Karnataka High Court
Manjappa S/O Rudrappa Soolanavar vs Smt Gouramma W/O Kotrayya Kallimath on 4 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.5061/2009 (DEC/P.I.)
BETWEEN
1. MANJAPPA
AGED 36 YEARS
2. IRESHAPPA
AGED 33 YEARS
3. SOMAPPA
AGED 31 YEARS
4. NAGARAJ
AGED 29 YEARS
ALL ARE SONS OF RUDRAPPA
SOOLANAVAR
ALL ARE AGRICULTURISTS
R/O CHIKKERUR - YELLAPUR
TALUQ HIREKERUR DT. HAVERI
...APPELLANTS
(BY SRI.P.G.MOGALI, ADV.)
AND
1. SMT.GOURAMMA
W/O KOTRAYYA KALLIMATH
AGED 62 YEARS
2
2. GURUPADAYYA
S/O KOTRAYYA KALLIMATH
AGED 37 YEARS
3. VISHWANATH
S/O KOTRAYYA KALLIMATH
AGED 29 YEARS
4. RENUKAYYA
S/O KOTRAYYA KALLIMATH
AGED 23 YEARS
5. ANUPAMA
D/O KOTRAYYA KALLIMATH
AGED 37 YEARS
ALL ARE LEGAL REPRESENTATIVES OF
KOTRAYYA
S/O VEERABASAYYA KALLIMATH
R/O CHIKKERUR TALUK HIREKERUR
DISTRICT HAVERI.
... RESPONDENTS
(BY SRI AVINASH BANAKAR, ADV. )
RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD: 8/8/2008 PASSED IN R.A.NO:6/2006 ON THE
FILE OF THE CIVIL JUDGE (SR.DN) & ITENERATE, HIREKERUR,
PARTLY ALLOWING THE APPEAL FILED AGAINST THE
JUDGEMENT & ORDER DTD: 21/11/2005 PASSED IN
O.S.NO:21/1997 ON THE FILE OF THE CIVIL JUDGE(JR.DN) &
JFMC, HIREKERUR, DISMISSING THE SUIT FILED FOR
DECLARATION, PERMANENT INJUNCTION & MANDATORY
INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
Appellants are defendants in O.S.21/1997 pending on the file of Civil Judge (Jr.Dn.) & JMFC, Hirekerur. Respondents herein were plaintiffs in the said suit. Suit had been filed for the relief of declaration, permanent injunction and for mandatory injunction in respect of property as described in the schedule appended to the plaint and hand sketch appended which is signed by the learned Counsel for the plaintiffs on 15.1.1997.
2. According to the plaintiffs, the suit property consists of house and open space bearing VPC No.1366 of Yellapur Chikkerur Village. The property of the defendants consists of red tiled house with backyard bearing VPC No.1367 of the same village. According to the plaintiffs, the suit schedule property is in between the houses of plaintiffs and defendants. The houses of the plaintiffs and defendants are specifically indicated in the hand sketch appended to the plaint. The space indicated in letters "FKCG" is the property 4 belonging to the plaintiffs and is stated to be the part and parcel of the plaintiffs' property bearing VPC No.1366. It is the case of the plaintiffs that they were tethering cattle in the open space as it is their ancestral property.
3. The case of the defendants is one of the total denial of material plaint averments. It is averred that the property bearing VPC No.1367 measures 33ftx22ft East-West. The plaintiffs have no manner of right, title or interest over this open space. According to the defendants, there is wild fence in existence between the properties of plaintiffs and defendants from times immemorial and plaintiffs, with an oblique motive to destroy the evidence of demarcation have cut the fence. It is further averred that the property of defendants extends upto 15 feet in the East-West direction beyond their western "KC"Wall and plaintiffs in previous suit bearing O.S.No.67/1996 had pleaded that property of the defendants East-West measures 27 feet. In the present suit, they have pleaded inconsistently and therefore, plaintiffs are 5 estopped from pleading contrary to their own earlier suit. The plaintiffs are stated to have not mentioned boundaries or measurement of open space measuring FKCD purposefully, lest they would be exposed. According to them, the property of the defendant extends to upto 33 feet East-West and plaintiffs have specifically not mentioned the measurement. With these pleadings, defendants have requested for dismissal of the suit.
4. On the basis of the above pleadings, following issues had been framed by the trial Court:
a) Whether the plaintiffs prove that defendants are not having any kind of right over the suit property shown by letters FKCG ?
b) Whether the plaintiffs further proves that they are in lawful possession of the suit schedule property as on the date of the suit.
c) Whether plaintiffs prove that fixing of the window in KC wall by the defendants is illegal and is an obstruction by the defendants
d) Whether defendants prove that suit filed by the plaintiff is barred by principles of Res-judicata 6
e) Whether the defendants prove that suit of the plaintiff is hit by the principles of estoppel by conduct
f) Whether the defendants prove that this court has no pecuniary jurisdiction to try this suit
g) What order or decree ?
5. On behalf of the plaintiffs, Gouramma is examined as PW-1 and another witness has been examined and in all 2 exhibits have been marked. On behalf of the defendants, defendant No.3 has been examined as DW-1 and two other witnesses have been examined and 6 exhibits have been marked.
6. After analyzing the evidence and arguments advanced by the learned Counsel for the parties, the suit came to be dismissed after contest on 21.11.2005. Against the said judgment and decree passed in O.S.21/1997, regular appeal was filed under Section 96 of CPC in R.A.6/2006 before the Court of Civil Judge (Sr.Dn.), Ranibennur and Itenerate Court, Hirekerur. During the pendency of the suit, 7 an advocate had been appointed as Commissioner who is examined as DW-3 and his report is marked at Ex.D-3. The First Appellate Court has allowed the appeal with a direction to the office to draw decree as per the report of the Commissioner and hand sketch prepared vide Ex.D-3 and D-4. It is this judgment and decree, which is called in question in this appeal on various grounds as set out in the appeal memo.
