Smt H K Lakshmidevamma Dead By Lrs vs Smt Radha Bai Dead By Lrs on 11 January, 2010

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Karnataka High Court

Smt H K Lakshmidevamma Dead By Lrs vs Smt Radha Bai Dead By Lrs on 11 January, 2010

Bench: Anand Byrareddy

id

Umamam

Daughter of Krishnamurthy,

Major,

Residing at Rampura Extension,  
Sagar Town-577 -401. '

Re.-imam

Wife of Gopala Rao,
Prin"1a:'y Schooi Teacher,
Sandalwood Complex, A
Sagar Town~577 4G'«1_.:" _ 

Punyathama;  V
Son of Krisl"1«nva'H1urt__hy  ..
Major;   _
Co_1*p_o1'a:io11;E3:ani<._, *  "

};jn11ap'araT   _
E§hadravathifn '»_°a_": '

Parafn.a_tha1na,.

; 'Son of Kﬁishnzinauvrthyu.
.»  CF: = , .

«  T1*aVia:;p(1:_i Divisaon.
'  "Jog---.577 435.

APPELLANTS

{   Advocate)

i .

 V

  ...D'ead by Legai representatives:

H.N.Vasude\-=a Shenoy,
Aged 65 years,

8



" _ "i<I.ii'»Egj;6."E\{I21halaxm.i Hayes Road Cross,
_ " .__VRiC'i}fm111d:; '"i"0wn,
A  Bangal0}:e~25.

Qx'

Residing at Sri Rumpur Extension,
Sagar Tow-'n«~577 401.

H.N,Narayana Shenoy.
Aged about 64 years,
Residing at Keiadi Raod.
Saga1'Townm577 40}.

Srnmayaiaxmi.

Aged 62 years,  
Wife 0fLakshmika:__1tha Pai,..._  '
General Merchant,'    _ Vi  .. .
Old Dandeli, N.K.-581  A

  
Ager.i.i;1_b'0.1__1i5'?;,yea;:s;§  V' "
H;.'N0.27;CZ5m Main, hi
Bang;;icre--5é0  

' 5 :"n§..S unE£'n:_1_iS'hL1ni$i1og.
._ 'N E tfe <.>.1_' G. R.'S'hva-:ab'11L)g,

Aged abtmt 55 years.

H.N_nVE()haI1 Shenoy,

A 'ii'~../Xged 50 years,
' --. Residilig at Rampur Extensioli,

Sagar Town~577 403.

H.N.Madhus00dan Shen0y._
Aged 48 years.
Residing at Ran;gur Extension.



10.

Sagar T0wn--577 40%.

Smt.\/anitha Kamath,
Aged 46 years, 
Residing at "Manjunatha K_rupé;"

Dangre Colony,   '

Alta Dealer,
Mapusa--G0a.

Smt.KaEp:ma Kamz:th,_
Aged about 44 yearS,-  _ 

Residing at "Manjunat'ha   '

Dangre C()1(:my__,
Alta Dealer,  ' _ --_
Mapus;14GQ__af~--._..if-_ " Q  V" 

HV.N.Shi'v:£n.andna, ,  j
A'ged*a'b0:1t'  '
H.N'o_.4', ySwzJ;_h'i~--R0ad-.;.__  
Shant'h'-i._VNagar,~_ A " 

;BangaE_01'e-»~27'.' '

 AH  are the children of
V _ " 'H; i*<_._.aN»:iVg:-1p"p;:1,
" -_Hu'sbIz1_vn_d'Qf'Smt.Radha Bai.

 A nﬁnthhé Hegde.

S'c>.11'()f Narayana Hegde,

'T  ged 65 years.

"An/inda Hegde.

Son of Anzmtha Hegde,
Aged 25 years.

