Karnataka High Court
Malhar Rao S/O Shamrao Kulkarni vs Kishan Rao S/O Kalyanrao Kulkarni on 29 September, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL NO.550/2005
BETWEEN:
MALHAR RAO
S/O SHAMRAO KULKARNI
AGE: 24 YEARS, OCC: AGRICULTURE
R/O SATHKHED, TQ. JEWARGI
DIST. GULBARGA- 585 105.
... APPELLANT
(BY SRI. A. VIJAYKUMAR, ADV.)
AND:
KISHAN RAO
S/O KALYANRAO KULKARNI
AGE: MAJOR, OCC: PENSIONER
R/O SATHKHED, TQ. JEWARGI,
DIST. GULBARGA- 585 105.
... RESPONDENT
(BY SRI. CHAITANYAKUMAR C.M., ADV.)
THIS RSA IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGMENT AND DECREE DATED: 4.1.2005
PASSED IN RA.NO.548/2004 ON THE FILE OF THE
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PRESIDING OFFICER, FAST TRACK COURT-V, GULBARGA,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDMENT AND DECREE DATED: 25.10.2003 PASSED IN
OS.NO.474/1993 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.), JEWARGI.
THIS APPEAL COMING ON FOR FURTHER
ARGUMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard the learned counsel for the parties and perused the records. The present appeal is admitted to consider the following substantial question of law framed by this Court on 14.07.2005:
"Whether the finding of the first appellate Court reversing the judgment and decree passed by the trial Court is perverse and arbitrary, being contrary to law and material on record?"
2. Plaintiff has filed this appeal under Section 100 of CPC, challenging the divergent judgment passed against him in R.A.No.548/2004. Respondent is the 3 sole defendant in the suit filed by this appellant in O.S.No.474/1993, before the Court of Civil Judge (Jr.Dn.), Jewargi, Gulbarga district.
3. Plaintiff had filed a suit for the relief of declaration to the effect that the wall existing between the houses of the plaintiff and defendant is a common wall and for permanent injunction to restrain the defendant for putting the windows in the said common wall. The suit came to be decreed after contest on 25.10.2003, by framing issues as found in page No.5 of the trial Court judgment as follows:
1. Whether the plaintiff proves that, the suit wall is a common wall?
2. Whether the plaintiff further proves that, the alleged illegal construction by the defendant is over the suit wall?4
3. Whether defendant proves that, he was the owner of the suit wall as on the date of the suit?
4. Whether the defendant is entitled for compensatory cost of Rs.2,000/-?
5. Whether the plaintiff proves that, he is entitled for the relief as prayed for?
6. What order or decree?
All the issues answered in the affirmative and suit was decreed.
4. Against the said judgment and decree, an appeal was filed in terms of Section 96 of CPC and the same was withdrawn and transferred to Fast Track Court-V, Gulbarga in R.A.No.548/2004. The said appeal came to be allowed on 04.01.2005, dismissing the suit of the plaintiff. Hence, plaintiff has filed this appeal under Section 100 of CPC.
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5. The points framed by the First Appellate Court are as follows:
1. Whether the plaintiff is able to prove that, this 14x13' length land height wall is exclusive belongs to him?
2. Whether plaintiffs prove that defendant without right title interest erected doors and windows in the said 14 x13' wall?
3. Whether this 14 x13' wall is part and parcel of 104 feet wall situated in between the plaintiff and defendants house?
4. Whether the judgment and decree passed by the learned trial perverse, capricious and liable to be interfered with?
5. What order?
Points No.1 to 3 have been answered in the negative and point No.4 has been answered in the 6 affirmative. Ultimately, the appeal came to be allowed and suit filed by the plaintiff was dismissed.
6. First Appellate Court is the final Court of facts and it has to consider the entire evidence in right prospective by framing proper points for consideration as per the mandate of Rule 31(a) of Order 41 of CPC. If no proper points are framed by the First Appellate Court, an important opportunity will be denied to the second appellate Court to admit the appeal. As could be seen from the contents of the plaint filed by this appellant, categorical averment is made to the effect that the disputed wall existing in between the houses of the plaintiff and defendant is a common wall and the defendant has no right to put any windows. The said averment was accepted by the trial Court after recording the evidence of material witnesses.
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7. In order to upturn a considered judgment of the trial Court, the First Appellate Court has to re- appreciate the entire evidence and has to come to the conclusion as to where the trial Court has gone wrong and what should have been the proper approach to be adopted by the trial Court, as per the principles laid down by the Hon'ble Apex Court in the case of Santhosh Hazari VS Purushottam Tiwari reported in AIR 2001 SC 965.
8. If the First Appellate Court intends to affirm the judgment of the trial Court, it need not assign elaborate reasons and the reasons already given by the trial Court could be accepted. As already discussed, the very first point framed by the First Appellate Court is not consistent with the stand taken by the plaintiff in the trial Court and the grounds urged by the defendant in the First Appellate Court. The points so formulated 8 is contrary to the mandate of Rule 31(a) of Order 41of CPC. Thus, the First Appellate Court has misread the entire materials while re-appreciating the evidence on record. In this view of the matter, the substantial question of law framed by this Court will have to be answered in the affirmative. Hence, the matter needs to be remitted to the First Appellate Court to consider the appeal in right prospective by framing appropriate points for consideration and to dispose off the appeal in accordance with law. Hence, the following:
ORDER Appeal filed under Section 100 of CPC is allowed and the matter is remitted to the First Appellate Court i.e., the Court of Civil Judge (Sr.Dn.) at Gulbarga. Parties to appear before the Court of Civil Judge (Sr.Dn.), Gulbarga on 06.11.2015 without fail. 9
First Appellate Court to dispose off the appeal preferably within three months from the date of appearance of the parties. The parties and advocates to co-operate the First Appellate Court to dispose off the appeal in accordance with law.
Registry to send a copy of this judgment and entire records of the trial Court as well as the First Appellate Court to the First Appellate Court.
Both the parties to maintain same status as they exist today till the disposal of the appeal by the First Appellate Court.
Parties to bear their own costs.
Sd/-
JUDGE Srt