Karnataka High Court
Vaijinath S/O Partappa Khadke vs Sharnappa S/O Rachappa Khadke Ors on 31 May, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF MAY 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
R.S.A.NO.7191/2011
C/W
R.S.A.NO.7204/2011
IN RSA.NO.7191/2011
BETWEEN:
Vaijnath s/o Partappa Khadke
Age: 39 Years
R/o: Dhannura Village
Tq: Bhalki Dist: Bidar.
... Appellant
(By Sri.Ameet Kumar Deshpande, Advocate)
AND:
01. Sharnappa s/o Rachappa Khade
Age: 72 Years
R/o: Dhannura Village
Tq: Bhalki Dist: Bidar.
02. Smt.Chandramma w/o Partappa Khadke
Since deceased by LRs
2
(a) Smt.Rajamma w/o Iswar Hugge
Age: 60 Years
R/o: Vidya Nagar Colony
Bidar.
(b) Smt.Shardabai w/o Sharnappa Janathe
Age: 50 Years
R/o: H.No.18/02/410
Ram Nagar Colony
Chidri Road Bidar.
03. Hanumanthappa s/o Siddappa Aurade
Since deceased by his LRs.
03(a) Chandramma w/o Late Hanumanthappa
Aurade @ Kamannor
Age: 80 Years Occ: Household
03(b) Kashappa s/o Late Hanumanthappa
Aurade @ Kamannor
Age: 62 Years Occ: Agriculture
03(c) Vishwanath s/o Late Hanumanthappa
Aurade @ Kamannor
Age: 60 Years Occ: Agriculture
03(d) Sharanappa s/o Late Hanumanthappa
Aurade @ Kamannor
Age: 55 Years Occ: Agriculture
03(e) Shivakumar s/o Late Hanumanthappa
Aurade @ Kamannor
Age: 45 Years Occ: Agriculture
03(f) Baburao s/o Late Hanumanthappa
Aurade @ Kamannor
Age: 35 Years Occ: Agriculture
3
All are R/o: Dhannur Village
Tq: Bhalki Dist: Bidar
Now residing at House No.193/141
Navadageri Tq & Dist: Bidar.
03(g) Kalavati w/o Bakkappa Managenavara
D/o Late Hanumanthappa
Age: 40 Years
Occ: Household R/o: Mamankeri
Tq & Dist: Bidar.
04. Mohan s/o Sharnappa Khadke
Age: 41 Years Occ: Dhannura Village
Tq: Bhalki Dist: Bidar.
05. Ratnakar s/o Sharnappa Khadke
Age: 35 Years
R/o: Dhannura Village
Tq: Bhalki Dist: Bidar.
06. Smt.Kamalabai w/o Sharnappa Khadke
Age: 35 Years
R/o: Dhannura Village
Tq: Bhalki Dist: Bidar.
07. Tejamma w/o Manikarao Kotwal
Since deceased by her LRs.
07(a) Chandrashekhar s/o Manikarao
Kotwal Police Patil
Age: 53 Years Occ: Agriculture
R/o: H.No.88, Navadgeri Village
Tq & Dist: Bidar-585401.
... Respondents
4
(By Sri Ashok S. Kinagi, Advocate for R1, R5 & R6,
By Sri R.J.Bhusare, Advocate for R2 & R3
By Sri.Ananth Jahagirdar, Advocate for R2 (A & B)
R3 (A), R3(B), R3(C), R3(D), R3(E), R3(F), R3(G), R4
served, but unrepresented v/o dated 08.11.2016 in
RSA.No.7204/2011
Notice to R7(A) is held sufficient)
This Regular Second Appeal is filed under Section
100 of Code of Civil Procedure praying to call for the
records and set aside the judgment and decree passed
in R.A.No.32/2009 dated 26.02.2011 on the file of Fast
Tract-II Bidar, Camp at Bhalki, and also judgment and
decree passed in O.S.No.30/2007 dated 30.01.2009 on
the file of Civil Judge (Sr. Dn) & JMFC at Bhalki and
decree the suit of the plaintiff.
IN RSA.NO.7204/2011
BETWEEN:
01. Sharnappa s/o Rachappa Khadke
Age: 62 Years Occ: Agril.
R/o: Village Dhannura
Tq: Bhalki.
02. Ratnakar s/o Sharnappa Khadke
Age: 35 Years Occ: Agril.
