Karnataka High Court
Smt Ningamma vs Sri Thimmegowda Alias Kariyappa on 10 October, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC:36949
RSA No. 2373 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO.2373 OF 2007 (DEC/INJ)
BETWEEN:
1. SMT NINGAMMA
SINCE DEAD BY HER LRS.
1(a). SMT. INDIRAMMA,
W/O LATE SHANTHARAJU,
AGED ABOUT 43 YEARS.
1(b). SMT. SHANTHAMMA,
W/O LATE RAJU,
D/O LATE MUDALAGIRAIAH,
AGED ABOUT 55 YEARS.
1(c). SRI. VENKATAPPA,
S/O LATE MUDALAGIRAIAH,
Digitally AGED ABOUT 37 YEARS.
signed by B
LAVANYA APPELLANTS 1(a) TO 1(c) ARE
Location: R/AT CHANNENAHALLI,
HIGH
COURT OF WARD NO.25,
KARNATAKA JALAMANGALA ROAD,
RAMANAGARAM,
RAMANAGARA DISTRICT - 562 159.
2. SMT. JAYAMMA,
W/O SHIVALINGAIAH,
AGED ABOUT 56 YEARS.
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RSA No. 2373 of 2007
3. SMT. BYRAMMA,
W/O CHANNABEERAIAH,
AGED ABOUT 40 YEARS.
4. SMT. CHOWDAMMA,
SINCE DECEASED BY HER LRS.
4(a). SMT. JAYAMMA,
D/O CHOWDAMMA,
AGED ABOUT 30 YEARS,
ALL ARE R/AT
CHANNENAHALLI KOOTAGAL HOBLI,
RAMANAGARAM TALUK,
BANGALORE RURAL DISTRICT
...APPELLANTS
(BY SRI. M.S. VARADHARAJAN, ADVOCATE FOR
SRI. S. RAJU, ADVOCATE)
AND:
1. SRI THIMMEGOWDA ALIAS KARIYAPPA,
DEAD BY HIS LRS.
1. SMT. NAGAMMA,
D/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 53 YEARS,
R/AT SHANUBHOGANAHALLI VILLAGE,
KUTAGAL HOBLI,
RAMANAGAR TALUK.
2. SRI. NAGESH,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 50 YEARS,
R/AT KURUBARAHALLI VILLAGE,
KASABA HOBLI, RAMANAGARA TALUK.
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RSA No. 2373 of 2007
3. SMT. JAYALAKSHMAMMA,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 48 YEARS,
R/AT TAGACHAGERE VILLAGE,
KASABA HOBLI,
CHANNAPATNA TALUK.
4. SRI. RAMAKRISHNA,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 45 YEARS,
R/AT KURUBARAHALLI VILLAGE,
KASABA HOBLI,
RAMANAGARA TALUK.
5. SMT. SOWBHAGYA,
D/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 43 YEARS,
R/AT THENKANAHALLI VILLAGE,
MALUR HOBLI,
CHANNAPATNA TALUK.
6. SRI. RAMU,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 41 YEARS,
R/AT KURUBARAHALLI VILLAGE,
KASABA HOBLI,
RAMANAGARA TALUK.
7. SRI. JAYARAMA,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 38 YEARS,
R/AT KURUBARAHALLI VILLAGE,
KASABA HOBLI,
RAMANAGARA TALUK.
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RSA No. 2373 of 2007
8. SRI. SHIVARAMU,
S/O LATE THIMMEGOWDA KARIYAPPA,
AGED ABOUT 35 YEARS,
R/AT KURUBARAHALLI VILLAGE,
KASABA HOBLI,
RAMANAGARA TALUK.
...RESPONDENTS
(BY SRI. M.C. JAYAKIRTHI, ADVOCATE FOR R1(2),
R1(4), R1(5), R1(7) AND R1(8);
R1(1), R1(3) AND R1(6) ARE SERVED AND
UNREPRESENTED)
--------
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 31.01.2007 PASSED IN
RA.NO.51/2006 ON THE FILE OF THE PRL.CIVIL JUDGE
(SR.DN.) RAMANAGARAM, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
19.04.2006 PASSED IN OS.NO.111/1996 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND ADDL.JMFC., RAMANAGARAM,
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCITON.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiffs being aggrieved by the Judgment and Decree dated 31.01.2007 passed by the Prl. Civil Judge(Sr.Dn.) at Ramanagaram in R.A.No.51/2006, whereby the First Appellate Court allowed the appeal preferred by the respondents/defendants against the Judgment and Decree dated 19.04.2006 passed by the Civil Judge(Jr.Dn.), Ramanagaram in O.S.No.111/1996, whereby the learned trial -5- NC: 2023:KHC:36949 RSA No. 2373 of 2007 judge decreed the suit of the appellants/plaintiffs.Therefore, the appellants/plaintiffs are aggrieved by the judgment of the First Appellate Court in allowing the first appeal and dismissing the suit of the plaintiffs.
