Karnataka High Court
Bellur Usha Shivaprasad vs Smt. Sarasamba Anantha Swamy on 2 June, 2020
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2nd DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.1522 OF 2013
C/w
REGULAR FIRST APPEAL NO.1795 OF 2013
RFA No. 1522 OF 2013
Between:
1. Bellur Usha Shivaprasad
W/o Dr.B.G.Shivaprasad,
Aged about 60 years,
2. Vidya Prasad Bellur
D/o Dr.B.G.Shivaprasad,
Aged about 30 years,
Appellants 1 and 2 were earlier
R/at No.500A, 11th Cross,
Shivaji Road, N.R.Mohalla,
Mysore - 570 007.
Presently are residing at
Old No.8, New No.64,
Shankara Park,
Opposite Shankarapuram Mutt,
Shankarapuram,
Bengaluru - 560 004.
2
3. Dr.B.G.Shivaprasad
S/o Late B. Gopalaiah,
Aged about 66 years,
Earlier R/at No.43,
Fox Lane Extension,
Painted Post,
New York - 14870 USA,
Presently R/at 748 Stratford,
Drive Sidney, OH 45365, USA.
...Appellants
(By Sri.P.M.Siddamallappa, Advocate for A1;
Smt.Vidya Prasad Bellur, A2, Party-in-person,
Dr.B.G.Shivaprasad, A3, Party-in-person)
And:
1. Smt.Sarasamba Anantha Swamy
W/o Anantha Swamy,
Aged about 70 years,
Residing at Old No.8,
New No.64, Shankara Park,
Opposite Shankara Mutt,
Shankarapuram,
Bengaluru - 560 004.
2. Smt.Vani N.Murthy
W/o Dr.Nagaraj Murthy
Aged about 45 years,
Dentist, Surya Nivas,
Seon, Mumbai,
Maharastra.
...Respondents
(By Sri.R.Chandrashekar, Advocate)
This Regular First Appeal is filed under Section 96 read
with Order 41 Rule 1 of the Code of Civil Procedure against the
orders dated 31.07.2013 passed in O.S.No.677/2010 on the file
of the XVIII Additional City Civil Judge, Bengaluru partly
decreeing the suit for partition.
3
RFA No.1795 OF 2013
Between:
1. Smt.Sarasamba Anantha Swamy
Aged about 70 years,
W/o Late Anantha Swamy,
Residing at No.8 (Old),
64 (new), Shankara Park,
Opposite Shankara Mutt,
Shankarapuram,
Bengaluru - 560 004.
2. Smt.Vani N.Murthy
Aged about 60 years,
W/o Dr.Nagaraj Murthy
Dentist, Suryanivas,
Seon, Mumbai,
Maharastra.
...Appellants
(By Sri.R.Chandrashekar, Advocate)
And:
1. Bellur Usha Shivaprasad
Aged about 59 years,
W/o Dr.B.G.Shivaprasad,
2. Vidya Prasad Bellur
Aged about 30 years,
D/o Dr.B.G.Shivaprasad,
3. Dr.B.G.Shivaprasad
Aged about 65 years,
S/o Late Gopalaiah,
Respondents (1) to (3) are
Residing at No.8 (Old),
64 (new), Ground floor,
4
Shankara Park,
Opposite Shankara Mutt,
Shankarapuram,
Bengaluru - 560 004.
...Respondents
(By Sri.P.M.Siddamallappa, Advocate for R1;
Smt.Vidya Prasad Bellur, R2, Party-in-person,
Dr.B.G.Shivaprasad, R3, Party-in-person)
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure against the judgment and decree dated
31.07.2013 passed in O.S.No.677/2010 on the file of the XVIII
Additional City Civil Judge, Bengaluru partly decreeing the suit
for damages.
In these appeals, arguments being heard, judgment
reserved, coming on for pronouncement, this day, INDIRESH
J., delivered the following:
JUDGMENT
These two appeals are preferred by the plaintiffs and defendants being aggrieved by the judgment and decree dated 31st July, 2013 passed in OS NO.677 of 2010 by XVIII Additional City Civil Judge, Bengaluru whereunder suit filed by the plaintiffs for evicting/ejectment of the defendants from suit schedule property and for damages came to be decreed partly by arriving at a conclusion that third plaintiff along with defendants-1 and 2 are entitled for 1/3rd share in the suit schedule property. 5
2. For the sake of convenience, parties in this appeal shall be referred to in terms of their status before the trial court.
3. Originally suit was filed before the Family Court by plaintiffs No.1 and 2 in O.S.No.1/2003 (Mother and daughter) and thereafter suit was transferred to XXXVII Additional City Civil Judge (CCH 57) and consequently, re-numbered as O.S.No.677/2010.
4. Appellants No.1 and 2 in RFA No.1522/2013 who are plaintiffs-1 and 2 in OS No.677 of 2020 sought for half of the plaint schedule property interalia seeking Rs.15,000/- per month as damages/maintenance against appellant No.3 and respondents 1 and 2 herein. During the pendency of the suit, defendant No.3 (husband of 1st plaintiff and father of secondplaintiff) got transposed himself as plaintiff No.3 by order dated 09.01.2013 passed by the trial Court. Plaintiff No.3 is brother of defendant Nos.1 and 2.
5. The brief facts of the case as alleged in the plaint is, plaintiff No.1 and plaintiff No.3 got married on 12.05.1978 at Mysore and they stayed together for sometime at Bengaluru and 6 later moved to United States of America where they were employed. They have two children namely Son-Mr. Vivek and daughter-Ms.Vidya (plaintiff No.2). Plaintiff Nos.2 and 3 are permanent citizens of United States of America. Due to matrimonial differences between plaintiff Nos.1 and 3, plaintiff No.1 had filed MC No.40/1994 before Civil Judge (Senior Division), Mysore for decree for divorce and trial Court granted a decree for divorce on 04.03.1996.
6. The case of plaintiff Nos.1 and 2 is that first plaintiff has contributed towards acquisition of the properties held by the parties and also first and third plaintiffs have shared equally all the liabilities in respect of acquisition of the suit schedule property. It was contended that plaintiff No.3 has to provide necessary financial support to the second plaintiff herein for settlement in life besides her higher education including her marriage. Therefore, second plaintiff is entitled for her claim to maintenance, education, marriage for settlement in life which has to be done by plaintiff No.3. It was contended plaintiffs have undergone mental agony in view of the dispute between plaintiff 7 Nos.1 and 3. It is further alleged that 1st plaintiff herself had to take care of plaintiff No.2, being unemployed. It is also contended that first plaintiff has also contributed towards the acquisition of the properties of the third plaintiff and hence plaintiffs 1 and 2 are entitled for half share in the suit schedule property held by third plaintiff in India by virtue of his status. The plaintiffs further alleged that defendants No.1 and 2, (sisters of third plaintiff herein), are trying to interfere with the family matters between first plaintiff and third plaintiff and also claiming their share in the entire schedule property belonging to plaintiff No.3. In view of the fact that plaintiff No.3 has made an attempt to transfer whole property in favour of third parties, the original plaintiffs have filed a suit seeking half share of the plaint schedule property inter-alia seeking Rs.15,000/- per month from the defendants therein by way of damages, as defendants are in occupation of the schedule properties and also sought for delivery of vacant possession and such other reliefs.
