Karnataka High Court
Anantha B S vs Narasimhachar K V on 6 July, 2012
1 RSA 134/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF JULY, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.134 OF 2010
BETWEEN:
1. B.S. Anantha,
Aged about 69 years,
S/o. Late Raja Iyengar,
2. Sunanda,
Aged about 62 years,
W/o. B.S. Anantha,
3. B.S. Nagaraj,
Aged about 38 years,
S/o. B.S. Anantha,
All are R/at:
Nagalakshmi Electronics,
Varthur Village,
Bangalore South Taluk. ... APPELLANT/S
[By Sri. K. Suman, Adv.]
AND:
1. K.V. Narasimhachar,
Major in age,
S/o. Late K.V. Venkatanarasimhachar,
2. K.V. Shashi Kumar,
Major in age,
S/o. Late K.V. Venkatanarasimhachar,
3. K.V. Prasanna,
Major in age,
S/o. Late K.V. Venkatanarasimhachar,
2 RSA 134/10
All are R/at:
Srinivasa Mandira Temple,
Balepet,
Bangalore-560 053. ... RESPONDENT/S
[By Sri. S.R. Khamroz Khan, Adv. for C/R.]
***
This RSA is filed u/Section 100 of CPC against the
Judgement & Decree dated 17.12.2009 passed in R.A.
No.171/2007 on the file of the Prl. District Judge,
Bangalore Rural District, Bangalore, allowing the appeal
filed against the Judgement and Decree dated 31.07.2009
passed in O.S. No.445/1997 on the file of the Prl. Civil
Judge, (Sr.Dn.), Bangalore Rural District Bangalore.
This RSA coming on for Final Hearing, this day, the
Court delivered the following:
JUDGMENT
The appellants have challenged the Judgment and Decree of the first appellate Court, allowing the appeal and granting a decree for possession by setting aside dismissal of the suit filed by the respondents.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as they were referred in the original proceedings, for the sake of convenience. 3 RSA 134/10
The respondents and deceased plaintiff No.1 instituted the suit praying for a decree for possession of the property bearing No.347/142 of Varthur village, measuring 25 x 40 ft. described in the schedule to the plaint. The suit site was purchased by K.V.Venkata Narasimhachar i.e., the husband of plaintiff No.1 and father of the plaintiff Nos.2 to 4 vide registered Sale Deed dated 20.01.1965. On his death, the name of the 1st plaintiff was entered in the record and she was paying the tax. She claims that her husband died on 31.08.1987, he constructed a house over the site in the year 1966 and the plaintiffs are in possession of the suit property till his death.
The 1st defendant is said to be the husband of the sister of plaintiff No.1. He was residing in the property adjacent to the suit property and having no manner of right, title or any interest, he interfered with the plaintiffs' peaceful possession and enjoyment of the suit property. Therefore, the 1st plaintiff instituted O.S. No.443/1991, whereas the 1st defendant instituted O.S. No.462/1991 seeking injunction. Both the suits were dismissed by the trial Court. It is at that point of time, the plaintiffs claimed that they were 4 RSA 134/10 dispossessed by the 1st defendant. In the circumstances, the plaintiffs instituted the present suit for possession.
The defendants 1 to 3 have filed their written statement denying the allegations made in the plaint and contended that they are in possession of the suit property and the 1st defendant is said to have constructed a house in the year 1966 and it is also their claim that the 1st defendant has perfected his title over the suit property by adverse possession. They have denied the possession of the 1st plaintiff and dispossession in the year 1966. The 1st defendant claims to have been in possession of the suit property continuously since from the year 1966 onwards till the date of the suit. On these grounds, they have sought for dismissal of the suit.
The trial Court framed as many as 8 issues and in the evidence, plaintiff No.3 was examined as P.W.1 and the documents Exs.P1 to 20 were got marked in their evidence. The 1st defendant examined as D.W.1 and 2 witnesses as D.Ws.2 and 3 and the documents Exs.D1 to 36 were got marked in their evidence. The trial Court after 5 RSA 134/10 hearing both the parties and on appreciation of the material on record, dismissed the suit.
Aggrieved by the Judgment and Decree, the plaintiffs approached the 1st appellate Court in R.A. No.171/2007. The said appeal came to be allowed on merit and granted a decree for possession, vide Judgment and decree dated 17.12.2009. Aggrieved by the Judgment and Decree of the first appellate Court, the defendants are in appeal before this Court.
3. This Court while admitting the matter, vide Order 01.02.2010 has framed a substantial question of law for consideration. Later, this Court, vide Order dated 11.06.2012 corrected the substantial question of law that framed on 01.02.2010 and also framed an additional substantial question of law consideration as follows:
Whether the suit having been decreed by the first Appellate Court on the basis of a statement made by the appellant in a suit for injunction filed by the appellant can be taken as an admission in decreeing the suit in light of the judgment of the Supreme Court in the case of Chikkamma Koteshwararao Vs. Chikkamma Subbarao, reported in AIR 1971 SC 1542?6 RSA 134/10
Additional substantial question of law:
Whether the first Appellate Court was justified in reversing the Judgment and Decree of the Trial Court and whether the appreciation of evidence by the First Appellate Court is capricious, biased and perverse?