2. The parties to the proceedings shall be referred to as per their status before the Trial Court for the sake of brevity.
3. It is the case of the plaintiffs Late.Lakshmamma and plaintiff No.4 Chowdamma are two wives of Late Moogaiah. Plaintiffs No. 1 to 3 are the daughters of deceased Lakshmamma, who was the first wife of Late Moogaiah, S/o. Late Jogaiah. Since there was no male issue to the first wife, late Moogaiah married plaintiff No.4 Chowdamma. But, however, no male issue was born to said Chowdamma, the second wife of Late Moogaiah. Deceased Lakshmamma predeceased her husband Moogaiah long ago. Agricultural land bearing Sy.No.177(old), New No.267 measuring to an extent of 4 acres 20 guntas was purchased by Late Moogaiah under a registered sale deed dated 28.12.1948 vide Ex-P2 from one Tirumalegowda S/o. Channe Gowda for valid sale consideration. -6-
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4. It is contended that since Late Moogaiah had no male issues, he settled the land during his life time and out of 4 acres 20 guntas, 1 acre 20 guntas was given in favour of Chowdamma-plaintiff No.4 1 acre each in favour of plaintiff Nos.1 to 3. However, the khatha of the said property continued to remain in the name of Late Moogaiah. Late Moogaiah was looking after the land in question for personal cultivation, but due to the fact that he suffered old age ailments, the land in question was given to the original defendant who is none other than son of vendor of late Moogaiah to cultivate the land and hand over 50% of the food grains and haystack grown in the land in question as the contribution and the original defendant was only acting as a supervisor and a labour, nothing more than that. It is also stated in the plaint that the property was given to defendant on 'Vara' (lease) basis.
5. This being the state of affairs, pursuant to the death of Late Moogaiah, the plaintiffs filed an application to the Tahsildar, Ramanagaram to effect mutation of their names as per the shares given by late Moogaiah to them and on the basis of the said application, the Tahsildar effected mutation declaring the shares of the plaintiffs, pursuant to which, the -7- NC: 2023:KHC:36949 RSA No. 2373 of 2007 plaintiffs decided to terminate the so-called 'Vara' to the defendant and consequently conveyed their decision to the defendant in the month of March 1996 and thereafter, the defendant being agitated by the said termination of 'Vara', started interfering with the peaceful possession and enjoyment of the suit schedule property which perforced the plaintiff to file a suit for the relief of declaration declaring the plaintiffs to be the absolute owners of the suit schedule property and for consequential relief of permanent injunction restraining the defendant and his agents from interfering with the suit schedule property of the plaintiffs.
6. The defendant on appearance filed a detailed written statement contending that the suit filed by the plaintiffs is not maintainable in law and denied all other contentions made by the plaintiffs in the plaint. It was contended by the defendant that the alleged sale deed, if any, in favour of the plaintiffs' father was a concocted and got-up document which was not acted upon and that Late Moogaiah never acquired any right, title and interest over the suit schedule property, so also, neither Moogaiah nor the plaintiffs were in possession and never acquired right, title and interest over the suit schedule -8- NC: 2023:KHC:36949 RSA No. 2373 of 2007 property. In effect, the defendant denied the averments made in the plaint in toto. It was further pleaded that this land bearing Sy.No.267 is an ancestral property of the defendant and his step-brothers and father Tirumalegowda amongst other properties. It was further pleaded that about 42 years ago, an oral partition had taken place, thereby dividing the properties of Late Tirumalegowda and 1acre 20 guntas had fallen to the shares of each of sons of Tirumalegowda. Accordingly, 1 acre 20 guntas towards south fell to the share of this defendant. Similarly, his other brothers and step brothers got 1 acre 20 guntas on the other sides of the remaining property.
7. Defendant very specifically pleaded he was not a 'Vara' tenant of any portion of the land in Sy.No.267 or any part of the suit schedule property at any time as contended and alleged by the plaintiffs. On the basis of these pleadings, the defendant sought for dismissal of the suit.