R/o: Village Dhannura
Tq: Bhalki.
5
03. Smt.Kamalabai w/o Sharnappa Khadke
Age: 57 Years Occ: Household
R/o: Village Dhannura
Tq: Bhalki.
... Appellants
(By Sri Ashok S. Kinagi, Advocate for Appellants)
AND:
01. Vaijinath s/o Partappa Khadke
Age: 39 Years Occ: Agril.
R/o: Village Dhanura
Tq: Bhalki Dist: Bidar.
02. Smt.Tejamma w/o Manikrao Kotwal Police Patil
Age: 82 Years Occ: Agril & Household
R/o: Navadgeri Biar.
Since died on 23.03.2013 her LRs.
02(a) Chandrashekar @ Chandrappa s/o Manikrao
Kotwal Police Patil
Age: 53 Years Occ: Agriculture
R/o: H.No.88 Navadgeri Village
Tq & Dist: Bidar.
03. Mohan s/o Sharnappa Khadke
Age: 41 Years Occ: Agriculture
R/o: Village Dhannura
Tq: Bhalki.
... Respondents
(By Sri Ameet Kumar Deshpande, Advocate for R1,
v/o dated 08.11.2016 notice to proposed R2(a) is
held sufficient
R3 is served and unrepresented)
6
This Regular Second Appeal is filed under Section
100 of Code of Civil Procedure praying to second appeal
may kindly be allowed by setting aside the judgment
and decree dated 26.02.2011 passed in R.A.No.30/2009
by the Fast Tract Court-II, Bidar sitting at Bhalki, and
consequently dismissed the suit of the plaintiff
O.S.No.29/2007 dated 30.01.2009.
These appeals coming on for Admission this day,
the Court delivered the following:
JUDGMENT
This appeal, being listed for admission, is taken up for final hearing with the consent of the learned counsel for the parties. These second appeals are filed calling in question the common judgment and decree dated 26.02.2011 in R.A.No.32/2009 and 30/2009 on the file of the Fast Track Court-II Bidar (for short "the Appellate Court"). These appeals in R.A.No.32/2009 and 30/2009 are filed by the plaintiffs in the two suits 7 in OS No. 29/2007 and O.S.No.30/2007 on the file of Civil Judge (Sr. Dn) JMFC Court at Bhalki (for short, "the Civil Court") impugning the Common judgment dated 30.01.2009 by which the Trial Court has dismissed both the suits.
02. The Appellate Court has allowed the appeal in R.A.No.30/2009 and set-aside the common judgment dated 30.01.2009 insofar as O.S.No.29/2007. The appellate Court has decreed the suit filed by the appellant - plaintiff for declaration of title and possession of the agricultural land in Sy.No.294/6 - New No.197/6, measuring 02 acres 32 guntas of Dhannura Village Bhalki Taluq and declaring the compromise decree dated 26.10.1999 in O.S.No.115/1999 on the file of Civil Judge (Sr.Dn) and JMFC at Bhalki as null and void against the appellant - plaintiff's right to the aforesaid property. 8
03. However, the Appellate Court by this common judgment dated 26.02.2011 has dismissed the appeal in R.A.No.32/2009 affirming the Civil Courts judgment dated 30.01.2009 insofar as dismissal of the appellant-plaintiff's suit in OS No. 30/2007 for declaration of title and possession of the land in Sy.No.294/5, New No.197/5, measuring 03 acres 37 guntas, of Dhannura Village, Bhalki Taluq, and that the Sale Deed dated 01.03.1983 executed by the appellant - plaintiff's mother in favour of defendant No.1 and the compromise decree in O.S.No.115/1999 on the file of Civil Judge (Sr. Dn) Bhalki interse members of the family of defendant No.1 are null and void as against the appellant - plaintiff's right to the aforesaid property.
