Karnataka High Court
Bharmanna S/O. Appayya Gangai vs Appayya @ Appasaheb S/O. Surendra ... on 10 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 01st DAY OF SEPTEMBER 2016
BEFORE
THE HON 'BLE MR. JUSTICE ARAVIND KUMAR
MISCELLANEOUS SECOND APPEAL No.100080 OF 2014 [RO]
C/w.
MISCELLANEOUS SECOND APPEAL No.100079 OF 2014 [RO]
IN MSA No.100080/2014:
BETWEEN:
1. BHARMANNA S/O. APPAYYA GANGAI
AGE: 59 YEARS,
OCC: ADVOCATE & AGRICULTURE
R/O. MAJGAON, TQ & DIST: BELGAUM
2. HUKUMCHAND S/O. APPAYYA GANGAI
AGE: 57 YEARS, OCC: AGRICULTURE
R/O. MAJGAON, TQ: & DIST: BELGAUM
3. ARVIND S/O. APPAYYA GANGAI
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. MAJGAON, TQ: & DIST: BELGAUM
4. MAHADEV NAGAPPA MAJUKAR
SINCE DECEASED BY HIS LRS
VIMAL W/O. MAHADEV MAJUKAR
AGE: 75 YEARS, OCC: HOUSEHOLD WORK
R/O. PLOT NO. 9, MAJUKAR COMPOUND,
UDYAMBAG, BELGAUM
5. PRAKASH S/O. MAHADEV MAJUKAR
AGE: 50 YEARS, OCC: AGRICULTURE
R/O. H NO. 388/A, MAHARASHI ROAD,
:2:
TILAKWADI, BELGAUM
6. SUNIL S/O. MAHADEV MAJUKAR
AGE: 48 YEARS, OCC: AGRICULTURE
R/O. H NO. 388/A MAHARSHI ROAD
TILAKWADI, BELGAUM
7. SANGEETA W/O. MILIND MAJUKAR
AGE: 45 YEARS, OCC: HOUSEHOLD WORK
R/O. 3RD CROSS, SAMRUDDHI COLONY,
ANAND NAGAR, VADAGAON, BELGAUM
8. KUM. AKASH S/O. MILIND MAJUKAR
AGE: 12 YEARS, OCC: STUDENT
MINOR, R/BY HIS MOTHER
SANGEETA W/O. MILIND MAJUKAR
AGE: 45 YEARS OCC: HOUSEHOLD WORK
R/O. 3RD CROSS, SAMRUDDHI COLONY,
ANAND NAGAR, VADAGAON, BELGAUM
9. KUM. SNEHA D/O. MILIND MAJUKAR
AGE: 08 YEARS, OCC: STUDENT
MINOR, R/BY HIS MOTHER
SANGEETA W/O. MILIND MAJUKAR AGE: 45 YEARS
OCC: HOUSEHOLD WORK
R/O. 3RD CROSS, SAMRUDDHI COLONY,
ANAND NAGAR, VADAGAON, BELGAUM
... APPELLANTS
(By Sri. SANJAY S KATAGERI ADV.)
AND:
1. APPAYYA @ APPASAHEB S/O. SURENDRA HALAGI
AGE: 64 YEARS, OCC: AGRICULTURE
R/O. H NO. 209/13, LAXMI GALLI
MAJGAON, BELGAUM
2. SUDHIR S/O. SURENDRA HALAGI
AGE: 40 YEARS, OCC: AGRICULTURE
R/O. H NO. 209/13, LAXMI GALLI
:3:
MAJGAON, BELGAUM
3. JAYAWATI W/O. SURENDRA HALAGI
AGE: 71 YEARS, OCC: HOUSEHOLD WORK
R/O. H NO. 209/13, LAXMI GALLI
MAJGAON, BELGAUM
4. SUSHILA CALLING HERSELF
AS WIFE SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MAJAGAON, TQ: & DIST: BELGAUM
5. SUHASINI W/O. APPASAHEB BHOAJANNAWAR
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. MAJAGAON, TQ: & DIST: BELGAUM
6. YALLAPPA S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
7. VIJAY S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
8. ASHOK S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
9. RAJASHREE W/O. SURENDRA HALAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. VAKARBAG SANGLI, MAHARASHTRA
10. SHIVAJI S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
R/O. GOODSHED ROAD, BELGAUM
11. MARUTI S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
:4:
R/O. GOODSHED ROAD, BELGAUM
12. RAMA S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
R/O. GOODSHED ROAD,
BELGAUM
... RESPONDENTS
(By Sri RAVI G SABHAHIT ADV. FOR R1 & R3;
R2, 5 TO 12 ARE SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE
1(u) OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 30.04.2014 PASSED IN RA
No.179/2009 ON THE FILE OF THE V ADDL.
DISTRICT AND SESSIONS JUDGE, BELGAVI,
ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 25.04.2009
PASSED IN FDP No.2/1999 ON THE FILE OF THE
PRL. CIVIL JUDGE, (SR.DN.), BELGAUM, FDP IS
STANDS CLOSED.
IN MSA No.100079/2014:
BETWEEN:
1. BHARMANNA S/O. APPAYYA GANGAI
AGE: 59 YEARS, OCC: ADVOCATE & AGRICULTURE
R/O. MAJGAON, TQ & DIST: BELGAUM
2. HUKUMCHAND S/O. APPAYYA GANGAI
AGE: 57 YEARS, OCC: AGRICULTURE
R/O. MAJGAON, TQ: & DIST: BELGAUM
3. ARVIND S/O. APPAYYA GANGAI
AGE: 52 YEARS, OCC: AGRICULTURE
R/O. MAJGAON, TQ: & DIST: BELGAUM
... APPELLANTS
(By Sri. SANJAY S KATAGERI ADV.)