8. On the basis of the pleadings before the Trial Court, relevant issues came to be framed by the learned Trial Judge which are as under:-
1) Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?-9-
NC: 2023:KHC:36949 RSA No. 2373 of 2007
2) Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule property?
3) Whether the plaintiffs prove the alleged interference by the defendant over the suit schedule property?
4) Whether the defendant proves that the suit is barred by law of limitation?
5) Whether the defendant proves that this court has no pecuniary jurisdiction to try this suit?
6) What Decree or Order?
9. In order to substantiate the issues and establish the case, the plaintiffs adduced evidence and the first plaintiff examined herself as PW-1 and one Lingaiah examined himself as PW-2. The plaintiff got exhibited 11 documents in the form of Exs-P1 to P11, whereas, on behalf of defendant, his son Nagesh being the Power of Attorney examined himself as DW-1 and got marked seven documents in the form of Exs-D1 to D7.
10. On the basis of the material evidence both oral and documentary and upon hearing the arguments of learned counsels for the plaintiffs as well as defendant, the Trial Court answered issues Nos.1 to 3 in the affirmative and negatived issues Nos.4 and 5 and decreed the suit of the plaintiffs by
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 declaring that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property. The defendant was also restrained by an order of permanent injunction from interfering with the peaceful possession and enjoyment of plaintiffs over the suit schedule property. Being aggrieved by the judgment and decree passed in favour of the plaintiffs by decreeing the suit, the defendant challenged the same in the first appeal in R.A.No.51/2006 questioning the correctness and legality of the judgment rendered by the Trial Court.
11. Upon reconsideration, re-appreciation and re-analysization of the entire materials on record, both oral and documentary and the impugned judgment of the Trial Court, the First Appellate Court framed the following points for consideration:-
1) Whether the plaintiffs are the owners in possession of the suit property as on the date of the suit as alleged?
2) Whether there is interference by the defendant with the plaintiffs' possession and enjoyment over the suit property as alleged?
3) Whether the appeal is fit to be allowed?
4) What Order or Decree?
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12. The First Appellate Court upon consideration of the entire materials on record and the arguments addressed by both learned counsels for the plaintiffs as well as defendant, negatived points for consideration No.1 and 2 and allowed the appeal of the defendant and consequently set-aside the judgment and decree passed by the Trial Court and dismissed the suit of the plaintiffs. It is this judgment of the First Appellate Court which is questioned and challenged by the plaintiffs in this second appeal contending that the judgment and decree passed by the First Appellate Court setting aside the judgment and decree by the Trial Court and dismissing the suit is illegal, perverse and patently arbitrary and has raised the substantial questions of law for consideration before this Court and thereby seeks this Court to interfere with the judgment rendered by the First Appellate Court, set aside the same and affirm the judgment and decree passed by the Trial Court on the substantial questions of law raised by the appellants/plaintiffs.
13. Upon consideration of the arguments addressed by the learned counsel for the appellants/plaintiffs and learned counsel for the respondents/defendants, this Court at the stage
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 of admitting the appeal framed the following substantial question of law for consideration in this appeal:-
a) Whether in the facts and circumstances of the case, the First Appellate Court is justified in setting aside the Judgment and Decree dated 19.04.2006 in O.S.No.111/1996 and consequently dismissing the suit on the premise that the plaintiffs had not proved the deed of sale dated 28.12.1948 at Ex-P2 by producing the evidence to believe that land bearing Sy.No.177 has become sy.No.267 ?.
14. I have heard learned counsel for the plaintiffs Sri. M.S. Varadharajan, for Sri. S. Raju, appearing for the appellants/plaintiffs and learned counsel Sri. M.C. Jayakirthi, for respondents No.1(2), respondent No.1(4), respondent No.1(5), respondent No.1(7) and respondent No.1(8). Respondent No.1(1), respondent Nos.1(3) and respondent No.1(6) are served and unrepresented.