04. The parties to these proceedings are referred to as they are arrayed before the trial Court in O.S.No.29/2007 for the sake of convenience. 9
05. The plaintiff filed the suit in O.S.No.29/2007 for declaration and possession of the land in Sy.No.294/6 - New No.197/6, measuring 02 acres 32 guntas and for other relief/s as aforesaid. The Plaintiff arrayed his cousin as the defendant No. 1, and wife and children of the defendant No.1 as the other defendants. Mrs. Tejaswamma was subsequently impleaded as Defendant No.5. The Plaintiff filed the suit in O.S.No.30/2007 for declaration of title and possession of land in Sy.No.294/5 - New No.197/5, measuring 03 acres 37 guntas and for consequential relief as aforesaid. The plaintiff arrayed the same persons as in O.S.No.29/2007 as defendants even in this suit. But in addition the plaintiff also arrayed his mother, Smt. Chandramma, Sri. Hanamanthappa s/o Siddappa Aurade and Smt. Tejamma w/o Manikrao Katwal as defendants No. 2, 3 and 7 respectively. 10
06. The undisputed facts are that Sri.Partappa Khadke and Sri.Rachappa Khadke are brothers. The plaintiff is the son of Sri.Partappa Khadke and defendant No.1 is the son of Sri.Rachappa Khadke. These two brothers Sri.Partappa and Sri.Rachappa Khadke were parties to a partition affected in the year 1958. In this partition Sri.Partappa Khadke was allotted the land in Sy.No.294/5 - New No.197/5 which is the subject matter of suit in O.S.No.30/2007. After the demise of Sri.Partappa in the year 1979, his wife (and the plaintiff's mother), Smt.Chandramma executed the sale deed dated 01.03.1983 (the sale deed impugned in O.S.No.30/2007) for the land in Sy.No.294/5 - New No.197/5 in favour the defendant No.1.
07. The controversy is because the plaintiff commenced suit in O.S.No.29/2007 contending that even the land in Sy.No.294/6 - New No.197/6 was allotted to his father, Sri.Partappa Khadke in the 11 partition of the year 1958. The Khata of this land was initially made in the name of his father, and after his father's demise, the Khata was made in the name of his mother, Smt. Chandramma. The plaintiff and his mother (because his brother, Sri Naganath died a bachelor later) are entitled to the land Sy.No.294/6 - New No.197/6 as Class-I legal heirs of the deceased Sri.Partappa. The defendant No.1 managed to get the Khata for the land in Sy.No.294/6 - New No.197/6 made in his name and the concerned revenue officials transferred the Khata for this land from the name of Sri.Partappa to defendant No.1 without verifying the prior records. The defendant No. 1 and his family members entered into a partition deed 01.03.1983 including this land in Sy.No.294/6 - New No.197/6 and initiated collusive suit O.S.No.115/1999 on the file of Civil Judge (Sr. Dn) Bhalki which was compromised a day after the suit was filed. Further, the plaintiff was in possession of the land in Sy.No.294/6 - New No.197/6 12 until 08.03.2007 when the defendant No. 1 using muscle power took forcible possession of this land from the plaintiff.
08. The Plaintiff also commenced the suit in O.S.No.30/2007 impugning the sale deed dated 01.03.1983 executed by his mother (Defendant No.2) in favour of defendant No.1 for the land in Sy.No.294/5 - New No.197/5 contending that after demise of his father, Sri.Partappa Khadke, the revenue records were mutated in favour of his mother (Smt.Chandramma - the defendant No. 2) in the year 1979. The plaintiff (and his now deceased-brother) along with their mother succeeded to even this Sy.No.294/5 - New No.197/5 as Class-I legal heirs. The defendant No.1, under the guise of securing the signature of the plaintiff's mother to avail certain amenities, fraudulently secured the Sale Deed dated 01.03.1983 in his favour for the land Sy.No.294/5 - New No.197/5. Thereafter, in the year 13 1999, the defendant No.4, the son of defendant No.1 instituted the aforesaid collusive suit in O.S.No.115/1999 against his family members including even this land in Sy.No.294/5 - New No.197/5. The defendant No. 1 attempted to interfere with plaintiff's possession in land Sy.No.294/5 claiming rights under the aforesaid sale deed dated 01.03.1983 and compromise decree in O.S.No.115/1999, the plaintiff resisted such efforts. But, the defendant No. 1 took forcible possession of even this land Sy.No.294/5 - New No.197/5 from the plaintiff. The plaintiff lodged a complaint in this regard with the jurisdictional police. The plaintiff also simultaneously initiated revenue proceedings for annulment of Katha/Revenue Entries in favour of defendant No.1. The plaintiff asserted that the cause of action for the suit arose on 08.03.2007. 14
09. The plaintiff's mother and the aforesaid Sri. Hanumanthappa filed common Written Statement acquiescing to the plaintiff's assertions in these suits, and stating that the suits could be decreed. The defendant no. 1 filed separate Written Statements contesting the two suits, and it is submitted that the defendant No. 1 filed these Written Statements on behalf of his other family members.