:5:
AND:
1. APPAYYA @ APPASAHEB S/O. SURENDRA HALAGI
AGE: 64 YEARS, OCC: AGRICULTURE
R/O. H NO. 209/13, LAXMI GALLI
MAJGAON, BELGAUM
2. SUDHIR S/O. SURENDRA HALAGI
AGE: 40 YEARS, OCC: AGRICULTURE
R/O. H NO. 209/13, LAXMI GALLI
MAJGAON, BELGAUM
3. JAYAWATI W/O. SURENDRA HALAGI
AGE: 71 YEARS, OCC: HOUSEHOLD WORK
R/O. H NO. 209/13, LAXMI GALLI
MAJGAON, BELGAUM
4. SUHASINI W/O. APPASAHEB BHOJANNAVAR
AGE: 63 YEARS, OCC: HOUSEHOLD WORK
R/O. NAVI GALLI, SHAHAPUR
BELGAUM
5. YALLAPPA S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
6. VIJAY S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
7. ASHOK S/O. SURENDRA HALAGI
AGE: MAJOR, OCC: AGRICULTURE
R/O. MUSLIM GALLI, MAJGAON
BELGAUM
8. RAJASHREE W/O. SURENDRA HALAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. VAKARBAG SANGLI, MAHARASHTRA
:6:
9. SHIVAJI S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
R/O. GOODSHED ROAD, BELGAUM
10. MARUTI S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
R/O. GOODSHED ROAD, BELGAUM
11. RAMA S/O. TAMMANNA CHOUGULE
AGE: MAJOR, OCC: AGRICULTURE
R/O. GOODSHED ROAD, BELGAUM
... RESPONDENTS
(By Sri. RAVI G SABHAHIT ADV. FOR R2,R3)
R1, 4-7, 9-11 ARE SERVED)
THIS MSA IS FILED UNDER ORDER 43 RULE
1(u) OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 30.04.2014 PASSED IN RA
No.168/2009 ON THE FILE OF THE V ADDL.
DISTRICT AND SESSIONS JUDGE, BELGAVI,
ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 25.04.2009
PASSED IN FDP No.2/1999 ON THE FILE OF THE
PRL. CIVIL JUDGE, (SR.DN.), BELGAUM, FDP IS
STANDS CLOSED.
THESE APPEALS COMING ON FOR ORDERS
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals have been preferred against the judgment and decree passed by the first appellate court in Regular Appeal Nos.168 of 2009 and 179 of 2009 dated 30 t h April 2014, :7: whereunder lower appellate court has set aside the order passed by the Principal Civil Judge (Sr.Dn.) and CJM, Belagavi, on 25 t h April, 2009, in Final Decree Proceedings No.2 of 1999 whereunder it had accepted the report of Court Commissioner dated 05 t h August 2008 and closed the final decree proceedings on the ground that preliminary decree passed in O.S. No.17 of 1972 was fully satisfied as far as landed properties are concerned.
2. This appeal is taken up for final hearing and disposed of by the consent of learned advocates appearing for the parties.
3. Having heard the learned advocates appearing for the parties, this Court is of the considered view that following substantial questions of law, which are common to both the appeals, would arise for consideration:
(i) Whether order of remand by the lower appellate court is in consonance with Order XLI Rule 23, or Rule 23A, or Rule :8: 24, or Rule 25 of the Code of Civil Procedure, 1908 or contrary to said provision?
(ii) Whether the lower appellate court was correct and justified in setting aside the order passed in Final Decree Proceeding No.2 of 1999 dated 25 t h April 2009 and remanding the matter back to the trial court decreeing the final decree proceeding?
4. Parties are referred to as per their ranks in the Original Suit No.70 of 1972.
5. Facts in brief which has lead to filing of these two appeals can be crystalised as under:
Plaintiff--Sri.Sudhir Surendra Halagi filed a suit for partition and separate possession in forma pauperis viz., as an indigent person on 05 t h January 1970. The application was allowed and petition was registered as suit in O.S. No.17 of 1972. After contest, said suit came to be decreed on 31 s t August 1979 allotting 1/4 t h share to plaintiff. Being aggrieved by the judgment and :9: decree passed by the trial court, defendants 4 to 6 preferred regular appeal in RA No.52 of 1989 and defendants 7 to 9 preferred RA No.53 of 1989.
Said appeals came to be dismissed by a common judgment and decree dated 20 t h March 1997.
Defendant Nos.7 to 9 filed RSA No.580 of 1997, which also came to be dismissed on 09 t h July 1997.
6. After the suit came to be decreed, plaintiff initiated final decree proceedings in FDP No.2 of 1981. When the matter was pending before the first appellate court, final decree proceeding court which was adjudicating FDP No.2 of 1981, was directed to proceed with the final decree proceedings in respect of the suit schedule properties, except one item namely Item No.1 of schedule 'A' property i.e., relating to Sy.No.9 measuring 6 acres 36 guntas.