%



13. Abhijith,
Son of Anantha Hegde.
Aged 23 years,

14. Adarsha Hegde,
Son of Anantha Hegde.
Aged 21 years.

Respondents 11 to 14 are   .
Residing at "Sri Da'inodha.r"', " 
Door No.1 1 1, 977.    "
Samathadka, "
Darbe Postégi _. 3  _  -  "

Puttur,       ;'[',=...,1§:ESPO.NDENTS

(Shi'i.Dayana:1.d   Reispondent I, 2, 5 and 7)

.;. .g, . 4-, .-,
._. IL--' >}. ,_. .;\

This'--Riegu1air'  is filed under Section 100 of
Code of Civir ¥?rocedur'e. i1"9()8 against the judgment and decree

 daterdﬁ 16;{)8.2(}O"?--..'passed in RA.No.3o/()7 on the file of the
V ii'Addi'tioii--:i1 Civil Judge (Senior Division) and }MFC._._ Sagar,
 a1,1owing._ t12e'«.app_eal and setting aside the judgement and decree

'a,ared:f passed in O.S.No.35l/89 on the fiie of the

Prineii 31 iviimsaiff, Sa ar, reectin the suit for declaration and
_ P H ._ 8 8
possession. 2 

3  *   Appeai coming on for final hearing this day. the Court
" de~1_i_v_e;ed the following: --

JUDGMENT

Heard the Couugi for the parties.

This appeal coming on for admission, this (3-hurt pleased to formulate the question ofm1.a_w 2;s.iiitt3"~e'vyhetherV judgment ofthe first appeilate court

2. Before advertingto necessary to recount the This is the second round the respondent's suit having by the First Appeiiate Court as-.wei:1 as Speciai Leave Petition was filed before the Siu'p,reme. €_ou~::t: (lfilndiil. The respondent. who wais the «..peti'tii.o'iie:;;.Asought pe1"ir:i'ssit)1i to fiie uduitionai documents by way 'of ,3. "pieetitiijsjn before this court and sought permission to withdraw./the"Special Leave Petition. The same was accordingiy if Jdi.stti.iss.e'd-- withdrawn by an order, dated 25.2.2000 by the _i Supreme Court. Thereafter, a review petition having been filed "before this court in Review Petition No.237/2()0(), this court aliowed the review petition and set aside the judgment and decree 3 7 passed by this Court in RSA 990/1997 dated 6.9.i999 and rernatided the matter to the first appeiiute Court. with at diiection to receive the additional documents sought to be pi'_tj)'duc.e'd.._i3§';_th~e review petitioner by way of additional eviden_ee"*anid,toaconsider»b it the effect thereof, by either recordingaevigiencei'=oi'»the ;i:i2i1:rt.ie's::V'uy itself or calling for a finding orit._he..question oftitle ~behai*f.i' from the Trial Court, whiie pe--rm.it--tingA the ipartjesfi to adduce additional evidence, sinceiw.iti;ou.t.iithe r_ei.eeip.t"'o,f above document and the ;evidencejthe1'eot',.éiitwgvriuid.not be possible to renderjustice to the pui'tie_s{ It im thisiilfi---a,_c"kgi't'>und that the matter' vvas remitted to the ;fi.i'st.appel'i:1t_ei Court.

A C fiiistvappellaite Court, in turn, had remitted the matter to. theyTrieil"_~Co;i'rt which was required to dispose of the suit in j terms' of""t.he.tiirection of this court with relation to the additional fe-viderttce that may have been tendered and the effect it would hugve. on the question of title. The Trial Court, however, in its " enthusiasm. has reconsidered the entire pieadings and evidence 3 anew and has arrived at findings. which was totally inappo.sit-e to the directions issued by this court and has proceededlto the suit. The same having been challenig;ed._4by ah 2 before the First Appellate Court, noticed that the Trial Court has l".{4):'['i"él.CE€Cli.l|1..£tC'CQl'dElliCiéiWlEh the directions issued by this .--;'ou1't andiiithaitj4thei,First Aippeiillate Court, while ignoring the t'indings'~ onidthe vario.us__','.issues that were rendered by the {T rial-.Court, taken'--iu'pon§ itself to consider the aspect of titlie"7w.ith'i¥rei'etre't3Ce to the material documents and additionaldocuments produced. The First Appellate Court ;litavt.i.11g,_ ;:1'i*évV_eidi at its independent findings on the basis of material_doc.uinents and the evidence that was tendered, has ciciniciuded'it.hat"jthe vendors of the plaintiff had valid title to '.execute..the sale deed and therefore, the plaintiff is entitled to the ifisztiitiiproperty in terms of Exhibit P--l. it is this which is sought to i beiﬁchallenged in the present appeal.