15. It is the vehement contention of learned counsel for the plaintiffs that the appellate court committed a serious error in holding that the plaintiffs have failed to prove their title over the suit schedule property, despite the fact that the defendant
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 in his written statement has taken a plea that the sale deed was not acted upon, which would mean that the defendant had admitted the execution of the sale, but has failed to prove as to how it was acted upon, thereby, it was burden on the defendant to prove this fact as to how the sale deed was not acted upon. Learned counsel further contended that the Appellate Court committed an error in holding that the plaintiffs failed to prove as to when Sy.No.177 became Sy.No.267, thereby, the defendant's contention that he is in possession and enjoyment of Sy.No.267 came to be accepted. It is further contention of learned counsel for the plaintiffs that the boundaries in the sale deed do not tally with the boundaries given in the plaint, thereby, giving rise a doubt as to the identity of the property of the plaintiffs, which may not be correct for the reason that the boundaries given in the plaint was on the basis of the boundaries that existed as on date of filing of the suit in the year 1996 and it is not necessary that the boundaries would remain the same from 1948 till 1996. Learned counsel further contended that the First Appellate Court has erred in coming to the conclusion that the suit schedule property is to an extent of more than 6 acres,
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 whereas, the recital in the sale deed, the property purchased was 4 acres 20 guntas. Learned counsel further contends the Appellate Court committed an error in accepting the case of the defendant by holding that the defendant proved his title and possession over the suit schedule property in his occupation in Sy.No.267, whereas, there is absolutely no oral and documentary evidence produced by the defendant to show that the defendant is in possession and enjoyment of the property bearing Sy.No.267 except to the extent of the statement pleaded in their written statement. So also, with regard to the partition having been effected by the father of the defendant and to an extent of 1 acre 20 guntas fallen to the share of the defendant and his step-brothers each has not been established or proved by placing any material before the Court, except the self-serving statement made in the written statement.
16. Learned counsel further contends that the First Appellate Court has accepted the plea of the defendant, whereas, the defendant has not raised any plea with regard to the identity of the suit schedule property and its extent along with its boundaries, which came to be taken up for the first time before the appellate court and so also no pleading was
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 made before the Trial Court. It was further contended by learned counsel for the plaintiffs that the defendant relied on the statement made by the plaintiffs that the defendant was put in possession of the suit schedule property on 'Vara' basis, thereby, the plaintiffs have admitted the possession of the defendant over the suit schedule property and holding that the plaintiffs have not proved as to when they took possession back from the defendants, the First Appellate Court has committed an error in not taking into consideration the fact that the physical possession of the suit schedule property remained with the plaintiffs and the defendant was only given permission to cultivate and cut the crops and to give 50% crops grown and 50% haystack which has been corroborated by RTCs and oral evidence adduced by PW-2 and PW-3.
17. Learned counsel further contends that though the plaintiffs have made a statement in the plaint with regard to the suit schedule property having been given on 'Vara' basis to the defendant, that by itself cannot be taken seriously as a whole to decide the outcome of the suit as sometimes the pleadings are drafted by the counsels where certain terminology may be loosely used. The entire plaint averments
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 and the pleadings will have to be taken as a whole rather than taking few words to decide the case which is contrary to law of pleadings. Learned counsel further contends that the First Appellate Court has not appreciated the materials on record including the pleadings and has not taken into consideration the fact that the defendant is the tenant of the plaintiffs in respect of Sy.No.177(old) and New Sy.No.267. The First Appellate Court has also failed to take into consideration the pleadings in the plaint, wherein, at para 6 of the plaint, the plaintiffs have described the defendant to be in possession of the suit schedule property as a supervisor and labour only to provide contribution to the extent of 50% food grains and haystack and nothing more than that. This aspect of the matter has been ignored by the First Appellate Court and thereby has rendered the judgment causing miscarriage of justice to the plaintiffs. Apart from this, it is contended by learned counsel for the plaintiffs that there are several discrepancies in the evidence adduced by the defendant and as also the admission to the effect that the southern side of the suit schedule property is in possession of the defendant including DW-1 stating on oath that there was no partition in the family. On the basis of these contentions,
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 learned counsel for the plaintiffs canvases before this Court that there is substantial questions of law that arises for consideration before this Court with regard to the First Appellate Court having gone beyond the pleadings made in the Trial Court and having ignored the materials on record including Ex-P2 sale deed produced by the plaintiffs to show that Sy.No.177(old) and New Sy.No.267 measuring to an extent of 4 acres 20 guntas being sold by the father of the defendant late Tirumalegowda and the plaintiffs being in absolute peaceful possession and enjoyment of the property, having given in possession of the same to the defendant only to cultivate as a supervisor and labour and hand over 50% of the food grains and haystack. On these grounds, learned counsel for the plaintiffs seek to allow the second appeal by delving into the substantial questions of law framed by this Court vide order dated 01.04.2022.