7. Plaintiff No.3 (originally defendant No.1) has filed written statement admitting solemnization of marriage on 8 12.05.1978 between first plaintiff and defendant No.1 as per Hindu customs and rites and it is also contended they lived together for 17 days in Bengaluru and thereafter, they moved to USA and lived therein at various places. The plaintiff No.3 admits the fact that he had two children viz. Vivek Ram (not a party to any of the proceedings) and daughter-Vidya (plaintiff No.2). Plaintiff No.3 was working at Bharat Heavy Electricals Limited in Bengaluru. After a considerable period, he resigned from said post and took-up assignment at Dallas-Texas and after four years they shifted to Irwin near Pittsburg and lived there for two years and thereafter, shifted to Connecticut. They lived at Connecticut for 4 ½ years and moved to Virginia where they lived for two years and thereafter moved to New York. Plaintiff No.3 further states that he holds a degree in Engineering and first plaintiff holds a Master's Degree. The first plaintiff had filed MC No.40/1994 on the file of II Additional Civil Judge, Mysore under Section 13(1)(i)(a) of the Hindu Marriage Act and trial Court, by order dated 04.03.1996, allowed the petition dissolving the marriage solemnized between the plaintiff No.1 and plaintiff No.3 and also directed third 9 plaintiff to pay a sum of Rs.6,500/- per month as maintenance to first and second plaintiffs respectively. Plaintiff No.3 has further contended that his son Sri Vivek Ram had filed a suit for maintenance in O.S.No.408/1996 on the file of Civil Judge, Mysore which came to be dismissed on the ground that he has attained the age of majority. Plaintiff No.3 also filed an application in MC No.40/1994 and sought for custody of the minor daughter-Vidya (plaintiff No.2) which was allowed by granting custody of minor daughter-Vidya to the plaintiff No.3. Consequently, maintenance awarded @ Rs.6,500/- per month came to be reduced to Rs.6,000/- per month. Though said order was passed by trial Court handing over the custody of the child to plaintiff No.3, plaintiff No.1 has retained the custody of minor daughter. In view of said fact, plaintiff No.3 started sending money to the minor daughter voluntarily. Furthermore, plaintiff No.3 has categorically stated in his written statement that he was regularly sending alimony of Rs.6,000/- per month to the first plaintiff without any break. In the interregnum, first plaintiff has made a claim petition against plaintiff No.3 through her counsel in New York for maintenance and distribution of 10 marital property standing in the name of plaintiff No.3. The case was contested before the Supreme Court, County of Steuben and thereby, the claim put-forth by first plaintiff was held to be entitled for equitable distribution in all the properties of plaintiff No.3. The Hon'ble Supreme Court, County of Steuben by its order dated 09.09.2000 awarded US$29,310 to be payable by plaintiff No.3 to the first plaintiff and plaintiff No.3 herein has paid the entire amount so awarded by the Supreme Court, County of Steuben. Plaintiff No.3 has further stated that title to the property at Shankara Mutt at Bengaluru stands in his name and he has purchased the same before marriage and as such, the plaintiff No.3 contended that plaintiff Nos.1 and 2 are not entitled for share in the said property in lieu of payment of US$29,310 as ordered by American Court. The plaintiff No.3 further submits that this aspect of the matter was suppressed by the plaintiff No.1 in her plaint averments. Plaintiff No.3 further states that defendants No.2 and 3 are his sisters and plaintiff No.1 is fully aware that the suit property was purchased by plaintiff No.3 and he has allowed his elder sister to stay in the first floor of the suit schedule property after being constructed 11 by her and as such, he has contended that ground and first floor of the suit schedule property is concerned, the right is between plaintiff No.3 and defendant No.2 for which first plaintiff has no right to claim. On these grounds, plaintiff No.3 sought for dismissal of the suit.
8. The then second defendant (later arrayed as first defendant) had filed the written statement denying the plaint averments and stated that her father Late Sri Gopalaiah was a District and Sessions Judge and after his retirement, he had continued with the profession of Advocacy. She further states that her father was a tenant in respect of schedule property through a court auction in 1956 and since then he was tenant for sometime. Thereafter, he has purchased the schedule property at concession rate under a registered sale deed dated 10.09.1975. She further states that her father was unable to acquire immovable property as he was required to obtain permission from this Court and as such her father had acquired the schedule property in the name of third plaintiff. She further states that plaintiff No.3 as on 10.07.1975 was a student, who 12 was pursuing Ph.D at Indian Institute of Science, Bengaluru who had no source of income of his own to acquire the suit schedule property and entire sale consideration was paid by her father Late Sri Gopalaiah. Thus, the schedule property is self acquired property of her father and in view of the same, all the children of Late Sri Gopalaiah are entitled for equal share in the said property on his demise. She has further contended in her written statement that her father had executed a registered Will dated 18.08.1989 bequeathing 'C' schedule property therein i.e. suit schedule property in favour of his wife till her death and thereafter said property has to devolve upon all the children equally, so as to avoid difference of opinion amongst his children and pursuant to the same, this defendant has constructed one floor at her cost over the existing ground floor and it is in her exclusive possession. She further states that as there were certain discrepancies which had crept in the registered Will dated 18.08.1989, her father had cancelled the said Will and had executed a comprehensive registered Will dated 19.12.1992 declaring his intention to allot schedule property to his children with equitable devolution. She further states that recital in the 13 Will would clearly establish the fact that entire sale consideration for purchasing of the suit schedule property was paid by her father Late Sri Gopalaiah. Therefore, registered Will executed by her father bequeathing the first floor portion being schedule 'A' premises in favour of this defendant it is in accordance with law and on demise of her father on 11.05.2004, defendants are in possession of their respective shares. There is absolutely no dispute of whatsoever nature between the children of Late Sri Gopalaiah and in view of the said fact, plaintiff Nos.1 and 2 have no semblance of right over the schedule property. Having said so, defendant No.2 also states that defendants and the plaintiff No.3 are enjoying schedule property and accordingly, they are entitled for 1/thirdshare each in respect of suit schedule property and sought for dismissal of suit, inter alia sought for counter claim against the plaintiffs for judgment and decree declaring that defendants 1 and 2 are absolute owners in possession of the suit schedule property by virtue of registered Will dated 19.12.1992 executed by her father Late Sri Gopalaiah in respect of their 1/3rd share each in suit schedule property. 14
9. Defendant No.2 who is sister of Sri B.G. Shivaprasad (plaintiff No.3) and Smt. Sarasamba Anantha Swamy (defendant No.1) has not filed any written statement.