4. I have heard learned counsel for the parties.
5. Learned counsel for the appellants would contend that the defendants have been in possession of the suit property since the year 1966 and acquired title by adverse possession to the knowledge of the true owner and a house was constructed by the 1st defendant in the suit property in the year 1966. Therefore, it is his claim that the 1st defendant has acquired title over the suit property by adverse possession. He further contends that the suit instituted by the plaintiffs is barred by time. It is also his contention that though the trial Court did not give any findings relating to the adverse possession claimed by the defendants, the first appellate Court has ignored the said fact and made a wrong observation that the plea of adverse possession is 7 RSA 134/10 negatived by the trial Court. He further contends that when the suit filed by the respondents was dismissed by the trial Court, an appeal by the defendants does not arise and that having taken up a contention before the first appellate Court relating to the construction of the structure over the suit property and also the plea of adverse possession, the first appellate Court has not at all referred the evidence and has not given a finding.
Hence, he submits that there is no appreciation of the evidence at all by the first appellate Court and it is a fit case to remit the matter to the first appellate Court to consider all the points raised in the first appeal. So also he submits that the trial Court has given a finding to the effect that the construction on the suit property is by the 1st defendant and the first appellate Court has not given its attention to the said finding so as to say as to who has put up the construction over the suit property.
Per contra, learned counsel for the respondents relying on an admission of the 1st defendant in O.S. No.462/1991 submits that possession of the defendants is permissive and therefore, there is no question so far as the plea of limitation is concerned. It is also his 8 RSA 134/10 submission that the construction over the suit property is by the husband of the 1st plaintiff in the year 1966 and therefore, he contends that the first appellate Court was justified in granting a decree for possession inclusive of the building on the site.
6. As could be seen from the Judgment of the trial Court, it has dismissed the suit and so far as the question of adverse possession is concerned, it has not given any finding on the ground that the suit is being dismissed. Furthermore, the trial Court has also given a finding that the construction over the suit property is by the 1st defendant. It is relevant to note that the appellants herein who are the respondents before the first appellate Court had a right to challenge the findings of the trial Court even without preferring any appeal. When the suit came to be dismissed, the appellants herein, who are the respondents before the first appellate Court have a right to take up all contentions in relation to the findings rendered by the trial Court and there is no necessity for them to either to file cross-objections or any appeal. Hence the conclusion of the first appellate Court that no appeal is preferred by the defendants on the said subject i.e., in 9 RSA 134/10 relation to adverse possession cannot stand to reason. Furthermore, the first appellate Court has observed that the trial Court on the aspect of the adverse possession has negatived the plea and this conclusion of the first appellate Court is also contrary to the finding of the trial Court, wherein it holds that the plea of adverse possession need not be considered as the suit is being dismissed. It is only para 15 and 16 of the Judgment of the first appellate Court of which run to one and half page within which the first appellate Court has held that the plea of adverse possession is not proved by the defendants. Furthermore, when the trial Court has concluded that the construction of the suit property is by the defendants, the question has to whether the plaintiffs are entitled to the suit site or inclusive of the building or not, is also a matter for consideration and the first appellate Court has not adverted to the said aspect. When the appellants have taken up a contention that they have been in continuous possession of the suit property since from the year 1966 adverse to the interest of the owner, the first appellate Court could have reappreciated the material placed on record by the parties with reference to the pleadings and then a 10 RSA 134/10 decision could have been taken. But, unfortunately, the 1st appellate Court has not referred to the oral evidence of the parties and also the documents. The first appellate Court has also not considered the question as to whether the finding of the trial Court relating to construction of the building by the defendants is to be accepted or not. So, in this context, if the reasons assigned by the first appellate Court are looked into, even the contentions which were raised by the appellants before the first appellate Court as well the respondents, have not been considered and though the defendants have produced numerous documents, except Ex.D33, no other documents have been referred to consider the plea of adverse possession.
7. In the first appeal, it is the duty of the first appellate Court to reconsider all the evidence that has been led by the parties and when the Judgment and Decree of the trial Court are being reversed, it has to assign consistent and cogent reasons and dispose of the appeal. But, unfortunately, no such effort has been made by the first appellate Court. Therefore, in this second appeal, rather it is difficult to say anything with regard to the finding on facts. In the circumstances, as 11 RSA 134/10 there is no appreciation of the evidence at all by the first appellate Court and the relevant contentions have not been considered, it appears just and proper to remit the matter to the first appellate Court with a direction to consider the evidence led by both the parties in the context of the rival contentions raised by them and then dispose of the appeal in accordance with law. At this juncture, no finding could be arrived at so far as the substantial question of law raised is concerned and so far as the additional substantial question of law is concerned, as there is no appreciation of the evidence by the first appellate Court, it has to be answered in affirmative and the matter has to be remitted back to the trial Court.
In the result, the appeal is allowed. The Judgment and Decree of the first appellate Court made in R.A. No.171/2007 dated 17.12.2009 is set aside. The matter is remitted to the first appellate Court to dispose of the appeal in accordance with law and in the light of the observations made above.
To avoid further delay, both the parties are directed to appear before the first appellate Court on 12 RSA 134/10 03.08.2012. The Office is directed to send the records forthwith to the first appellate Court.
As the appeal is of the year 2007, the first appellate Court is directed to dispose of the appeal within a period of 6 [six] months from the date of communication of the Order. Both the parties are at liberty to raise any questions relating to the matter before the first appellate Court.
Sd/-
JUDGE.
Ksm*