7. During the pendency of appeals RA Nos.52 and 53 of 1989, one of the purchasers of the suit : 10 : schedule property i.e., item No.2(1) of Schedule 'A', by name Sri.Mahadev Nagappa Majakur filed a suit in OS No.199 of 1997, seeking for declaration that he is the absolute owner in possession of the schedule land namely, 2 acres 11 guntas of RS No.9. Said suit came to be decreed on 29 t h October 2002. Against the said judgment and decree, plaintiffs in OS No.17 of 1972 filed an appeal in RA No.82 of 2002, which came to be allowed on 30 t h January 2006 and suit came to be dismissed. The unsuccessful plaintiff-- Sri.Mahadev Nagappa Majakur, pursued his grievance by filing RSA No.1464 of 2006, which also came to be dismissed on 06 t h March 2007 by this Court. This Court while dismissing said appeal had observed that it is open to the plaintiff i.e., the purchaser of a portion of the suit schedule property to an extent of 02 acres 07 guntas to work out his remedy in the final decree proceedings. However, by the time RA No.82 of 2002 came to be disposed of i.e., on 30 t h January : 11 : 2006, final decree proceedings which had been initiated by the original plaintiff in FDP No.2 of 1981 had already been concluded in the year 1999.
8. Subsequently, plaintiff in OS No.17 of 1972, yet again initiated final decree proceedings by filing FDP No.2 of 1999 on 25 t h January 1999, whereunder plaintiff had sought for a direction to effect partition by metes and bounds of the property bearing RS No.9 measuring 6 acres 36 guntas as more fully described in the schedule to the petition / application filed under Section 54 of the Code of Civil Procedure for drawing up of final decree proceedings. In the said final decree proceeding, a Court Commissioner was appointed and a report came to be submitted for the second time. On the issue regarding acceptability of the report of the Commissioner, the Court adjudicating final decree proceeding, passed an order dated 25 t h April 2009, after hearing the learned advocates appearing for the parties and after : 12 : considering the material records available on the file, that report of the Court Commissioner dated 05 t h August 2008 as per the explanation found in page No.162 (PT Sheet) is to be accepted and accordingly, final decree proceedings was ordered to be closed on the ground that the preliminary decree is fully satisfied insofar as the landed properties are concerned. In the said proceedings, a finding has been recorded by the trial court that suit schedule properties consisted of seven immoveable properties and out of the same, five properties measuring 38 acres had been allotted to the share of plaintiff and defendant No.3 in FDP No.2 of 1981 and thereby in the said proceeding, the right of plaintiff and defendant No.3 in respect of Sy.No.9 (which was not the subject mater of FDP No.2 of 1981) was set off against the claim of plaintiff or in other words, it was held that Sy.No.9 measuring 6 acres 36 guntas was allotted to the share of defendant No.1 under whom the appellants and other subsequent purchasers were : 13 : claiming right in respect of RS No.9. Hence, it came to be held that preliminary decree passed in OS No.17 of 1972 was duly satisfied in FDP No.2 of 1989. It has also been noticed by the trial court that the valuation made in the plaint of OS No.17 of 1972 in respect of five properties in respect of which partition came to be effected in FDP No.2 of 1981, was valued at Rs.90,000/- and the valuation made in respect of Sy.No.9 was Rs.13,000/- and that of RS No.4751 its value is Rs.17,000/-. Having noticed as such, it came to be held by the trial court that plaintiff and defendant No.3 have been given five properties, which is valued at Rs.90,000/- towards their half share (i.e., ¼+¼), which is in excess of the lands to which they are entitled to, by order dated 25 t h April 2009.
9. Being aggrieved by the said order, the original plaintiff - Sudheer Surendra Halagi in OS No.17 of 1972 filed an appeal in RA No.179 of 2009. The lower appellate court held, the trial : 14 : court did not have the benefit of examining the partition deed effected by the revenue authorities in BPD.SR.496 and as such, it came to be held by the first appellate court that trial court was not justified in arriving at a conclusion that plaintiff is not entitled for any share in Sy.No.9, particularly when share had been allotted to them in the remaining properties. Hence, it was held by lower appellate court that trial court had erroneously accepted the report of the Court Commissioner. Hence, lower appellate court was of the opinion that it is necessary to remand the matter regarding Court Commissioner's Report and the relevant documents was required to be examined by trial court, with a further direction to issue fresh instructions to the Court Commissioner to work-out the shares by following the memo of instructions which are going to be issued while carrying out the commission work. It was further held that trial court has to secure the file bearing No.BPD.SR.496, and if it is not available, to : 15 : reconstruct the file and to issue fresh Commission to allot the respective shares as per preliminary decree affirmed by the first appellate court and confirmed by this Court. It was further held by lower appellate court that trial court decree suffers from illegality since findings recorded by it (trial court) that preliminary decree passed in OS No.17 of 1972 has been duly satisfied, is without any foundation and as such, final decree proceeding No.2 of 1999 could not have been closed. On these grounds, first appellate court remanded the matter back to the trial court to dispose of FDP No.2 of 1999 in accordance with law by appointing a new Court Commissioner for allotment of shares in respect of the landed property i.e., RS No.9. Being aggrieved by this order of remand, present second appeal has been filed.
10. It is the contention of Sri Sanjay S. Katageri, learned counsel appearing for appellants that lower Appellate Court had failed to consider : 16 : the order of trial Court in proper perspective, inasmuch as, plaintiff and defendant No.3 i.e., respondents 1 and 2 had been allotted 38 acres 22 guntas in the earlier FDP No.2 of 1981 and pursuant to same, they were put in possession and now contending in FDP No.2 of 1999 that in respect of land bearing Sy.No.9 matter was pending in RSA No.508 of 1997 and as such, plaintiff is entitled for share in Sy.No.9 is erroneous, inasmuch as, plaintiff cannot question the partition effected in earlier FDP No.2 of 1981 and as such, plaintiff cannot contend that there was an error in the said partition. He would also elaborate his submission by contending that in the preliminary decree passed in O.S.No.17 of 1972 it is specifically held that appellants who were purchasers of different portions of RS No.9 were entitled to seek for allotment of those portions purchased by them is to be allotted to the share of defendant No.1 so that appellants would be able to retain for themselves property purchased by them : 17 : from 1 s t defendant while readjusting the shares of plaintiff and defendant No.3. Non consideration of this vital aspect has resulted in great failure in the administration of justice.