10. Based on the pleadings in the suit, trial Court had framed the following issues:
1. Does the plaintiffs prove that plaintiff No.3 is the absolute owner of the suit schedule property?
2. Does the plaintiffs prove that possession of the defendants in portion of the suit schedule property is a permissive possession?
3. Does the plaintiffs prove that they are entitled for possession of the suit property possessed by defendants?
4. Does the plaintiffs prove that the plaintiff Nos.1 and 2 are entitled for the income of portion of suit schedule property towards their maintenance charges and educational charges of plaintiff No.2 as contended in the plaint?
5. Does the plaintiffs prove that they are entitled for damages from the defendants towards the plaint schedule property?15
6. Does the defendants prove that the entire plaint schedule property written statement the absolute property of father of plaintiff No.3 and defendant No.1 namely Sri Gopalaiah?
7. Does the defendants prove that on 19.12.1992 Sri Gopalaiah has bequeathed the entire plaint schedule property in favour of A, B and C and that Will deed is his last deed?
8. Does the defendants prove that the plaintiff No.3 and defendants have acted as per the Will Deed dated 19.12.1992 and each one of them are the absolute owner of 1/3 share in the suit schedule property?
9. What order or decree?
11. Plaintiff Nos.1 and 3 came to be examined as PW1 and PW2 respectively and they got marked in all 10 documents as Exhibits P1 to P10. Defendant No.1 was examined as DW1 and got marked 9 documents as Exhibits D1 to D9.
12. Having heard the learned Advocates appearing for parties and on evaluation of evidence, trial Court has decreed the suit in part viz. it has been observed that third plaintiff and 16 defendants are entitled to one-third share in the suit schedule property and prayer of the petitioner for possession and damages has been rejected.
13. Learned Trial Judge, has recorded a finding on issues No.1 and 6 to the effect that plaintiffs had failed to prove the third plaintiff was the absolute owner of the suit schedule property, on the ground that admittedly, father late Sri Gopalaiah was a lessee of the suit schedule property and as on execution of sale deed dated 10.09.1975 Exhibit P1 in favour of third plaintiff, he was a student without any independent income. It is also held that third plaintiff had failed to prove he had any source of income. In other words, trial Court, vide paragraph 15 of its judgment has held that father of third plaintiff was a retired District Judge and was practicing as a lawyer till 1988 and as such it should be presumed that suit schedule property was purchased by father and not third plaintiff and third plaintiff was not the absolute owner of the suit schedule property.
14. Smt. Sarasamba Anantha Swamy - who was originally arrayed as second defendant and on transposition of third 17 plaintiff (who was first defendant earlier) had filed written statement by denying claim of plaintiff and she had claimed title to the suit schedule property along with her sister by propounding the Will dated 19.12.1992 alleged to have been executed by her father. Hence, issue Nos.7 and 8 came to be formulated by the trial Court and answered in the negative on the ground that none of the witnesses to the Will had been examined and thereby Will was not proved. Hence, these two (2) issues were answered in the negative.
15. Insofar as issues No.2 to 5 are concerned, the burden of proving said issues was on plaintiff and Trial Court has answered the same in the negative. Hence, plaintiffs and defendants have preferred these two appeals. Plaintiffs have preferred RFA 1522 of 2013 being aggrieved by the partial decree granted by the trial Court holding third plaintiff is entitled for one-third share only and not declaring him (third plaintiff) as absolute owner of suit schedule property, on the ground that plea of defendants relating to name of third plaintiff being reflected in the sale-deed dated 10.09.1995 (Exhibit P1) is a 18 benami transaction and hit by Section 4 of Benami Transaction (Prohibition) Act,. 1988. An interlocutory application - IA.III of 2016 came to be filed on 26.02.2016 seeking production of seven (7) documents by way of additional evidence. In fact, same set of documents, few of which are original, had been produced on 05.01.2016 itself. This Court, by order dated 25.03.2019 had ordered for IA.3 of 2016 to be heard finally. Defendants have preferred RFA 1795 of 2013 being aggrieved by rejection of their counter-claim, viz. to declare them as absolute owners of suit schedule property by virtue of Will dated 19.12.1992 (Exhibit D2) contending the suit schedule property was owned by their father and as absolute owner of said property, he had bequeathed in favour of his children, i.e. third plaintiff and defendants and trial Court could not have rejected their claim.
16. We have heard Sri. Siddamallappa, learned counsel for appellant No.1, Dr. B.G.Shiva Prasad-appellant No.3 (party-in- person), and Smt. Vidya Prasad Bellur-appellant No.2 (party-in- person); and Shri R. Chandrashekar, learned counsel appearing 19 for appellants in RFA 1795 of 2013 and respondents in RFA 1522 of 2013.
17. Sri. B.G. Shiva Prasad, appellant No.3 party-in- person has submitted that trial Court has misconstrued the entire factual aspect of the case and has proceeded on the assumption that suit is filed for partition in respect of the suit schedule property in which the original plaintiffs sought for eviction of respondent herein. He further submits that originally suit though had been filed against him by appellants No.1 and 2 claiming maintenance and half share in suit schedule property however pursuant to death of his second wife, original plaintiffs and himself had reconciled their disputes and in that view of the same, reliefs sought for by the original plaintiffs did not survive for consideration before the trial Court and as such, trial Court should have closed the proceedings and therefore, finding recorded by the trial Court with regard to the partition of suit schedule properties is not correct. He further submits that he is the owner of the suit schedule property and it is his self-acquired property as the title of the suit schedule property stands in his 20 name and suit ought to have been decreed in his favour by declaring him to be the absolute owner. He contends, trial court erred in decreeing the suit by granting him only 1/3rd share along with defendant Nos.1 and 2 in the suit schedule property which absolutely belongs to him and it is an erroneous finding. Therefore, he contends that trial Court has misconstrued the facts and has not properly appreciated the available evidence on record.
18. He further contends that trial Court ought to have closed the matter since main grievance of the original plaintiffs 1 and 2 was against him; since plaintiffs have agreed to withdraw all their allegations and pending cases against each other pursuant to reconciliation and it ought to have relegated the defendants to establish their claim over suit schedule property by way of filing separate suit and their claim over suit schedule property did not survive for consideration. In this regard, he submits that trial Court has not understood the factual aspect of the controversy in the right perspective and therefore, same deserves to be set aside by this Court.