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3. it is not in dispute that one of the additional doeuments that was sought to be produced was 21 certiﬁed 21 mooigeni. which was produced through PW--4. ---'jF:hevei'fe}:t ti_i*_rd"r scope of the document as regards ti1eWtit'le ﬁofp the_ilp"ié1ir1Vtit7ft' concerned. was a crucial aspect of the. matter, whicéhwvaté requ'ii.'ed.. to be considered by the First Appei'E»a:te Court; The plaintiff had filed .a':;ittit.ll"t§'r dlecl_lasfatE--t.m and possession and damages 0n..ti'.e_ grouijd he'iWas._th'e ljbwner of the property and that-he had»pure:hasedlith_e"same from the legal representatives Oil one Vert_l<atra0.,-_ i'W:i'tt).r:lW'ttS the moolgenidar under one whrtvv-was the original owner and has proceeded to atidress ».ri"er_tse.quence of the subsequent transfers and the subsetgtlent. evlertlts in addressing how the p1ai.ntif'fhas derived title. is ap'pa_rettt that while accepting Exhibit P-34, which is the _ lmpetrlgerti document and fmttt a reading of the same, the said i " -*dolcument which is in the nature of a perpetual lease deed. does contain a clause whicbgrohibited any kind of alienation in favour 10 of thi_rtl--parties. This, on the face of it. would indicate that there was no scope for alienation of the property in of Venkatrao and the plaintiff having claimed to have'.plu'rei:aseidi'v. under the legal representatives of K/'e'ri'l<a..tijtti:.), dotilatlul C whether any such conveyance could talte 'place. Ntitwithslttiiidiiigte that the present appellant may iiot"the"tiii a po'siti'onItt) Ce-stahlish his case for possession by 'v'ii"tue of the being reversed, the apparent error C(A)'f'ﬂiT]ll{€ACl.,_V:.l_)_')JV the; First'~:l..}é3i--ppellate Court in addressing the "nia.turen1.and<lscope of moolgeni right would have to be t'€C()l}S§§.git3lft3d.l =l_n'--vAie\gv"'-t_)1'"tlie several judgments of this court which; have been ..if_efei'i'ed to in a decision repotted in M.s'.C/mrles Reggo 1.t'.\\i.., fefjtftflt-er Mulleris' Charitable Instimre and others, [LR iithvvtiuld be necessary for the First Appellate Court Q to reconsider its decision insofar the title of the plaintiff is {feoiilcerned and to arrive at its decision in accordance with law. While the first appellate court was right in concluding that the Trial Court had misdirected itself' in addressing several issues g arising in the suit over--again and that it ought to be restr:i'tt.t_e~ti to the question of titie with refereiice to the additicanal and the additional evidence that was-'tidtiw;:e(:ii_, itijiisi'apprQpri'ia.te ' that the First Appellate Court rectmsitieritits dee_i_si0n the finding that the plaintiff hatdiiiesitéiblisheti ._t_iti'e he deriving title tinder ho right of alienation.

First Appeiiate CCti'1»"tiiiii:-_ The matter is remanded for a fresh considetzitvion in above. after affording opportunity " " to of Sd/-3, Judie' {IV

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