10. The defendant No.1 insofar as suit in O.S.No.29/2007, which pertains to the land in Sy.No.294/6 - New No.197/6, contended that this land was allotted to his father, Sri. Rachappa, in the partition affected in the year 1958. After the demise of his father, Katha for this Sy.No.294/6 - New No.197/6 was made in favour of the plaintiff's mother with the revenue authorities acting in collusion with Sri.Hanamantappa. The plaintiff's mother executed a deed in favour of Sri.Hanamantappa. However, realizing 15 the mistake, the plaintiff's mother and Sri.Hanamantappa agreed to give up their rights over this land. Later Sri.Hanamantappa even executed an Agreement Bond acknowledging that the defendant No.1 was the absolute owner of this land in Sy.No.294/6 - New No.197/6. The land Sy.No.294/6 - New No.197/6 was not allotted to the plaintiff's father, Sri.Partappa. The allegation as regards the suit in O.S.No.115/1999 being collusive was also denied. Similarly, the defendant No.1 denied that he forcibly dispossessed the plaintiff from land in Sy.No.294/6 - New No.197/6.
11. As regards the suit O.S.No.30/2007, the defendant No.1 contended that the plaintiff's mother Smt.Chandramma, in whose favour the Khata for the land in Sy.No.294/5 - New No.197/5 was made after the demise of her husband Sri.Partappa, executed the Sale Deed on 01.03.1983 transferring this land for consideration of Rs.10,000/- and she also delivered the 16 actual and physical possession of the land simultaneously with the execution of the Sale Deed. The plaintiff's mother, Smt.Chandramma executed the sale deed dated 01.03.1983 because she was in need of money for family and legal necessities i.e., she transferred the land in Sy.No.294/5 - New No.197/5 for a consideration of Rs.10,000/- to clear the debts incurred. Sri. Hanumanthappa also joined in the execution of the sale deed dated 1.3.1983 to transfer clear and marketable title to this land. The defendant No.1 denied the assertion that he had taken forcible possession of this land in Sy.No.294/5 - New No.197/5. The defendant No.1 continued in possession of the land in Sy.No.294/5 - New No.197/5 ever since the date of the sale deed. The Defendant No. 1 also contended that the suit was barred by limitation.
12. The suits in O.S.No.29/2007 and O.S.No.30/2007 were clubbed for common trial and the 17 Civil Court framed common Issues which required the plaintiff to inter-alia prove that he was the owner of both the lands in Sy.No.294/5 - New No.197/5 and Sy.No.294/6 - New No.197/6. The Issues so framed also required the plaintiff to prove that he was in possession of these two lands and that the decree in O.S.No.115/1999 was null and void. It would significant to mention that though the plaintiff had impugned the sale deed dated 01.03.1983 executed for the land Sy.No.294/5 - New No. 197/5 in O.S.No.30/2007 and the defendant No.1 contended that sale deed dated 01.03.1983 was executed by plaintiff's mother for family and legal necessities and to discharge debts, the Civil Court did not frame any Issue in this regard. The Defendant No.1, on the other hand, was required to discharge, as per Issue No.4, the burden of establishing that in a partition of the year 1958 between his father and plaintiff's father the land in Sy.No.294/6 - New No. 197/6 was allotted to his father's share after his father's 18 demise and that the Katha (Revenue Records) for this land was mutated in his favour after the demise of his father.