21
19. He further submits that trial Court has not considered the order dated 03.11.1992 passed by this Court in W.P.No.25298/1992, wherein this Court has rejected the claim of his father-Sri B.Gopalaiah with regard to entering the name of his father in respect of suit schedule property; he further contends that trial Court ought to have considered the observation made by this Court in the said writ petition whereunder, this Court has declared the ownership of suit schedule property vests with third plaintiff; hence, the judgment and decree passed by the Trial Court is based on erroneous finding recorded and same is without any merit and it is liable to be interfered by this Court. He further submits that finding recorded by the trial Court that suit schedule property is the absolute property of late Sri Gopalaiah and on his demise, appellant No.3 along with respondents have succeeded to his estate is erroneous and as such, granting 1/3rd share to them is contrary to evidence on record. He submits that all the children of Sri Gopalaiah had lived separately and appellant No.3 alone had paid consideration towards purchase of suit schedule property from Shringeri Shankarmutt and Sri Gopalaiah had no 22 source of income during said period and as such declaring the suit schedule property as the absolute property of Late Sri Gopalaiah is not correct and same is devoid of merits. Appellant No.3 further submits that observation of the trial Court with regard to registered Will dated 18.08.1989 (Ex.D1) and Will dated 19.02.1992 (Ex.D2) declaring the intention of testator-Sri Gopalaiah to allot equitable shares to his children is an erroneous finding contrary to evidence on record; it is further contended by Appellant No.3 that trial Court had erred in allotting 1/3rd share to each of the respondent along with third plaintiff is without any basis and thereby, judgment and decree passed by trial Court deserves to be set aside by this Court. He prays for declaring him as the absolute owner in possession of the property and suit being decreed accordingly.
20. Appellant No.2 submits that suit schedule property is the self acquired property of appellant No.3 as he had purchased the suit schedule property from his earnings and she submits that main issue in the suit is only with regard to the eviction/ejection of respondent No.1 and in this regard, she 23 submits permitting first respondent herein to stay in the first floor of the suit schedule property was only permissive possession and as such, respondents herein have no right, title or interest in the suit schedule property and by adopting the arguments of her father i.e. appellant No.3, she prays for allowing the appeal and decreeing the suit for possession.
21. Learned counsel for appellant No.1 submits that trial Court has misguided itself on the basis of various orders passed on interlocutory applications and it has not understood the case on merits and as such, he submits that finding recorded by the trial Court is contrary to factual aspects of the case and therefore, he submits that impugned judgment and decree passed by the trial Court deserves to be set aside by this Court.
22. Per contra, learned counsel appearing for first respondent has contended that appellant No.3 herein who had initially filed the written statement in the suit as defendant No.1 before getting himself transposed as third plaintiff, had admitted in paragraph 20 of his written statement that respondents have put up construction in the suit schedule property at the instance 24 of his father late Sri Gopalaiah and during lifetime which is also evident from the will executed by their father and as such, he contends that relief sought for by the appellants No.1 and 2 for partition and for maintenance as pleaded in the suit is not maintainable. Learned counsel for the first respondent would further submit that, appellant No.3 herein has denied the averments made in the plaint and no amendment has been sought for in the pleadings by appellant No.3 herein after transposing himself as third plaintiff and as such, learned counsel for respondents submits that trial Court after considering the entire aspect of the matter has arrived at a conclusion that suit schedule property is to be divided amongst third plaintiff and defendants which finding does not call for interference by this Court. He further submits that finding recorded by the trial Court with regard to the Registered Will dated 18.08.1989 (Exhibit D1) and Will dated 19.02.1992 (Exhibit D2) is erroneous as father of the respondents and appellant No.3 was a retired District Judge and was practicing as an advocate and in that view of the matter, he had sufficient income for purchase of the suit schedule property. He would further contend that 25 deceased Sri Gopalaiah had paid the entire consideration amount for purchase of suit schedule property, but sale deed came to be registered in the name of appellant No.3 herein and as such, finding recorded by the trial Court with regard to execution of the Will requires to be set aside and/or modified. Hence, he prays for RFA No.1795 of 2013 being allowed and RFA 1522 of 2103 being dismissed.
23. Having heard the learned Advocates appearing for the parties and after bestowing our careful attention to the rival contentions raised, we are of the considered view that following points would arise for our consideration:
1. Whether the judgment and decree passed by the trial court suffers from any infirmity either in law or on facts calling for our interference?
2 Whether trial court has appreciated the evidence on record in proper perspective or has failed to consider the available evidence?
3. Whether application filed under Order 41 Rule 27 by the third plaintiff deserves to be allowed or dismissed?26
4. What order?
BRIEF BACK GROUND:
24. Before proceeding to adjudicate the points formulated above, it would be apt and appropriate to state the background of the case.
Essentially the dispute involved in the suit relates to the immoveable property situated at Shankarapuram, Bangalore which is located in a prime locality in the city of Bangalore. Initially, dispute was between wife, daughter and husband namely between Plaintiffs 1 and 2 on the one hand and the then first defendant. Said suit came to be filed before the Family Court at Bangalore in O.S.No:1/2003 and later it came to be transferred to City Civil Court. First plaintiff contended that she is entitled to half share in the suit schedule property towards her maintenance, on account of matrimonial dispute having arisen between herself and her husband (then first defendant) contending interalia that her petition for divorce filed against third plaintiff (her husband) in M.C.No:40/1994 had been allowed and she had to take care of her children, for which third plaintiff will have to provide for, which was not done. Hence, 27 claiming half share in the suit schedule property, she sought payment of Rs.15,000/- per month from the defendants as maintenance , who are in occupation of it by way of damages and also sought for eviction of defendants from the suit property amongst other reliefs.
25. It has been the case of plaintiffs 1 and 2 that first plaintiff and third plaintiff got married on 12-05-1978 at Mysore and they lived together for some time at Bangalore and later for some years at United States of America. It was contended that a son and a daughter were born from wedlock and on account of certain differences having arisen between first and third plaintiff, a petition for divorce came to be filed by first plaintiff in M.C.No:40/1994 at Mysore which resulted in a decree of divorce being granted on 4-3-1996. She further contended that third plaintiff was required to take care of education of second plaintiff and settle her in life including performing her marriage, as she was unemployed. Hence, she claimed half share in the suit schedule property. It was further contended by her that sisters of third plaintiff were trying to intervene in the matter and 28 claiming a right over the suit schedule property on the strength of a bequest made in their favour by third plaintiff. On these grounds she sought for grant of half share in the suit schedule property and for maintenance from then first defendant i.e., third plaintiff.