18. This being the state of affairs, the plaintiffs have also filed an application I.A.No.1/2022 before this Court on 28.02.2022 under Order 41 Rule 27 r/w section 151 CPC for production of additional documents and to adduce additional evidence. Three documents have been produced alongwith the
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 application viz., 1) certified Xerox copy of the survey Tippani book in respect of Sy.No.177 having become Sy.No.267. 2) Certified Xerox copy of survey sketch of Gomala Sy.No.177 changed as Re.Sy.No.267 numbering two pages and 3) Certified Xerox copy of details of new survey numbers along with village map pertaining to Sy.No.177 and 267 of Mojebiligumba, Sammaturamanagaram, Ramanagara Taluk containing four pages. By virtue of this application, the plaintiffs are making out a case that Sy.No.177 became Sy.No.267 measuring to an extent of 4 acres 20 guntas in which the plaintiffs are in peaceful possession and enjoyment of the suit schedule property, which documents were unavailable with the plaintiffs at the time of the suit and before the First Appellate Court and after tracing the same are now seeking to produce these records which will decide the case as it is the crux of the matter as to whether Sy.No.177 became Sy.No.267 in due course of time. Objections to the said application are not filed in writing, however, learned counsel for defendants orally objects to the said application being barred by time and not maintainable at this late stage of second appeal and no material is placed before this Court as to why those documents
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 could not be produced either before the Trial Court or before the First Appellate Court and also learned counsel for the defendants contends that the documents that are placed as additional documents are without any basis or of pleadings.
19. Learned counsel for the appellants/plaintiffs relies on the following judgments in support of his case:-
1. Prem Singh and others v. Birbal and others, reported in (2006) 5 SCC 353.
2. Revanna Devaru v. Dr. A. V. Ranga Rao and other, reported in AIR 1952 Mysore 119.
3. Hanumappa Bhimappa Koujageri v. Bhimappa Sangappa Asari, reported in ILR 1996 KAR 1517.
4. Swamygowda Sannegowda v. Naranaiah and Others, reported in 2017(1) AKR 616.
20. Per-contra, learned counsel for the defendants vehemently contends that the suit filed by the plaintiffs is not maintainable in law as the plaintiffs have not come before the court with clean hands and even according to the plaintiffs, there is no proper description of the suit schedule property and no pleadings to the effect that Sy.No.177 was converted into
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 Sy.No.267 and as to on which date, the said conversion took place, neither is there any pleadings nor is there any material placed on record before the Trial Court or the First Appellate Court to show the conversion or changing of Sy.No.177(old) to Sy.No.267(new). Learned counsel further contends that even according to the plaintiffs, as per Ex-P2, there is absolutely no mention of Sy.No.267, so also, in Exs-D2 to D4 produced by the defendants. There is no mention of Sy.No.267 in the name of the father of the defendants Late Tirumalegowda. The plaintiffs have also not produced any documents to show that the plaintiffs are the owners of Sy.No.267. Learned counsel further contends that the boundaries described in Ex-P2 sale deed and in the plaint do not tally with each other.
21. Learned counsel further contends that even according to the plaint averments, the plaintiffs have given the property on 'Vara' basis to the defendant, but, however, there is no termination of the lease and so also there is no pleading as to when the defendants got into possession and when the plaintiffs took possession from the defendants. Learned counsel further contends that the theory floated by the plaintiffs falls flat on the ground with regard to Sy.No.177 having been
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 converted to Sy.No.267 for the reason that Sy.No.177 is still in existence and the same is not deleted from the revenue records. He further contends that if the case of the plaintiffs is accepted, then the question of Sy.No.177 continuing in the revenue records would not arise as the same has been converted, as per the plaintiffs, to Sy.No.267. Learned counsel further contends that there is no illegality or perversity in the judgment rendered by the First Appellate Court as it has considered all the materials on record and the arguments addressed by both the parties and taking into consideration all the aspects put forth by the parties, the First Appellate Court has rightly come to the conclusion that the Trial Court committed an error in decreeing the suit of the plaintiffs and held that the plaintiffs have not been able to prove the fact as to when they took possession from the defendants after the alleged termination of tenancy, thereby, the judgment rendered by the First Appellate Court is not tainted with any illegality or perversity for this Court to consider the substantial question of law, as according to the defendants, there is no substantial question of law that arises for consideration in this second appeal.