11. He would also contend that FDP No.2/1999 filed by the first respondent herein was not maintainable as respondent Nos.1 to 3 had received their 1/4 t h share as ordered in the preliminary decree and as such, trial Court could not have gone beyond the preliminary decree passed in O.S.No.17/1972 and in view of the same, Court Commissioner in his report filed in FDP No.2 of 1999 has in detail indicated the shares of the properties i.e., extent of land allotted to respondent Nos.1 to 3 along with map and same was examined by the trial Court and held that respondent Nos.1 and 2 i.e., plaintiff and third defendant had been allotted excess share in the suit schedule properties and it was also held that share allotted to the vendor of appellants would be less than what is entitled to including the : 18 : Sy.No.9. Hence, he prays for substantial question of law being answered in favour of appellants by setting aside the judgment and decree of lower appellate Court.
12. Per contra, Sri. Ravi G.Sabhahit, learned counsel appearing for respondents supporting the judgment and decree of the appellate Court would contend that trial Court relied upon the Court Commissioner's report dated 05.08.2008 to accept the same for closure of final decree proceedings viz., 2 of 1999 without considering the fact that entire records relating to earlier survey was not available before the trial Court and it is because of this precise reason the appellate Court had remanded the matter back to trial Court for adjudication afresh and had diverted the trial court to reconstruct the records and said order does not suffer from any infirmity. Hence, he submits that judgment of appellate Court be sustained by answering substantial question of law : 19 : in favour of respondent Nos.1 and 3 and prays for dismissal of the appeals.
13. Before dwelling upon or adjudicating the substantial questions of law, it would be apt and necessary to state certain facts which have not been narrated herein above and to the extent, it would throw light on the findings that would be recorded by this Court on substantial questions of law that have been formulated herein above.
14. It is not in dispute that the plaintiff in OS No.17 of 1972 had sought for partition and separate possession of his 1/4 t h share in the suit schedule properties with mesne profits and costs of the suit. Said suit came to be decreed on 31 s t August 1979. In the said suit, the following immoveable properties were described as Schedule 'A' properties:
SCHEDULE 'A' (1) X X X (2) The lands:-: 20 :
SL. R.S. Area Assess-
Market value
No. Nos. A.G. ment
1 9 6-36 11-94 Rs.13,000/-
2 474 21-19 27-50 Rs.40,000/-
3 475 16-36 16-57 Rs.17,000/-
4 505 11-31 8-84 Rs.12,000/-
5 727 0-20 0-60 Rs.1,000/-
6 728/1 3-16 25-82 Rs.17,000/-
7 729 4-00 29-78 Rs.20,000/-
64-38 118-05
15. Thus, from the above description of immoveable properties, it could be seen that seven properties were the subject matter of the suit. As already noticed herein above, some of the defendants pursued their grievance before the lower appellate court by filing two appeals viz., RA Nos.52 and 53 of 1989 which appeals came to be dismissed on 20 t h March 1997. The trial court while decreeing the suit (at page No.4) had held to the following effect:: 21 :
"The plaintiff and defendant No.3 are entitled for mesne profits to be ascertained in the final decree proceedings. Defendant Nos.4 to 9 being purchasers of different portions in RS No.9 are entitled to seek allotment of those portions to the share of defendant No.1, w hen it is possible to do so and retain them for themselves w hile readjusting the share of the plaintiff and defendant No.3."
(emphasis supplied by me)
16. Immediately after the judgment and decree came to be passed by the trial court and before RA Nos.52 and 53 of 1989 could be filed, the successful plaintiff had initiated FDP No.2 of 1981. However, the lower appellate court which was adjudicating appeals RA Nos.52 and 53 of 1989, permitted the final decree proceedings Court to continue the final decree proceedings in respect of all suit schedule properties, except item No.2(1) of Schedule 'A' i.e., RS No.9 measuring 6 acres 36 guntas in respect of which the subsequent purchasers were claiming right over : 22 : the same, namely to the extent which they had purchased. Hence, by keeping the issue regarding R.S.No.9 pending, final decree proceedings Court was permitted to proceed in respect of all other properties by lower appellate court. It is pursuant to the said direction or leave granted, FDP No.2 of 1981 came to be continued and was concluded in the year 1990 (i.e., on 22 n d January 1990).
17. Pursuant to conclusion of FDP No.2 of 1981 and parties to said proceedings being allotted shares, they sought for revenue records being mutated to their names. In fact, the mutation of revenue records pursuant to the said final decree proceedings was the subject matter of adjudication before the revenue authorities, which ultimately culminated in Writ Petition No.4728 of 1992 and the order passed by Tahasildar for mutating the revenue records pursuant to the preliminary decree, came to be affirmed by order dated 07 t h April 1992. (Reported in ILR 1992 : 23 : KAR 2152 - Yellappa Surendra Halagi vs Karnataka Appellate Tribunal).