26. Defendants 1 to 3 were served with suit summons. The then first defendant appeared and filed his written statement as already noticed herein above. The then second defendant also filed her written statement denying the plaint averments and she set-up a counter-claim over the suit schedule property contending her father late Sri.Gopalaiah being the absolute owner of the suit schedule property had bequeathed the same in favour of his children i.e., third plaintiff and defendants 2 and 3 under a registered will Dt: 19-12-1992. Hence, she sought for grant of 1/3rd share in the suit schedule property.
27. First defendant who is the husband of first Plaintiff got himself transposed as third plaintiff, contending interalia that on account of decree of divorce granted in favour of first plaintiff by the jurisdictional civil court, he had remarried and on demise of 29 his second wife he had reconciled with his first wife and they are now living together. Third plaintiff claimed exclusive and absolute right, title and interest over the suit schedule property on the ground he had purchased the same. Undisputedly, on such transposition taking place there has been no amendment to the plaint except to the extent of amending the cause title of the plaint by first defendant being arrayed as third plaintiff. RE: POINTS 1 AND 2:
28. These two (2) points are taken up together for consideration as finding that may be recorded on any one point may over-lap. The suit schedule property originally belonged to Sringeri Mutt and father of third plaintiff and defendants - 2 and 3 i.e., Late Sri. Gopalaiah was residing in the said property as a tenant under Sringeri Mutt and paying rents to the Mutt. In the year 1975, a registered sale deed came to be executed by Sringeri Mutt in favour of third Plaintiff namely son of Late Sri Gopalaiah conveying the suit schedule property in favour of third plaintiff. It is also not in dispute said late Sri Gopalaiah was a District and Sessions Judge and had retired in the year 1966 on 30 attaining the age of superannuation. Post retirement, he got enrolled as an advocate and continued his practice in Law at Bangalore.
29. Third plaintiff along with plaintiffs 1 and 2 have been contending that suit property is the self acquired property of third plaintiff and undisputedly sale-deed dt: 10-09-1975 Exhibit P-1 is executed by Sringeri Mutt in favour of third Plaintiff. Whereas, second defendant i.e., elder sister of third plaintiff has been contending that suit schedule property was purchased by their father in the name of third plaintiff and he had bequeathed same in favour of defendants-2 to 3 under a Will dated 19-12- 1992. It is in this background learned trial judge had framed issues 1, 6 and 7. Issue Nos. 1 and 7 were answered in the negative namely, trial Judge held that both plaintiffs and defendants-2 and 3 had failed to prove they are absolute owners of suit schedule property or deceased Sri Gopalaiah having bequeathed the suit schedule property in their favour respectively. However, issue No.6 came to be answered in the affirmative namely, it was held that suit schedule property was 31 the absolute property of deceased Sri B Gopalaiah on the ground that prior to registration of the sale deed - Exhibit P-1 in the name of third plaintiff, Sri Gopalaiah was a lessee of the suit property under Sringeri Mutt and same has been admitted by all the parties and as such, it is Sri Gopalaiah who had purchased the suit schedule property. It would be apt and appropriate at this juncture itself to extract the recitals of the sale-deed - Ex.P- 1 which would have bearing on our discussion. In Exhibit P-1 - sale-deed, it is recited to the following effect:
"...by way of sale to and in favour of the purchaser all the schedule property absolutely and by way of sale and the purchaser who is already in possession of the property as lessee under the vendor shall be entitled to continue to be in possession and enjoyment of the property as absolute owner thereof from the date of this indenture."
30. Recitals in the sale deed prevails over any other plea contrary to it. The above extracted recital of the sale deed reflects that purchaser is in possession of the property sold and purchaser of suit schedule property is third plaintiff. It is nowhere indicated in the said sale deed that father of the purchaser was in possession of the property sold. It is no doubt true PW-2 (third Plaintiff) in his cross-examination dated: 23-02- 32 2013 has admitted that his father was a tenant under Sringeri Mutt. However, at the same time the assertion of the third plaintiff that he had paid the sale consideration for purchase of suit schedule property could not have been ignored by the trial court or lost sight of it as has been done. In other words there was no evidence much less overwhelming evidence available before the trial court to arrive at a conclusion that consideration for purchase of the suit schedule property had either not flown from third plaintiff or had flown from father i.e., late Sri Gopalaiah to the vendor - Sringeri Mutt. In fact, trial judge has held P.W.-2 (third plaintiff) has admitted that he was a student at the time of registration of sale deed in the year 1975 and as such, it has to be presumed that he could not have paid the sale consideration amount reflected in Ex.P-1. It would be appropriate to extract the so called admission of PW-2 dated:23- 2-2013 to either accept the finding so recorded by the trial judge or to reverse the said finding. The relevant admission of PW-2 reads:
" Presently I am working xxxxxx around 1998. It is true that, from 1956 till upto purchase of the suit schedule property by me my father was a tenant 33 under Shringeri Shankar mutt. It is true that, as my father was a tenant in the suit property the Shringeri Mutt has offered to purchase the same by my father. I did my Master degree in Aeronautic Engineering . From 1968 to 1969 I was getting scholarship of IISC and from 1969 to 1970 I was getting scholarship of NAL fellowship. My IISC scholarship was Rs.250/ per month and scholarship NAL fellowship was Rs.300/- per month. I have not produced any documents before the court in that regard, as it is not necessary. I joined my service after my Master's degree in 1970. I have not produced xxxxxxx in my name."
31. A plain reading of the above statement of PW-2 would indicate two facts: (1) undisputedly PW2 was getting scholarship of from 1968 on wards, and (2) PW-2 had joined service in the year 1970 itself i.e., five (5) years prior to sale deed - Ex.P-1 and drawing good salary. Thus, it cannot be said that PW-2 was without any income. In fact, consideration that has flown from purchaser to the vendor under Ex.P-1 is Rs.25,000/-, though sale consideration agreed to be paid is Rs.59.905. In other words entire consideration amount as agreed has not flown from purchaser to vendor. However, the moot question would be whether, PW-2 had sufficient funds to the tune of Rs.25,000/- paid to the vendor by third plaintiff as on the date of registration of sale deed Ex.P-1. This, factual aspect has not at all received 34 the attention of the learned trial Judge. In fact, available evidence is silent. Yet, another aspect which seems to have not been answered by the learned trial judge, relates to the proved income of the father Sri.Gopalaiah. Learned trial judge has proceeded to hold that, father Sri B Gopalaiah, being a retired District Judge and a practicing Advocate till 1988 must have possessed sufficient income to purchase suit schedule property in the name of third plaintiff. It may be true he had sufficient income. However, that by itself would not be sufficient to hold that consideration amount as reflected in Ex.P-1 had flown from Sri Gopalaiah to the vendor. As noticed herein supra, recitals in the sale deed prevails over any other plea vide Section 92 of Evidence Act.
