Karnataka High Court
Shri.Neelakant vs Shri.Shankar on 23 June, 2022
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RSA NO.100691 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100691 OF 2016 (DEC/INJ-)
BETWEEN:
1. SHRI.NEELAKANT
S/O BASALINGAPPA INDISHETTAR,
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: MAGYANKOPP-591106,
TALUKA KHANAPUR,
DIST: BELAGAVI.
2. SHRI.VISHAL BASALINGAPPA INDISHETTAR
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: MAGYANKOPP-591106,
TALUKA KHANAPUR,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI. C. S. SHETTAR FOR SRI.JAGADISH PATIL, ADVOCATE)
AND:
1. SHRI.SHANKAR SIDDAPPA CHUNGADI,
AGE: 55 YEARS,
OCC: AGRICULTURE and SERVICE,
R/O: BAZAR GALLI, M.K.HUBLI-591118,
TALUKA BAILHONGAL, DIST: BELAGAVI.
2. SHRI.SHRIDHAR SIDDAPPA CHUNGADI,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: BAZAR GALLI, M.K.HUBLI-591118,
TALUKA BAILHONGAL, DIST: BELAGAVI.
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RSA NO.100691 of 2016
3. SMT.SHANTAWWA
W/O BASVANNEPPA RAHUT,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O: BAZAR GALLI, M.K.HUBLI-591118,
TALUKA BAILHONGAL,
DIST: BELAGAVI.
4. SMT.KASHAWWA
W/O SIDDAPPA CHUNGADI,
AGE: 82 YEARS, OCC: HOUSEHOLD,
R/O: BAZAR GALLI, M.K.HUBLI-591118,
TALUKA BAILHONGAL, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. H. R. GUNDAPPA FOR SRI.GIRISH C. KATTIMANI,
ADVOCATE FOR C/R1-R4.)
---
THIS RSA IS FILED U/SEC.100 R/W 42 RULE 1 OF CPC,
1908, AGAINST THE JUDGEMENT & DECREE DTD:05.08.2016
PASSED IN R.A.NO.238/2012 ON THE FILE OF THE XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DTD:10.10.2012, PASSED IN O.S. NO.29/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE AT KHANAPUR,
PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This Regular Second Appeal is filed by the defendants, assailing the judgment and decree dated 05.08.2016 passed in R.A.No.238/2012 on the file of the XI Addl. District and Sessions Judge, Belagavi (hereinafter referred to as 'the First Appellate 3 RSA NO.100691 of 2016 Court', for brevity), confirming the judgment and decree dated 10.10.2012 passed in O.S.No.29/2010 on the file of the Senior Civil Judge, Khanapur (hereinafter referred to as 'the trial Court', for brevity), decreeing the suit of the plaintiffs.
2. For the sake of convenience, the parties to this appeal shall be referred to in terms of their status and ranking before the trial Court.
3. The plaInt averments are that, the plaintiffs are the children of Siddappa Shivalingappa Chungadi. Plaintiffs 1 to 3 are the children of Siddappa Shivalingappa Chungadi and plaintiff No.4 (Smt. Kashawwa). Father of the plaintiffs No.1 to 3 died on 20.07.2007 leaving behind the suit schedule properties and thereafter, the plaintiffs succeeded to the estate left behind by the said Siddappa Shivalingappa Chungadi. It is the case of the plaintiffs that, during his life time, the father of plaintiffs No.1 to 3 - Siddappa Shivalingappa Chungadi was managing the property as Karta of the joint family and therefore,, disputed the interference made by the defendants. It is further stated in the plaint that, the said Siddappa Shivalingappa Chungadi used to take the assistance of Smt. Sharadabai (grandmother of defendants) as she came from 4 RSA NO.100691 of 2016 the agricultural family. It is further stated in the plaint that, taking the advantage of the fact that her son Basavalingappa was not well versed in the agricultural aspects, the said Sharadabai was managing the said agricultural lands belonging to said Siddappa Shivalingappa Chungadi. Therefore, it is the case of the plaintiffs that, the said Sharadabai has no manner of right title of interest insofar as suit schedule properties and the defendants being the grandchildren of said Sharadabai, are interfering with the suit schedule property and as such, the plaintiffs filed O.S. No.29/2010 before the trial Court seeking the relief of declaration and consequential relief of permanent injunction against the defendants. The plaintiffs have also challenged the release deed dated 26.07.2008 said to have been executed by Sharadabai, as not binding on the plaintiffs.
4. On service of notice, defendants entered appearance and filed detailed written statement and admitted that the plaintiffs No.1 to 3 are the children of Siddappa Shivalingappa Chungadi and plaintiff No.4. It is the specific defence of the defendants that, one Sri.Neelakantappa Indishettar married Smt. Sharadabai and the said Neelakantappa Indishettar died. Sri. Neelakantappa had a son - Basalingappa Indishettar and the defendants are the children of the 5 RSA NO.100691 of 2016 said Basalingappa Indishettar. It is further stated in the written statement that, the father of the plaintiffs No.1 to 3 Siddappa Shivalingappa Chungadi had developed a relationship with Sharadabai (grandmother of the defendants) and the said Siddappa has given certain properties to said Sharadabai. It is also stated that, the said Siddappa Shivalingappa Chungadi has sold certain properties to Smt.Sharadabai. However, no sale deed was registered by the said Siddappa Shivalingappa Chungadi in favour of Sharadabai and however, the said Sharadabai was in actual possession of the suit schedule properties. It is further averred in the written statement that, in terms of the release deed dated 26.07.2008, defendants became the owner in possession of the suit schedule land and accordingly, it is the case of the defendants that the plaintiffs have made a false claim with regard to suit schedule property.
