along with I.A.I/2012 and also in respect of the statement given in RRT proceedings on 20.04.1992. Thereafter the plaintiffs shall be given an opportunity to adduce rebuttal evidence. After giving audience to both the
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parties the case shall be disposed of, afresh in the light of the observations made in the body of this order. Entire proceedings shall be concluded within three months from the date of appearance of both the parties. Both the parties shall appear before the Lower Appellate Court on 13.10.2014. Either the order passed in this second appeal or the Judgment and Decree passed in R.A.No.154/1999, shall not influence the lower Appellate Court while adjudicating the appeal afresh. All contentions urged by both the parties are kept open.
Registry to transmit the records forthwith.
Sd/-
JUDGE NG*