18. The plaintiff who had not pursued his grievance in respect of RS No.9 initiated yet again final decree proceeding by filing separate application under Section 54 of the Code of Civil Procedure which application came to be numbered as FDP No.2 of 1999, contending inter alia that since RS No.9 was not divided by metes and bounds and possession of said survey number i.e., R.S. No.9 was delivered to the plaintiff and defendant No.3, they were entitled for partition and delivery of separate possession in respect of said property i.e., RS No.9. In the said final decree proceeding initiated, a Court Commissioner was appointed who submitted a report, which came to be rejected and thereafter, second report came to be submitted on 05 t h August 2008, which came to be accepted by the final decree proceedings Court adjudicating the FDP No.2 of : 24 : 1999 on 25 t h April 2009, as already been noticed herein above.
19. Respondent Nos.12, 13, 14 and 15 contested the said final decree proceedings, contending inter alia that in the final decree proceeding that was initiated earlier by the plaintiff in FDP No.2 of 1981, the share of plaintiff and defendant No.1 to which they were entitled to not only came to be quantified, but was also allotted in view of the observations made by the trial court while decreeing the suit OS No.17 of 1972 viz., ultimate share that may be allotted to defendant No.1 can be considered to set off in respect of his share to the extent of properties purchased by the subsequent purchasers, i.e., in respect of Sy.No.9 and the properties that are to be allotted to defendant No.1 in respect of other items of properties can be adjusted, had already been considered in FDP No.2 of 1981 and as such, plaintiff and 3rd defendant had been factually allotted share in excess of what they were entitled : 25 : to or in other words, they were not entitled for being granted any share in RS No.9. On the basis of said objections raised by respondent Nos.12 to 15, trial court had concluded, as already noticed herein above, that factually properties had been divided and parties were allotted shares is correct with reference to the extent of land allotted to them but it was also correct with reference to the valuation made by plaintiff himself, though the share that has been allotted to the plaintiff was much more than what he was otherwise entitled to. Hence, sustaining the objection raised, trial court closed FDP No.2 of 1999 filed by plaintiff in respect of Sy.No.9.
20. REG. SUBSTANTIAL QUESTION OF LAW No.1: The powers of first appellate court to order for remand of the matter can be traced to Order XLI Rule 23, Rule 23A, Rule 24 and Rule 25 of the Code of Civil Procedure. It is trite law that appellate court would not resort to remanding the matter when there is material available before it. : 26 : In such circumstances, it should decide the appeal by itself in one or the other way. Remanding is not correct only because the appellate Court considers the reasoning adopted by the lower appellate court in some respects are factually wrong. It is well settled law that the appellate court would be within its jurisdiction to remand a proceeding, if it is satisfied that there is sufficient justification for doing so and one of the paramount consideration in such situation is to examine as to whether appellant was precluded or prevented from tendering evidence or from prosecuting or defending the proceedings. If it is demonstrated, on the other hand, to the appellate court that opportunity was made available and said opportunity was not availed of, then, order of remand will not only be contrary to settled principle of law, but it would also be opposed to Order XLI Rules 23 to 25 of CPC.
21. Under Order XLI Rule 23 of CPC, the appellate court would exercise its power to remand : 27 : the matter where the suit has been disposed of on a preliminary point and while reversing the finding of the trial court, if the appellate court finds that what issue or issues should be tried in a given case, it would do so while remanding the matter. Rule 23 can be invoked by the appellate court when the appeal has arisen from a decree passed on a preliminary point. To put it differently, where the trial court after having framed the issues, while adjudicating a particular issue, disposed of the suit on a particular issue alone, without adjudicating other issues, then appellate court, if it finds that finding recorded on the said preliminary point is erroneous or illegal, it would remand the matter back to the trial court for adjudicating other issues which had not been adjudicated. While so remanding, it would have powers to issue directions to the trial court to either adjudicate all the issues which are left un- adjudicated or to confine itself to such of those : 28 : issues which may be relevant for resolving a dispute between the parties.
22. Rule 23A of Order XLI CPC which came to be inserted by amendment in the year 1976, would indicate that appellate court would remand the matter back to the trial court even though the suit has been disposed off on merits only in the event of appellate court reverses such finding of the trial court and considers that retrial is necessary. Only in such circumstance, appellate court may remand the suit to the trial court.
23. Under Rule 25, the appellate court will continue to be in the control of the appeal and yet it calls upon the trial court to record a finding on some of the issue or issues and call upon the trial court to record a finding on those issues and for that limited purpose remits the matter back to the trial court. In other words, Rule 25 is invoked by the appellate court where it holds that trial court that passed the decree omitted to frame or try any : 29 : issue or determine any question of fact thereunder to decide the matter finally. The appellate court, while remanding some issues for adjudication to the trial court, can also direct the trial court to take additional evidence on such issues by granting liberty to the parties.
24. The contours of remand has been indicated by the Hon'ble Apex Court in the case of JEGANNATHAN versus RAJU SIGAMANI, reported in 2012 (5) SCC 540 and it reads as under:
"6. Order 41 Rule 23 is invocable by the appellate court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the appellate court thinks proper to remand the case for fresh disposal. While doing so, the appellate court may issue further direction for trial of certain issues.
7. Order 41 Rule 23-A has been inserted in the Code by Act No. 104 of 1976 w.e.f. 01.02.1977. According to Order 41 Rule 23-A of the Code, the appellate court may remand the suit to the trial court even though such suit has been disposed of on merits. It provides : 30 : that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the appellate court considers that retrial is necessary, the appellate court may remand the suit to the trial court.
8. Insofar as Order 41 Rule 25 of the Code is concerned, the appellate court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate court. The power under Order 41 Rule 25 is invoked by the appellate court where it holds that the trial court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial court to take additional evidence on such issue(s)."