5. The trial Court based on the pleadings on record formulated the issues for its consideration. In order to establish their case, plaintiffs have examined 3 witnesses as PWs.1 and 3 and got marked 21 documents and the same were marked as Exs.P1 to P21. Defendants have examined 2 witnesses as DWs.1 and 2 and got marked 53 documents and the same were marked as Ex.D1 to 6 RSA NO.100691 of 2016 D.53 The trial Court after considering the material on record by its judgment and decree dated 10.10.2012, decreed the suit filed by the plaintiffs and declared that the release deed dated 26.07.2008 executed by the said Sharadabai is not binding on the plaintiffs. Feeing aggrieved by the same, defendants have preferred R.A.No.238/2012 on the file of the First Appellate Court and the appeal was resisted by the plaintiffs.
6. The First Appellate Court after considering the material on record, by its judgment and decree dated 05.08.2016, dismissed the appeal, consequently, confirmed the judgment and decree dated 10.12.2012 passed in O.S.No.29/2010. Feeling aggrieved by the same, defendants have presented this Regular Second Appeal.
7. This Court by order dated 14.03.2017 admitted the appeal and formulated the following substantial questions of law:
i. Whether the courts below after having found that the respondents/plaintiffs were not in possession of the suit properties on the date of suit and that they did not seek the relief of possession from the appellants, were justified in holding that they are entitled to possession of the suit property from the appellants? ii. Whether the I Appellate Court committed an error in law in dismissing the appeal without deciding the 7 RSA NO.100691 of 2016 application filed under Order XLI Rule 31 of Code of Civil Procedure?
8. I have heard Sri. C. S. Shettar for Sri. Jagadish Patil, learned counsel appearing for the appellants and Sri. H. R. Gundappa for Sri. Girish C. Kattimati, learned counsel appearing for the respondents 1 to 4.
9. Sri. C. S. Shettar, learned counsel appearing for the appellants contended that, the appellants herein have filed an application before the First Appellate Court under Order 41 Rule 27 of Code of Civil Procedure and produced certain documents to establish that the schedule properties were registered in the name of Sharadabai and those documents have not been considered by the First Appellate Court. It is further argued that there is no whisper about the application filed by the appellants under Order 41 Rule 27 of Code of Civil Procedure in the impugned judgment and decree passed by the First Appellate Court and ignoring the same amounts to procedural irregularity and the same requires to be set right in this appeal. In this regard, he refers to the substantial question of law No.(ii) referred to above.
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RSA NO.100691 of 2016
10. Per contra, Sri. H. R. Gundappa, learned counsel appearing for the respondents - plaintiffs sought to justify the impugned judgment and decree passed by the Courts below.
11. Having heard the learned counsel appearing for the parties, in the light of the submission made by Sri. C. S. Shettar learned counsel appearing for the appellants that the First Appellate Court ignored the application filed by the appellants under Order 41 Rule 27 of Code of Civil Procedure, I have carefully examined the original records made available from the First Appellate Court, wherein the appellants have filed the application under Order 41 Rule 27 of Code of Civil Procedure on 28.03.2016, for which the learned Presiding Officer has put his signature. In that view of the matter, following the law declared by the Hon'ble Apex Court in the case of Jatinder Singh and another Vs. Mehar Singh and others. reported in AIR 2009 SC 354, wherein paragraphs 4 and 5 it is held as under:
"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of 2 3 additional evidence under Order 41 Rule 9 RSA NO.100691 of 2016 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.
5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."
12. It is also relevant to extract the dictum of the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179, wherein the Hon'ble Apex Court while interpreting Order 41 Rule 31 of Code of Civil Procedure has held that it is the duty of the First Appellate Court to give finding on all the aspects raised by before the said Court as the First Appellate Court is the last Court for giving finding on the facts. In that view of the matter, non-consideration of the application filed by the defendants/appellants herein by the First Appellate Court requires reconsideration by the First Appellate Court as the same would derogate the provisions contained under Order 41 Rule 31 of Code of Civil Procedure. In the result, I find force in the submission made by Sri. C. S. Shettar, learned counsel appearing for the 10 RSA NO.100691 of 2016 appellants and the substantial question of law No.(ii) favours the appellants herein and accordingly, appeal is remanded to the First Appellate Court for fresh consideration on merits. In the result, I pass the following:
ORDER i. Appeal is allowed;
ii. Judgment and decree dated 05.08.2016 on the file of the XI Addl. District and Sessions Judge, Belagavi, is set aside and the matter is remanded to the First Appellate Court to decide the appeal in terms of the observations made above; iii. First Appellate Court is directed to dispose of the appeal within an outer limited of six months from the date of receipt of this judgment and it is open for the parties to urge all the contentions available for them in the circumstances of the case; iv. It is also made clear that, since the parties to the appeal are represented through their learned counsel before this Court, it is convenient to direct 11 RSA NO.100691 of 2016 the parties to appear before the First Appellate Court on 04.08.2022 without waiting further notice from the First Appellate Court.
Sd/-
JUDGE gab