32. Yet another material documentary evidence available on record, which has been ignored or not considered by the trial judge while answering issues 1 and 6 is order dated 3-11-1992 passed in W.P.No:25298/1992, which writ petition had been filed by late Sri.Gopalaiah seeking writ of Mandamus to the then Bangalore Municipal Corporation (now BBMP) to enter his name 35 in the Katha Register in respect of suit schedule property. Writ court declined to grant the relief on the ground that in the absence of any registered document or a declaration of title by the competent civil court regarding vesting title to the property, applicant's name cannot be entered in the katha register. It came to be held:
"From that is stated in the endorsement it is clear that by mere consent the khatha cannot be be transferred so as to confer ownership on applicant, in the absence of any registered document or a declaration of title by the competent Civil Court, I do not find anything wrong in the said endorsement as it reflects the correct position of law."
33. Thus, ownership claim of late Sri.Gopalaiah over the suit schedule property had been declined by the writ Court during his life time itself. He had not sought for any declaration of his title to the suit property as its owner. On the other hand, his claim came to be rejected and he was fully aware as to what remedy he had to avail. Yet, he did not initiate proceedings for declaration of his title. In the absence of any declaration of title sought for by Late Sri.Gopalaiah, trial court could not have jumped to a conclusion that, he was the absolute owner of the 36 suit schedule property. Hence, we are of the considered view that trial court has committed a serious error in not considering the available evidence in proper perspective or has proceeded to ignore the available material evidence.
34. We have carefully considered the written statement initially filed by plaintiff No.3 (originally defendant No.1) whereunder he has pleaded in paragraph 20 of his written statement to the effect that he purchased the suit schedule property prior to marriage with plaintiff No.1 and he had allowed defendant No.1 (his elder sister - Smt.Sarasamba) to reside in the first floor of the suit schedule property after being constructed by her. He further states that as regards ground floor and the second floor of the suit schedule property is concerned, the dispute would be between himself and the second defendant (defendant No.1 herein) and as such plaintiffs No.1 and 2 would have no right over the suit schedule property. Thereby, he has denied the rights of plaintiffs-1 and 2 over suit schedule property. In other words, he has denied the right of plaintiffs - 1 and 2 over the suit schedule property. Be that as it 37 may. In this appeal, we are not deciding the interse claims or dispute between plaintiffs-1 and 2 with third plaintiff. That apart, plaintiffs-1 and 2 have also conceded in this appeal, that third plaintiff is the absolute owner of suit schedule property. If there is an interse dispute, it is left open to them to get it resolved in appropriate proceedings.
35. We have also considered the written statement filed by the defendant No.1 (originally second defendant) whereunder she has contended that since 1st plaintiff has filed MC No.40 of 1994 on the file of the II Additional Civil Judge at Mysore, seeking dissolution of marriage between herself and plaintiff No.3, which petition came to be allowed on 04th March, 1996 by the trial Court she would not be entitled to any relief sought for in the instant suit. She has further contended that son of plaintiff No.1 and 3-Mr. Vivek Ram, had filed OS No.408 of 1996 on the file of the Civil Judge, Mysore seeking maintenance against plaintiff No.3 (originally defendant No.1) which came to be dismissed and as such, she has pleaded that plaintiffs are not entitled to any relief and they have filed the suit to knock off the 38 suit schedule property and to defeat the intention of her father as expressed under the Registered Will dated 18th May 1989 and Will dated 19th December, 1992.
36. In the instant case, trial Court has not considered the effect of original defendant No.1 being transposed as plaintiff No.3 and its impact on plaintiffs-1 and 2 claim, particularly in the background of written statement filed by the original first defendant, whereunder he had sought for dismissal of the suit. Trial Court neither framed any additional issues under the changed circumstances nor has recorded any findings with regard to factual aspects of the case pursuant to the reconciliation of plaintiff No.3 with plaintiff No.1. Hence, we are of the considered view that in the interest of justice, matter deserves to be remitted back to the trial Court for taking note of these developments subsequent to the commencement of litigation for arriving at a conclusion as to what would remain for being adjudicated.
37. Trial court while adjudicating issue Nos.1 and 6 has not taken note of several factors namely, admissions found in 39 the pleadings which came to be exhibited before it. For instance, in the present suit i.e., O.S.NO.677/2010, copy of the plaint filed in O.S.No.9383/2005 came to be marked through first plaintiff as per Ex.P-6 by way of further examination-in- Chief on 16.04.2013. Said suit had been filed by third plaintiff herein against his wife and daughter (plaintiffs-1 and 2 herein) to injunct them permanently from interfering with his possession of the suit schedule property. Said suit i.e., O.S.No.9383/2005 came to be filed by third plaintiff through his sister and power of attorney holder namely, second defendant (Smt.Sarasamba) herein. It is she who has affixed her signature to the plaint in O.S.No.9383/2005 and she has also filed an affidavit verifying the contents of the plaint to be true and correct. In the said suit, sole plaintiff therein who is none other than third plaintiff herein has categorically asserted in paragraph-7 to the following effect:
"7. The plaintiff further submits that the suit schedule property at Bangalore, the plaintiff is the absolute owner of the property with full right, title and interest. The title deeds are in the name of the plaintiff which was purchased by him much before the marriage which is a 40 premarital property. However, the defendants have claimed the said schedule property are before the American Court and therefore huge sum of 29,319.00 US $ have been awarded by the American Court and confirmed by the Appellant Court in America".
A plain reading of the above would clearly indicate that third plaintiff herein has categorically asserted that he is the absolute owner of the suit schedule property. First plaintiff has been cross examined and it has been elicited in the cross-examination dated: 20.04.2013 to the following effect:
"It is not true to suggest that the khata xxx office objections by her. It is correct O.S.9383/2005 was filed by the third plaintiff against me and my daughter seeking relief of injunction. It is correct the second defendant Sarasamba was the general power of attorney holder of the third plaintiff herein who was the plaintiff in the said suit."
In fact, aforesaid admission would come to the rescue of third plaintiff and trial court ought to have examined this evidence available on record and for reasons best known, it seems to have lost sight off. In fact, second defendant in the present suit i.e., Smt.Sarasamba in her cross-examination dated 11.03.2013 has clearly admitted that third plaintiff herein is the absolute owner of the suit schedule property. Her admission reads: 41
"According to me during 1990 xxx investing huge sum of Rs.15,00,000/- then. It is correct in para No.7 of the plaint filed in O.S.No.9383/2005, it is stated that the plaintiff is the absolute owner of the property with full right, title and interest and the title deeds are in the name of the plaintiff which was purchased by him much before the marriage which is a pre marital property and this plaint was signed by me as general power of attorney holder of the plaintiff in the said case B.G.Shiva Prasad. To a suggestion put to this witness that in the said suit, she has admitted in clear terms that B.G.Shiva Prasad is the absolute owner of the suit property since purchased by him this witness say that that suit was filed by him against his estranged wife during the period and whatever said in the said plaint, has been said by the plaintiff and I put my signature as a general power of attorney holder of the plaintiff. It is false xxx on the instructions of my brother B.G.Shiva Prasad.