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22. Learned counsel for the defendants further contends that this Court is dealing in the second appeal under section 100 of CPC and this is not the first appeal to consider the facts of the matter and evidence adduced by the parties by re- appreciating and re-analysizing the materials on record. He also contends that in second appeal, the scope vested under section 100 CPC is very limited and narrow. Even if this Court comes to an opinion that there could be third view or third opinion apart from what is stated by the Trial Court and the First Appellate Court, this Court in second appeal cannot put forth its third opinion to reverse the finding of the First Appellate Court which is the last court of fact finding. He also contends that nothing prevented the plaintiffs from relying on the documents which are produced as additional documents before this Court, at an earlier point of time or amending pleadings in the plaint, as canvassed before this Court.
23. Learned counsel for the defendants relies on the following judgments in support of his case:-
1. Union of India v. Ibrahim Uddin and Another reported in (2012) 8 SCC 148.
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2. Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and Others, reported in (2017) 3 SCC 702.
24. Having heard learned counsel for the plaintiffs and learned counsel for the defendants and having perused the original records and after giving thoughtful consideration of the entire material on record including the vehement submissions of learned counsels for both parties on the substantial question of law framed by this Court on 01.04.2022, it has to be seen as to whether the plaintiffs have been able to make out a case to establish that Sy.No.177(old) has been changed and converted to Sy.No.267(new) which is the crux of the matter.
25. It is no doubt true that this Court while dealing in second appeal under section 100 CPC is not called upon to re- appreciate the evidence and express its third opinion, if any, unless there is some perversity, illegality or ignorance by either of the Courts below to any relevant issue and facts in issue. In the present case, the Trial Court has decreed the suit of the plaintiffs, whereas, the First Appellate Court has reversed the decision of the Trial Court by setting aside the judgment and decree and dismissing the suit of the plaintiffs. As stated
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 earlier, the entire case of the plaintiffs boils down to the point as to whether Sy.No.177 measuring to an extent of 4 acres 20 guntas purchased by the plaintiffs' father Late Moogaiah from the father of the defendant Late Tirumalegowda which is produced at Ex-P2 would establish the title of the plaintiffs for granting the relief of declaration and consequently for the relief of permanent injunction. While considering these aspects, it would also be relevant to note the defence taken by the defendants in the written statement with regard to the execution of the sale deed Ex-P2 by the father of the defendants Late Tirumalegowda in favour of father of the plaintiffs Late Moogaiah. In the written statement, the defendants has taken a plea that the sale deed, so executed, is a concocted and got-up document and therefore, the father of the plaintiffs Late Moogaiah never acquired right, title and interest over the suit schedule property and so also he was never in possession and consequently, did not acquire right, title and interest.
26. This inference in the written statement filed by the defendant can be drawn to a conclusion that though the defendant has not categorically admitted the sale deed-Ex.P2,
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 he has termed it as got-up and concocted document. Hence, it can be inferred that the existence of Ex.P2 is not seriously disputed.
27. The crux of the matter would be as to whether Sy.No.177 which is shown in Ex.P2 has been later converted and changed into Sy.No.267, whether both Sy.Nos.177 and 267 are one and the same or are they two different properties and whether Sy.No.177 still exists in the revenue records, despite the conversion of Sy.Nos.177 and 267. To overcome and sort- out this issue and the substantial question of law framed by this Court, the plaintiffs filed an application under Order XLI Rule 27 of CPC seeking to produce additional documents to be considered in this case and to adduce additional evidence to show that Sy.No.177 has been later on converted and changed into Sy.No.267, strangely, objections to this application is not filed. However, learned counsel has orally objected to the said application on the ground that any application filed for production of documents under Order XLI Rule 27 of CPC cannot be considered without there being proper and sufficient pleadings pleaded in the plaint. It is also contended that in the second appeal, at a belated stage, if an application under Order
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 XLI Rule 27 of CPC for production of additional documents is filed accompanying with proper explanation for non-production and non-filing of the said documents and when there are no such pleadings, such application should be rejected out-right by the Court.
28. According to the Indian Evidence Act, 1872 (for short, 'the Act), 'facts in issue' means and includes─ "any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows."
The explanation to the definition 'facts in issue' reads as under:
"Explanation.─Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue." 'Evidence' means and includes─ "(1) all statements which the Court permits or requires to be made before it by witnesses, in
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 relation to matters of fact under inquiry, such statements are called oral evidence;
(2) All documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
" "Proved".─A fact is said to be proved when, after considering the matters before it, the Court either believe it to exist, or considers its existence so probable that a prudent man ought, under circumstances of the particular case, to act upon the supposition that it exists."
Section 4 of the Act deals with 'May presume', 'Shall presume' and 'Conclusive proof', which read as under:
"4. "May presume".─Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.