7. After hearing the learned Counsel for the parties, the following substantial question of law is framed:
a) Whether the judgment and decree of the First Appellate Court is perverse and illegal for not framing proper points for consideration as per mandatory provisions of Order 41 Rule 31 of CPC ?
8. Perused the records. It is un-understandable as to how there could be a direction to the office of the First Appellate Court to draw decree on the basis of the report of the Commissioner and sketch prepared by the Commissioner. 8 The report and sketch prepared by the Commissioner appointed by the Court is only a piece of evidence and this has to be assessed in the light of other oral and documentary evidence placed on record in order to arrive at a conclusion. In this view of the matter, the very direction given by the First Appellate Court to draw decree based on Ex.D-3 and 4 is most confusing and not at all maintainable either in law or facts.
9. Apart from this, several grounds have been raised in the appeal. Nothing is mentioned about the grounds so raised in the impugned judgment passed in regular appeal. Proper points for consideration will have to be framed by the First Appellate Court keeping in mind the important grounds raised in the appeal filed under Section 96 of CPC. What should be the approach of the First Appellate Court under Order 41 Rule 31 of CPC has been well dealt at length by the Hon'ble Supreme Court in the case of Thakur Sukhpal 9 Singh Vs. Thakur Kalyan Singh & Anr., reported in AIR 1963 SC 146.
10. Order 41 Rule 31 of CPC specifically mandates about the contents of the judgment of the First Appellate Court. Sub Rule (a) of Rule 31 specifically provides for formulating points for determination. Sub Rule (b) of Rule 31 provides for decision thereon. Sub Rule (c) of Rule 31 mandates the First Appellate Court to give reasons for the said decision. Sub Rule (d) of Rule 31 mandates that whether the decree appealed from is reversed or varied, the relief to which appellant is entitled. The very operative portion of the judgment of the First Appellate Court is not clear as to what relief the appellant is entitled for except stating that the decree has to be drawn in accordance with Ex.D-3 and 4. The object of Rule 31 of Order 41 of CPC is to make it incumbent on the First Appellate Court to raise proper points for determination and to clear up and focus the attention of the Court and of the parties on the specific and rival contentions 10 which arise for decision. The provisions of Order 41 Rule 31 of CPC are mandatory and non compliance of these provisions cannot be construed as mere irregularity. The exact questions, which arise in the appeal and require determination must be stated in the judgment. It is not sufficient to formulate points as to whether the judgment of the trial Court is perverse or capricious.
11. In the present case, the 3 following points are formulated for consideration as found in the judgment of the First Appellate Court:
a) Whether the appellants prove that the trial Court has erred in dismissing the suit of the plaintiff in O.S.No.21/1997 on the file of C.J.(Jr.Dn), Hirekerur dated 21.11.2005?
b) Whether the appellant further proves that
the lowr court judgment is erroneous,
capricious, perverse and interference of this Court is required to set aside th same
c) Wht order or decree ?11
12. Both points (a) and (b) are bald and omnibus. Admittedly, the appellants had challenged the judgment of the trial Court raising many grounds. On what grounds, the First Appellate Court has upturned the well-considered judgment of the trial Court is not forthcoming. Even otherwise, as per the principles enunciated by the Hon'ble Supreme Court in Santosh Hazari, Vs. Purushottam Tiwari (dead) by Lrs reported in AIR 2001 SC 965, the First Appellate Court must come to close quarters and assign its own reasons, if it wants to upturn the well considered judgment of the trial Court. It has to assign or give reasons as to how the trial Court has gone wrong. In the present case, the learned Judge of the First Appellate Court has not at all raised proper points to upturn the well considered of the trial Court. It is very difficult to decipher as to what exactly are the reasons assigned by the First Appellate Judge to upturn the judgment. It will not be out of place to mention that the First Appellate Court, being the final Court of facts, has not at all properly reassessed the evidence in right perspective. 12
13. The evidence in civil case has to be assessed on the touchstone of intrinsic probabilities. No such attempt is made by the First Appellate Court. The entire focus of the First Appellate Court is on Ex.D-3 and 4, the report and the sketch submitted by the Commissioner.
14. Viewed from any angle, the judgment of the First Appellate Court is opposed to law, facts and probabilities and reasons assigned do not have any logic or rationale more particularly while upturning the judgment of the trial Court. It is suffice to state that the judgment of the First Appellate Court is contrary to the mandatory provisions of Order 41 Rule 31 of CPC and principles reiterated by Hon'ble Supreme court in the case stated supra. In this view of the matter, the judgment of the First Appellate Court has to be set aside and matter has to be remanded to the First Appellate Court to deal with the appeal afresh in accordance with law keeping in mind the observations made by this Court more particularly the provisions of Order 41 Rule 31 of CPC and principles 13 reiterated in the case of Santosh Hazari, Vs. Purushottam Tiwari (dead) by Lrs reported in AIR 2001 SC 965. Accordingly, the substantial questions of law is answered in the affirmative.
ORDER The appeal filed under Section 100 of CPC is allowed. The judgment and decree of the First Appellate Court is set aside. The matter is remanded to the First Appellate Court to deal with the appeal afresh in accordance with law keeping in mind the provisions of Order 41 Rule 31 of CPC and principles reiterated in the case of Santosh Hazari, Vs. Purushottam Tiwari (dead) by Lrs reported in AIR 2001 SC 965.
Parties shall appear before the First Appellate Court on 17.4.2014 without fail and they shall cooperate with the Court in disposal of the matter within six months thereafter.
SD/-
JUDGE.
DM