(emphasis supplied by us) The aforesaid admission of D.W.1 would also tilt in favour of third plaintiff which has been completely ignored by the trial court. In fact this evidence available on record seems to have been ignored by the trial court while adjudicating issue Nos.1 and 6. This court being first appellate court and having all trappings of the court of first instance, would have gone into merits and demerits of said evidence by examining them, but, for the reason that third plaintiff having filed an application for recording of additional evidence by filing I.A.No.3/2016 enclosing 42 six (6) documents (photocopies), since one of the original had already been produced on 01.07.2015, which requires recording of oral evidence also and marking of the documents. Evidence that may be tendered by the parties would have bearing on adjudication of issue Nos.1 and 6. Hence, we desist from recording any finding on this aspect.
38. That apart, the subsequent events that has taken place during the pendency of the suit/appeal can also be taken note of. In fact, the rights of parties would get crystallized on the date the suit is instituted and same set of facts will have to be considered. As already observed herein above, the subsequent event which took place during the pendency of the suit, namely first defendant getting himself transposed as third plaintiff and thereby altering his status and he (transposed third plaintiff) not giving up his earlier pleadings namely, pleas putforward in the written statement filed as first defendant and its impact on the prayer sought for in the suit ought to have been examined by the trial court. These are the aspects, which ought to have been taken note of by the trial while adjudicating 43 the rights of the parties, insofar as the suit schedule property is concerned.
39. The Hon'ble Supreme Court in the case of GAIV DINSHAW IRANI AND OTHERS v. TEHMTAN IRANI AND OTHERS reported in AIR 2014 SC 2326 at paragraph-34 of the judgment has held as follows:
"34. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or one the entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson vs. State of Alabama followed in Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury. The aforementioned cases were recognized by this Court in Pasupuleti Venkateswarlu vs. The Motor and General Traders wherein he stated that:xxx Mahindra & Mahindra Ltd."44
40. We are also conscious of the fact that it is settled principle of law that the remand of the suit should not be resorted to by the first appellate court when material evidence is available before it. Suffice to say that first appellate court would adjudicate the suit in one way or the other and remanding the case would not be justified only because reasoning adopted by the trial court in some respects was erroneous. However, the Hon'ble Supreme Court in the case of ATMA S. BERAR v. MUKHTIAR SINGH reported in AIR 2003 SC 624 has held as follows:
"The power of the court to take note of subsequent events is well-settled and undoubted. However, it is accompanied by three riders. Firstly, the subsequent event should be brought promptly to the notice of the court; secondly, it should be brought to the notice of the Court consistently with rules of procedure enabling court to take note of such events and affording the opposite party an opportunity of meeting or explaining such events; and thirdly, the subsequent event must have a material bearing on right to relief of any party."
(emphasis supplied by us) 45
41. We have also carefully examined the reasoning given by Trial Court with regard to issues, which appears to us that the Trial Court has not considered or examined subsequent events namely, transposition of defendant No.1 as plaintiff No.3 and in this regard there is no finding recorded by the Trial Court. Indeed, in our opinion, this is an appropriate case where the provisions of Order XLI Rule 23-A of the Code of Civil Procedure deals with remand could be resorted to by this Court. In our considered opinion, the need to remand these appeals is considered necessary. To substantiate our view, we have gone through the grounds urged in the memorandum of appeal including the written statement filed by plaintiff No.3 (original defendant No.1), whereunder plaintiff No.3 has taken the stand which is otherwise necessary for adjudication of the lis between the parties on merits, and therefore, we are of the view that appeal requires to be remitted back to trial court by setting aside the judgment of the Trial Court.
42. It is established principle of law that an order under Order XLI Rule 23 and Rule 23-A of the Code of Civil Procedure 46 presupposes that if the decree is reversed in appeal and if re- trial is considered necessary, only then the power of remand is to be exercised by the Appellate Court. The said Rule does not authorize this Court to reverse the decree as a matter of course whenever the Court thinks that on some issues re-trial is considered to be necessary. In order to reverse the decree, the finding given by the Court on the issues are to be considered and are to be set aside before the decree, as such, could be reversed in appeal. When doing so, there are no powers with the Appellate Court to reverse the decree in appeal. Rule 23-A of Order XLI of the Code of Civil Procedure provides that where a suit has been disposed of otherwise than on preliminary point and the decree is reversed in appeal, and the re-trial is considered necessary, the appellate court shall have the same powers as it is under Rule 23 of Order XLI of the Code of Civil Procedure. In fact, the decree of the Trial Court with regard to all the issues mentioned above requires to be set aside and though we are of the firm opinion that the finding recorded by the Trial Court is devoid of merit in view of the fact that Trial Court has not considered the subsequent event to transposition 47 of defendant No.1 as plaintiff No.3 and documents provided by way of additional evidence would have bearing on the rival claims of ownership over suit schedule property. We are also aware of the fact that reversal is not a matter of mere formality but of substance. The pleadings of the plaintiff No.3 and the stand taken by the plaintiff in the suit as well as before the Court is otherwise contrary, which leads to arrive at the conclusion by the Court that, without remitting the matter to the Trial Court, it is impossible to decide the lis between the parties.
43. After considering the entire material on record, particularly, with regard to the cross-examination of PW1, we have formed an opinion that the interest of justice demands remand of case to the Trial Court for framing and trial of specific issue on the averments made by the defendant No.1 (original defendant No.2) since the defendant No.1 was transposed as plaintiff No.3. The written statement of defendant No.1 (plaintiff No.3) and defendant No.2 (defendant No.1) are vital for just decision in the matter. We are also conscious of the fact of the powers of the Appellate Court are not inhibited by acts or 48 emotions of the parties. Rule 25 of Order XLI of the Code of Civil Procedure empowers the appellate Court to frame an issue and remit it to Trial Court which has been omitted to be framed and tried by the Trial Court and which appears to the appellate court essentially to the right decision of the case. Order XLI Rule 23A confers power on the appellate court to remand the whole suit for re-trial. In our considered opinion, this is a fit case where this Court should exercise powers under Order XLI Rule 25 read with Rule 23A of the Code of Civil Procedure.