"Shall presume".─Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
"Conclusive proof".─When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 evidence to be given for the purpose of disproving it."
29. The production of Ex.P2 in the present case by the plaintiffs, which is marked without any objections, is the proof of the fact of its existence and the same will have to be proved on the basis of its contents until and otherwise it is disproved and rebutted by the defendant.
30. There is a presumption that the registered document is validly executed, therefore, prima facie, it would be valid in law. The onus of proof, thus, would be on a person, who leads evidence to rebut the presumption. In the present case, the defendant has not rebutted the said presumption of existence and execution of Ex.P2, though it is seriously contended that Ex.P2 talks about Sy.No.177, but the same does not show whether it is converted into Sy.No.267 or not. Therefore, making it all the more necessary to establish that whether there is conversion of Sy.No.177 into Sy.No.267 from the period when Ex.P2 was executed i.e. on 28.12.1948. This aspect and presumption of a registered document to be validly executed is reiterated in the judgment of the Hon'ble Apex
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 Court in the case of Prem Singh v. Birbal reported in (2006)5 SCC 353 at para-27, which reads as under:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
31. While dealing with an application under Order XLI Rules 27 of CPC, it is a general rule that the Appellate Court should not travel outside the pleadings of the trial Court and cannot take any evidence in appeal. Be that as it may, this is a general rule, but in exceptional circumstances, considering the facts and circumstances of each case, the discretion is vested with the Appellate Court to consider the additional evidence on the condition laid-down in this Rule, if it is found to exist. The conditional rule is that on the basis of the material evidence on record, if the trial Court or the first Appellate Court can pronounce a satisfactory judgment, then the question of exercising the discretion should be done in a cautious manner.
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.
32. Under Order XLI Rule 27 of CPC, the Appellate Court in its discretion, is entitled to allow such application for the purpose of finding out the truth of the matter to render justice to the parties. Even while exercising such a discretion, this Court will have to be circumspect in providing such discretionary relief only when there is some factual basis and foundation laid in the pleadings made by the plaintiffs in the plaint. It cannot be a method of fulfilling the vacuum created and for removal of lacuna already crept in the evidence by the parties. In the judgment relied on by learned counsel for defendants in the case of Union of India v. Ibrahim Uddin reported in (2012)8 SCC 148, the Hon'ble Apex Court, at para-47, has held as under:
"47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed."
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 At para-52 of the very same judgment, the Hon'ble Apex Court has held as under:
"52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause........."
33. Therefore, it is no more res integra that the application under Order XLI Rule 27 of CPC is a discretionary one vested with the Court to consider the same on the basis of the fact and circumstances of each case subject to the Rule that it is not alien to the pleadings made by the parties and already a foundation is been laid before the first Appellate Court. In the present case, Ex.P2-sale deed dated 28.12.1948 relied on by the plaintiffs with regard to their title and ownership over the suit schedule property showing Sy.No.177 and the plaint averments showing that Sy.No.177 is later on
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 converted and changed into new Sy.No.267, will have to be considered by the first Appellate Court.
34. As stated earlier, the scope of Section 100 of CPC is narrow and very limited and this Court will have to deal with only substantial question of law having been made out by the appellants-plaintiffs to entertain the appeal and not venture into re-appreciation and re-analysation of the factual aspects.
35. In the case of Ibrahim Uddin (supra) relied on by learned counsel for defendants, paras-59 and 60 reads as under:
"59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal this Court explained the terms "substantial question of law" and observed as under:
"13....The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of
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NC: 2023:KHC:36949
RSA No. 2373 of 2007
law of general importance, but also
substantial question of law arising in a case as between the parties. ... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having on bearing on the final outcome, will not be a substantial question of law. ... There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case."
(emphasis added)
60. Similarly, in Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., this Court for the purpose of determining the issue held:
"6. ... The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties...."
(emphasis added)
36. The ratio and the law laid down in the said case of the Hon'ble Apex Court is that the substantial question of law means not only the substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties and any question of law which
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 affects the final decision of that particular case is a substantial question of law as regards between those specific parties. Therefore, the substantial question of law is one which would directly and substantially affects the rights of the parties. Under such circumstances, if a particular aspect is not considered and if the plaintiffs having filed an application under Order XLI Rule 27 of CPC, it could be considered by which the substantial rights of the parties could be altered or changed, then the same would fall within the definition of substantial question of law of a particular fact and circumstances of the case. Hence, as held by the Hon'ble Apex Court, there is no straitjacket definition as to when a substantial question of law arises in a case as held in the case of SBI v. S.N.Goyal reported in (2008)8 SCC 92. It is further held by the Hon'ble Apex Court in the case of Ibrahim Uddin (supra) at para-70, which reads as under:
"70. There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 of CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 circumspection while exercising such jurisdiction.