25. Keeping these aspects in mind, when the facts on hand are examined, it would clearly indicate that trial court, while considering as to whether the Commissioner's report dated 05 t h August 2008 is to be accepted or not, has proceeded to consider or examine all the material available before it, commencing from the decree that came to be passed in OS No.17 of 1972 way back on 31 s t August 1979 and all further : 31 : proceedings pursuant thereto. The issue which came to be examined by the trial court was whether the plaintiff who had obtained the judgment and decree for partition and separate possession of his 1/4 t h share in respect of suit schedule properties in OS No.17 of 1972 was allotted the shares as per the preliminary decree or not. It is in this background, trial court had examined the rival contentions and held that in the earlier round of litigation, which was initiated by the very same plaintiff in FDP No.2 of 1981, there was a claim for share being allotted in respect of the suit properties in favour of plaintiff and defendant No.3 and while so adjudicating, final decree proceedings Court had examined as to what extent plaintiff and 1 s t defendant should be allotted and while undertaking said exercise, it had also taken note of the observations made in RA Nos.52 and 53 of 1989, namely the extent of share that may be allotted to 1 s t defendant and plaintiff in RS No.9 can be set off by allotting : 32 : larger share to plaintiff in other properties and had accordingly allotted larger area to plaintiff which was higher in area and also in value and as such, it came to be held in FDP No.2 of 1999 that preliminary decree passed in OS No.17 of 1972 was duly satisfied.
26. One important factor which swayed in the mind of the trial court to accept the report of the Commissioner dated 05 t h August 2008 and to close the final decree proceeding was report of the revenue authorities (available in part) i.e., No.BPD.SR.496 which are the proceedings drawn under Section 54 of CPC by the revenue authorities in the earlier FDP No.2 of 1981. It was noticed by the trial court in FDP No.2 of 1999 that pursuant to the report of the Commissioner, the properties were allotted to the respective shares of the parties and they have acted upon it and the revenue records were also mutated based on Watap Takht. However, it was found by the trial court that the file No.BPD.SR.496 which contained : 33 : 649 pages transferred from the revenue authorities to the Court contained only pages 189, 629 and remaining portion of the file was not placed and as such, it directed the Registry to place the report before the Principal District and Sessions Judge, Belagavi, for suitable action being taken.
27. In the light of said finding having been recorded by the trial Court, appellate Court while examining the correctness of said finding recorded by trial Court on the ground that trial Court had wrongly arrived at a conclusion to the effect that plaintiffs are not entitled to any share in Sy. No .9 as larger share had been allotted to them in the remaining property i.e., in FDP No.2/1999, which was based on BPD-SR 496 and said document not being available in its entirety, it was necessary to issue fresh instruction to the Court Commissioner to work out shares and as such, it had directed the trial Court to reconstruct the records and issue appropriate instructions to the Court : 34 : Commissioner and adjudicate the same afresh in accordance with law. Thus, it can be seen that power which came to be exercised by the lower appellate Court for remanding the matter was on account of an order of trial Court being set aside in its entirety or in other words, exercising power under Order XLI Rule 23 CPC lower appellate Court remanded the matter. In that view of the matter, exercise of power under Order XLI Rule 23-A CPC by the appellate Court cannot be held either as illegal or without power available to it. Hence, substantial question of law is answered by holding that in the facts obtained in the present case the lower appellate Court was within its jurisdiction for exercising the power under Order XLI Rule 23 CPC. However, in the facts of the present case the matter was not required to be remanded back to trial Court.
RE. SUBSTANTIAL QUESTION OF LAW NO.2:
28. As already noticed hereinabove plaintiff had initiated second round of final decree : 35 : proceedings by filing an application under Section 54 of CPC, which came to be numbered as FDP No.2/1999. The copy of said final decree proceedings application is also appended to the present second appeal, which is on record and a perusal of same would indicate that plaintiff admits that he was put in possession of properties allotted to his share. Said admission reads as under:
"3. A final decree application was made after the passing of the preliminary decree and a final decree in respect of house properties and the lands which were not subject matter of R.A.No.53/1989, has already been decided and the plaintiff and defendant No.3 are put in possession of the properties allotted to their shares."
29. Having said so, it is also contended that in respect of Sy.No.9 which had been stayed in R.A.Nos.52/1989 and 53/1989 plaintiffs would be : 36 : entitled to a share in the said property, since these two appeals came to be dismissed on 23.03.1997 and affirmed in RSA No.508/1997 on 09.07.1997.
30. At this juncture itself it would be apt and necessary to state that trial Court while passing judgment and decree in O.S.No.17/1972 on 31.08.1979 had reserved liberty to the defendants 4 to 9 being the purchasers of different portions in RS No.9 to seek allotments of those portions which is purchased by them from first defendant to the share of defendant No.1, so that they can retain the portion purchased by them for themselves while allotting share of plaintiff and third defendant such adjustment can be made. In the final decree proceedings initiated by the plaintiff in FDP No.2/1981 plaintiff was allotted shares in the suit schedule properties to the extent as indicated herein below:
: 37 :
Sl. RS Extent
No. Numbers
1 474 18.12 guntas
2 505 11.31 guntas
3 727 21 guntas
4 728/1 4.24 guntas
5 729 4.36 guntas
The finding recorded by trial Court for closure of the final decree proceedings in FDP No.2/1999 is as under:
"Deputy Commissioner on being
forwarded the decree for effecting
partition and separate possession
delegated his power to Assistant
Commissioner to effect partition and
separate possession in accordance with decree. Appellate Court in turn forwarded the papers to Assistant Commissioner, Belgaum to prepare Watap Takht in terms of decree.