44. We are also conscious of the law declared by the Hon'ble Supreme Court in catena of decisions whereunder it is held unless there are compelling reasons to remit the matter to the trial Court, it is not desirable to resort to exercise the power under Order XLI Rule 23 or 23A or 25 of the Code of Civil Procedure, which is likely to cause complete damage to the interest of the parties. It is also settled principle that remand is permissible only when the appellate Court in the interest of justice feels that the remand is just and appropriate and that the appellate Court cannot arrive at a specific finding on the issues 49 based upon material evidence available on record. Equally it is accepted proposition of law that, remand of a case is a serious matter and can be ordered in exceptional circumstances where there had been no complete and effective adjudication of the dispute and the judgment on hand is one such. We say so for the simple reason, material evidence available on record had been ignored or not at all considered. Hence, we reiterate that judgment under challenge is an exceptional case for remand for the reasons stated above. It is also relevant to note the law declared by the Hon'ble Supreme Court in the case of REMCO INDUSTRIES WORKERS HOUSE BUILDING CO-OPERATIVE SOCIETY v. LAKSHMEESHA M. AND OTHERS reported in AIR 2003 SC 3167 wherein it has been categorically held that, circumstances warrant invocation of power of remand under Order XLI Rule 25 are the powers of the appellate Court which are not inhibited by the acts or omissions of the parties. Order XLI Rule 25 empowers the appellate Court to remit the case for trial which has omitted to frame an issue, and further it appears to the appellate Court that it is essential to arrive at a right decision of the case.
50
45. In addition to the law enunciated by the Hon'ble Supreme Court stated supra, we are of the considered view that in the case on hand, trial Court has failed to take into consideration the subsequent event of transposition of third plaintiff, while deciding the suit and same has resulted in deciding the appeal on merits also. Hence, remand of the suit, on the limited question is to be determined by the trial Court, is inevitable under the peculiar circumstances which has unfolded as aforestated and in spite of all efforts, it is not possible to decide the disputed question one way or the other on the basis of the available evidence. In this context, it is noticed that non- framing of an issue and finding having not been recorded by the trial court on the basis of available evidence, if the judgment of the trial court is allowed to stand, it would result in rights of the parties being truncated and as such, it would warrant for remanding the matter back to the trial court for adjudication afresh. In the title suit, parties are aware of their position in law, while making their pleadings before the trial Court. In the instant case, the third plaintiff has filed written statement before the order of transposition as defendant No.1 and had adduced 51 evidence before the Court claiming the absolute right over the suit schedule property in entirety, excluding other defendants, which fact was brushed aside by the Trial Court while adjudicating the rights of the parties. In that view of the matter, remand necessitated or intended for fresh consideration with reference to such ground and unless properly analysed, possibility of brazen errors creeping in cannot be ruled out.
46. We have also considered the grounds urged by both the parties in their respective appeals in detail as well as arguments addressed at Bar with regard to failure on the part of the trial Court ignoring the subsequent event of transposition of plaintiff No.3 in the suit. We have also carefully scrutinised the averments made in the written statement by the defendant No.1 (prior to transposition as plaintiff No.3). This aspect of the matter is vital to adjudicate the suit effectively and completely by adverting to the evidence adduced by the parties. We are also supported by the ratio laid down by the Hon'ble Apex Court for remanding the suit to the trial Court as discussed above. It is apt to take recourse to the law declared by the Hon'ble 52 Supreme Court in DIVYA EXPORTS v. SHALIMAR VIDEO COMPANY reported in AIR 2011 SC 3063, wherein it was observed that if at all the appellate Court felt that the trial Court should have framed specific issue on the particular aspect, then it should have remanded the matter to the trial Court with a direction to frame such an issue and decide the suit afresh. The omission on the part of the appellate Court to adopt that course has resulted in manifest injustice to the appellant. Following the ratio laid down by the Hon'ble Apex Court as stated supra, we are of the considered opinion that, this is a fit case where this Court should exercise power under Order XLI Rule 25 read with Rule 23A of the Code of the Civil Procedure.
47. We are also conscious of the fact about law laid down by the Hon'ble Supreme Court in the case of DWARKA NATH PRASAD ATAL v. RAM RATI DEVI reported in AIR 1980 SC 192 would be squarely attracted to the facts on hand, whereunder, it is stated that decision of the Trial Court on one issue was reversed in appeal and was disposed of on merits then this might possibly result in denial of opportunity to adduce 53 evidence on other issues, the other course would be to order remand. The Hon'ble Supreme Court in the case of P. PURUSHOTTAM REDDY AND ANOTHER v. M/S. PRATAP STEELS LTD. reported in AIR 2002 SC 771 has held as follows:
"It is only in exceptional cases the Court may exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by O.20 R.3 or O.41, R.31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by R.23 or R.23A or R.25 of the CPC."
48. In that view of the matter, the judgment and decree dated 31st July, 2013 passed in OS No.677 of 2010 by the VIII Additional City Civil Judge, Bangalore deserves to be set aside and entire case deserves to be remitted to the Trial Court for deciding the specific issue on the effect of transposition of defendant No.1 as plaintiff No.3 and the rights of the parties thereunder. The Trial Court shall recast the issue as indicated above and after giving additional opportunity to both the parties 54 to lead additional evidence on the issue involved, decide the suit afresh in accordance with law on other issues as well, since finding recorded on fresh issue would have bearing on other issues as well. All the observations made by this Court hereinabove being confined to disposal of these appeals, shall not in any way, influence the trial and decision making in the subject suit except to the extent the trial Court having been ordered to take note of certain facts.
RE POINT NO.3:
49. In the light of findings recorded hereinabove, I.A.No.3/2016 is remitted to the trial court for adjudication and it is needless to state that in the light of liberty having been granted to both parties, trial court shall consider the application for additional evidence favourably. Point No.3 is answered accordingly.
For the reasons aforestated, we proceed to pass the following:
55
JUDGMENT
(i) RFA No.1522/2013 and RFA No.1795/2013 are allowed in part.
(ii) Judgment and decree dated 31st July, 2003 passed in O.S. No.677 of 2010 by the Court of XVIII Additional City Civil Judge, Bengaluru is set aside and suit O.S.No.677 of 2010 is remitted back to the trial Court for disposal afresh by keeping in mind the observations made herein above.
(iii) I.A.No.3/2016 filed by the appellants under Order 41 Rule 27 stands remitted back to trial Court for consideration on merits and both parties are at liberty to lead additional evidence and trial court shall consider such prayer made if any, favourably. We also make it clear that issues involved in the suit shall not take away jurisdiction of the trial Court to formulate any other issues or recasting the issues already framed.
(iv) The suit shall be decided by the trial Court expeditiously and at any rate, within an outer 56 limit of six (6) months as the lis is pending since 2003.
(v) All pending applications stands consigned to records.
(vi) No order as to costs.
Registry is directed to remit the original records to trial court forthwith.
SD/-
JUDGE SD/-
JUDGE UN/lnn/sp