In a second appeal, the Court frames the
substantial question of law at the time of
admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the Court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of final hearing of the appeal."
37. Therefore, the substantial question of law framed by this Court with regard to Ex.P2 dated 28.12.1948 having not been proved by the plaintiffs, as a consequence, the suit of the plaintiffs came to be dismissed, which would really have a bearing on the rights of the parties. Since the issue with regard to Sy.No.177 (old) having been converted into Sy.No.267 (new) has not been established by the parties before the first Appellate Court, the same has not been clearly adverted to by the first Appellate Court in view of lack of documents having not been produced by the plaintiffs.
38. Under the circumstances, it is apparently seen that the entire case of the plaintiffs rests on the fact that whether
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 Sy.No.177 (old) is converted and changed into Sy.No.267 and whether the plaintiffs have made out a case by establishing Ex.P2 dated 28.12.1948 as their deed of title to declare themselves to be the owners of the suit schedule property measuring an extent of 4 acres 20 guntas. Therefore, by allowing the plaintiffs to produce additional documents and witnesses to be examined to make out a case on their behalf under Order XLI Rule 27 of CPC, no new case would be made out by the plaintiffs which would be well within the prerogative of this Court i.e. within Rule 27 of Order XLI of CPC.
39. Considering the facts and circumstances of the present case, when Ex.P2 pertains to Sy.No.177, the plaint averments speaks about Sy.No.177 (old) and Sy.No.267 (new), it would be essential for the first Appellate Court to deal with such an issue and record a finding to that effect. I am of the opinion that since this is the crux of the matter, it would be pertinent and relevant to remand the matter back to the first Appellate Court by permitting the plaintiffs to produce the additional documents and adduce evidence, if any, including examination of witnesses to facilitate the first Appellate Court to arrive at a conclusive decision. Therefore, in my opinion, the
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 documents produced under this application under Order XLI Rule 27 of CPC would be essential for determination of the case and to decide the rights of the parties. To this limited extent, the matter is remanded back to the first Appellate Court only to consider the validity and relevance of the documents produced herein along with the application under Order XLI Rule 27 of CPC and the first Appellate Court shall record its reasoning and finding as to Sy.No.177, which is shown in Ex.P2 dated 28.12.1948 is later converted into Sy.No.267 (new).
40. In view of the discussions made hereinabove and the opinion expressed by this Court in this case, I deem it appropriate to allow the application under Order XLI Rule 27 of CPC and the matter requires to be remanded to the first Appellate Court for consideration of these documents to give a finding to the effect that whether Sy.No.177 (old) has got changed and converted into Sy.No.267 (new). The substantial question of law is answered accordingly. Hence, I proceed to pass the following:
ORDER
i) The appeal is allowed-in-part;
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NC: 2023:KHC:36949 RSA No. 2373 of 2007
ii) The matter is remanded back to the first Appellate Court to consider the documents produced along with the application under Order XLI Rule 27 of CPC;
iii) Parties are permitted to adduce evidence including the witnesses, if any;
iv) A reasonable opportunity shall be given to the defendants to rebut any such contention based on the documents produced;
v) The first Appellate Court shall give a finding to the effect that whether Sy.No.177 (old) is changed and converted into Sy.No.267 (new) and shall thereafter pass suitable order within an outer limit of six months from the date of receipt of a copy of this judgment;
vi) It is made clear that the first Appellate Court shall not expand the scope of a direction passed by this Court and it shall restrict its finding only as to whether Sy.No.177 (old) is changed and converted into Sy.No.267 (new);
vii) It is also made clear that if the first Appellate Court comes to a conclusion with regard to Sy.No.177 (old) is converted into Sy.No.267 (new), then the first
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NC: 2023:KHC:36949 RSA No. 2373 of 2007 Appellate Court shall also consider as to whether the plaintiffs have made out a ground for showing their valid and legal possession with regard to the suit schedule property by determining the vara (lease) and shall give a finding to that effect also, as the relief claimed in the suit is for the relief of declaration and consequential relief of permanent injunction;
viii) Ordered accordingly;
ix) Registry to return the original documents to the first Appellate Court.
Sd/-
JUDGE MN/LB