Accordingly, ADLR prepared Watap Takht and sent to Assistant Commissioner for an approval and Assistant Commissioner having approved the Watap Takht directed the concerned persons to hand : 38 : over possession thereof to respective parties and jurisdictional Tahsildar issued notices to the parties to be present at the spot on 22.01.1990 at 3.00 p.m. for taking delivery of possession of their respective shares."
31. Fifth respondent in RSA No.100079/2012 who was also party to final decree proceedings challenged the said proceedings and ultimately on 22.01.1990 possession of property came to be delivered by metes and bounds order a mahazar. It is this proceeding, which came to be challenged by fifth respondent herein in W.P.No.4728/1992 before this Court. After considering the rival contentions it was held that Assistant Commissioner was required to give an opportunity only to the parties before Civil Court and not others and it was held that writ petitioners claiming to be the children of Smt. Sushilabai, who was the kept mistress of deceased Sri Surendra Halagi (first defendant) and not being legitimate : 39 : sons of Sri Surendra, were not entitled to come on record and accordingly, dismissed the writ petition. This would clearly indicate that Watap Takht, which was drawn pursuant to preliminary decree had attained finality and pursuant to that revenue records also came to be mutated in the names of respective parties including plaintiff.
32. In this background, when the order of trial Court (passed in FDP No.2/1999) is perused it would clearly indicate that Court Commissioner who came to be appointed was directed to submit a report and had issued 8 instructions to the Court Commissioner and it reads as under:
"[1] To find out pursuant to order in FDP No.2/81 whether any shares are allotted to Defendant-1 Surendra and carved out in the Watap Takhta prepared by ADLR Belgaum and approved by Asst. Commissioner, Belgaum by order dtd 26-6-89 in No.BPD.SR.496 in the agricultural lands bearing sy.No.474, 505, 727, 728/1, 729 as per terms of : 40 : preliminary decree passed in O.S.No.17/72 and to prepare and submit sketch revealing the manner in which division is effected?
[2] If shares of Defendant-1 in the Sy.No.474, 505, 727, 728/1, 729 are allotted and carved out as per preliminary decree then to whom possession of said extents are given and on what date?
[3] In view of division of metes and bounds effected in Sy.No.474, 505, 727, 728/1, 729 pursuant to Watap Takhta accepted in BPD-SR-496, to consider and by taking into consideration of extents of shares allotted to plaintiff-Sudheer and his mother Smt. Jayawati whether it will be equitable, just and proper to allott entire extent of 6A-36Gs of Sy.No.9 to the exclusive share of Defendant-1 Surendra as per the terms of preliminary decree passed in O.S.No.17/72?: 41 :
[4] If it is not equitable to allot entire extent of Sy.No.9 to the share of late Defendant-1 Surendra then suggest whether share of plaintiff and his mother can be satisfied by some other method like allotting them the part of extent of share earmarked to late Defendant-1 Surendra in sy.No.474, 505, 727, 728/1, 729 in earlier Watap Takhta?
[5] To prepare and submit sketch showing the extent of area out of shares allotted to late Defendant-1 Surendra in Sy.No.474, 505, 727, 728/1, 729 as per earlier Watap Takhta which can be equitably
allotted to plaintiff and his mother in lieu of their shares in Sy.No.9?
[6] If it is not just and proper or equitable to allot entire sy.No.9 to the share of Defendant-1 then suggest the extent of shares that can be equitably allotted in sy.No.9 to the plaintiff, his mother Smt. Jayawati and to late Defendant No.1 Surendra : 42 : and to Defendant No.2 Appayya as per the terms of preliminary decree?
[7] Prepare a sketch by demarcating the individual extents purchased from late Defendant-1 out of sy.No.9 by Defendant No.4 to 6 [R-9 to 11 in FDP] by Defendant No.7 to 9 [R-12 to 14 in FDP] by R-15 Mahadev Ningappa Majukar?
[8] To suggest any other mode of equitable partition?"
(emphasis supplied by me)
33. Said Court Commissioner submitted his report which came to be objected to by defendants 1, 12 to 15 and it was set aside and later on fresh report came to be submitted on 05.08.2008. While issuing direction to the Court Commissioner to submit a report afresh, trial Court had directed the Court Commissioner to examine the comparative valuation of the property by taking into consideration the partition effected in BPD- SR-496 (relating to FDP No.2/1999). To the said : 43 : report (dated 05.08.2008) defendants 1 to 15 submitted that they have no objection. However, it was objected to by the petitioner (plaintiff).
34. The crux of claim put forth by plaintiff in second final decree proceedings initiated i.e., FDP No.2/1999 is that partition also had to be effected in respect of Sy.No.9, which had been left out in the earlier final decree proceedings i.e., FDP No.2/1981. However, having said so, plaintiff has not indicated in the second petition viz FDP No.2/1999 as to which of the properties was allotted to his share in FDP No.2/1981. There is not even a whisper in the petition filed under Section 54 of CPC i.e., FDP No.2/1999 with regard to earlier final decree proceedings - FDP No.2/1981 and the extent of the properties he has received as per the decree passed in FDP No.2/1981. In fact that itself would have been sufficient for the trial Court to arrive at a conclusion that there was nothing more which was required to be adjudicated. However, trial Court : 44 : did not stop at it. It has perused, examined and considered the entire material available on record including the report of Commissioner to arrive at a conclusion that partition had been effected earlier and pursuant to same plaintiff and his mother - third defendant were together allotted 38 acres and 22 guntas as per tabular column extracted hereinabove already and in lieu of what was to be allotted to them in Sy.No.9 they have been allotted land in other survey numbers, which is in excess of their entitlement.
35. The suit schedule properties consisted of 7 items of properties. In FDP No.2/1981 two items were not included i.e., Sy.No.9 and R.S.No.475. Except these two properties all other properties were included in FDP No.2/1981. Even the preliminary decree consisted of 7 lands, which is inclusive of Sy.No.9 and Sy.No.475. None of the parties assigned reasons for not including Sy.No.475 either in final decree proceedings i.e., : 45 : FDP No.2/1981 or subsequent one i.e., present FDP No.2/1999.
36. Valuation of properties namely 5 properties which was the subject matter of final decree proceedings - FDP No.2/1981 for which partition came to be effected, Watap Takht issued, revenue records mutated was valued at Rs.90,000/-. The value in respect of Sy.No.9 was valued at Rs.13,000/- and that of RS No.475 it was valued at Rs.17,000/-. The value of 5 properties which was allotted to the share of plaintiff and third defendant i.e., half share was valued at Rs.90,000/-. Thus, trial Court had rightly arrived at a conclusion that value of properties, which has been allotted to the share of plaintiff and third defendant was much more in value as well as in acreage it was in excess to which they were entitled.
37. As already observed hereinabove, when plaintiff has been contending that Sy.No.9 was not : 46 : partitioned and what was allotted to them in the earlier partition is not equivalent to the value of Sy.No.9, it was incumbent upon plaintiff to disclose the details thereof in the present petition. However, this exercise was not undertaken by the plaintiff. It was for the plaintiff and third defendant to establish the value of shares allotted to them as compared to other defendants was falling short or either half share as per preliminary decree was not allotted to them in FDP No.2/1981. However, not even piece of evidence was tendered by them to establish that lands allotted to them in the earlier partition did not satisfy their claim. As already noticed hereinabove, Sy.No.9 was under
dispute. It is because of this precise reason, this Court had affirmed the finding of trial Court that partition had to be effected in other lands and partition has to be made by way of equitable partition by allotting share of Surendra to the purchasers so that rights of purchasers are protected or in other words, sale would not be : 47 : disturbed and it can be saved. As such, trial Court had rightly held that it was incumbent upon plaintiff and third defendant to demonstrate the properties given to them under earlier partition i.e., BPD-SR-496, which undisputedly was also acted upon them, did not satisfy their claim fully or had been not in consonance with the preliminary decree, which came to be passed in O.S.No.17/1972. The burden which was cast on the plaintiff in that regard has not been discharged. It is because of this reason trial Court proceeded to accept the report of the Court commissioner.
38. On appreciation of entire material including the report of Commissioner it came to be noticed by trial Court that plaintiff and third defendant have been allotted an area measuring 38 acres 22 guntas and total extent of land included in preliminary decree is 64 acres 38 guntas out of which an area of 38 acres 22 guntas has been allotted to the share of plaintiff and third : 48 : defendant, which evidently did not include Sy.Nos.9 and 475. As to why plaintiff did not include or add Sy.No.475 either in the first petition (No.2/1981) in second petition (No.2/1999), no reasons are forthcoming. Even in respect of said Sy.No.475 (16 acres 36 guntas) plaintiff and third defendant would be entitled to share and in all they have been allotted 38 acres 22 guntas. Thus, excess land has been allotted to the share of plaintiff and third defendant. In that view of the matter, appellate Court without delving upon these vital facts could not have upset the finding recorded by trial Court that too on the ground that record relating to BPD-SR-496 was not available before the trial Court and as such, it could not have accepted the Commissioner's report. In fact, said record was available partially as could be seen from judgments of both the Courts. Even otherwise i.e., even in the absence of said revenue records other material which was available before the trial Court was Watap Takht, : 49 : which was effected pursuant to FDP No.2/1981, which was also affirmed by this Court in W.P.No.4278/1992 disposed of on 07.04.1992 whereunder delivery of possession of properties by metes and bounds on 22.01.1990 effected by the jurisdictional Tahsildar came to be affirmed.
39. That apart Sri. Sanjay S Katageri, learned counsel for appellants has also made available the copies of RTC extracts relating to the suit schedule properties which was the subject matter of division way back in the year 1999 which came to be affirmed by this Court and on perusal of said revenue records it would clearly indicate that plaintiff's predecessor in title had accepted the same, got revenue records mutated and have been enjoying the said properties. It is also reported that one of the property, which came to be allotted to the share of plaintiff and third defendant measuring 11 acres 31 guntas has also been sold in its entirety to Karnataka Law Society. : 50 :
40. In the light of above discussion, this Court is of the considered view that Substantial Question of Law No.2 formulated hereinabove deserves to be answered by holding that first appellate Court committed serious error in setting aside the finding of fact recorded by trial Court and upsetting the finding of trial Court without delving upon the factual aspects as discussed hereinabove. Hence, there is an error in law committed by first appellate Court. Accordingly, Substantial Question of Law No.2 is answered in favour of appellants and against respondents.
41. For the reasons aforestated, I proceed to pass the following:
ORDER * Corrected
(i) *MSA Nos.100079/2014 and vide court order dated 10.03.2017.
100080/2014 are hereby
Sd/-
(AKJ) allowed;
(ii) Judgment and decree passed in
R.A.Nos.168/2009 and 179/2009
dated 30.04.2014 are hereby set
: 51 :
aside and order passed by
Principal Civil Judge, (Sr.Dn.)
Belgaum dated 25.04.2009 in FDP
No.2/1999 is hereby affirmed;
(iii) Parties to bear their respective
costs.
Sd/-
JUDGE
P ar a s 1 -9 , 1 3-2 6 : R K / -
Pa r a s 1 0- 12 , 2 7- en d : D R /-