13. The plaintiff examined himself as PW.1 and examined Sri Chanbassappa S/o Sri Nagappa Ranjori as PW.2. The plaintiff marked Exs.P.1 to P.26, and these exhibits included amongst other Lavani Patrike (Revenue Records), a certified copy of the plaint, compromise petition and decree in O.S.No.115/1999 and the Settlement Register Extracts. The defendant No.1 examined himself as DW.1, his son, Sri Prabhu as DW.2 and another Smt. Mahadevi, as DW.3. The defendants marked Exs.P.1 to P.13, which included the sale deed dated 01.03.1983, Revenue Records (namely Lawani Patrike, Mutation Register Extract) and a copy of the sale deed executed by the plaintiff's father Sri Partappa Khadke for certain other lands. 19
14. The Civil Court by its common judgment dated 30.01.2009 dismissed both the suits holding that the plaintiff had failed to prove that he was the absolute owner of the land in Sy.Nos.294/6 - New No. 197/6 and 294/5 - New No. 197/5 and that he was entitled for possession of the suit properties. The Civil Court also held that in the negative as regards the Issue which required the plaintiff to prove that decree in O.S.No.115/1999 was null and void. The Civil Court after referring to Ex.P.21 - a Form No.10 issued by the revenue authorities concluded that it was obvious that Sri Rachappa, the father of the defendant No.1 was allotted the land in Sy.No.294/6 - New No. 197/5 in the partition of the year 1988 and no further documents were required to establish that this land was indeed allotted to Sri Rachappa. The Civil Court also held that revenue records 'were unequivocal in recording' that Sri Rachappa was the owner in possession of these lands. If Sri Rachappa was the owner of the land in 20 Sy.No.294/6 - New No.197/6, on his demise, the defendant No.1, his son would inherit the land. Therefore, this land in Sy.No.294/6 - New No.197/6 was subject matter of the suit in O.S.No.115/1999.
15. As regards the challenge to the sale deed dated 01.03.1983 and the declaration of title in favour of the plaintiff for the land in Sy.No.294/5 - New No.197/5, the Civil Court concluded that the plaintiff, who had commenced the suit in the year 2007, had slept over 19 years. If the plaintiff wanted to challenge this sale deed dated 01.03.1983, he had to file the appropriate suit immediately after attending the age of majority, but the plaintiff had chosen to file the present suit when he was 37 years old after 19 years. The Civil Court accepted the defence of the defendant No.1 that the plaintiff's mother, Smt. Chandramma had executed the sale deed dated 01.03.1983 transferring land in Sy.No.294/5 for legal necessities and for the benefit of 21 the family holding that this was established by the evidence on record.
16. The plaintiff being aggrieved by the Civil Court's common judgment filed appeal in R.A.No.30/2009 on the file of the Appellate Court impugning this common judgment insofar as judgment and decree in O.S.No.29/2007, and filed the appeal in R.A.No.32/2009 impugning the common judgment and decree dated 30.01.2009 insofar as suit in O.S.No.30/2007.
17. The Appellate Court by its common judgment dated 26.02.2011 has allowed the appeal in R.A.No.30/2009 decreeing the plaintiff's suit in O.S.No.29/2007 thereby declaring the plaintiff as the owner of the land in Sy.No.294/6 - New No. 197/6 and dismissed, the appeal in R.A.No.32/2009 affirming the Civil Court's judgment and decree in O.S.No.30/2007 thereby confirming that the plaintiff could not have 22 challenged the sale deed dated 01.03.1983, executed by his mother in favour of the defendant No.1 transferring the land in Sy.No.294/5. Therefore, the plaintiff has filed the second appeal in R.S.A No.7191/2011 calling in question the common judgment and decree in the appeal in R.A.No.32/2009 and the judgment and decree in O.S.No.30/2007. The defendant No.1 has filed the second appeal in R.S.A.No.7204/2011 impugning the common judgment and decree in the appeal in R.A.No.30/2009.
18. The learned counsel for the defendant No.1 arguing in support of the appeal in R.S.A.No.7204/2011 submitted that the plaintiff had filed an application under Order 41 Rule 27 of CPC seeking permission of the Appellate Court to produce certain additional documents. This application was contested by the defendant No.1 and the others. The Appellate Court ordered that this application could be taken up for final 23 disposal with the appeal on merits. The Appellate Court without allowing the application has relied upon the documents proposed to be produced by the plaintiff, and placing reliance upon such documents has decreed the plaintiff's suit in O.S.No.29/2007 declaring the plaintiff as absolute owner of land in Sy.No.294/5 - 197/5 negating the case of defendant No.1 that this land was allotted to his father, Sri Rachappa, in a partition effected in the year 1958.
19. The learned counsel for the defendant No. 1 argued that the Appellate Court had failed to consider that the plaintiff had not made out any ground as required under the provisions of Order LXI Rule 27 of CPC; the Civil Court could not have disposed of the appeal without considering the application on its merits. The learned counsel relied upon the decision of this Court reported in Sugappa and another vs 24 Shivashankerappa and another1, Smt. Subhadhramma vs Mullangi Narayanamma and others2 and Shri Narayan vs Shri Firdos and others3. The learned counsel also relied upon the decision of the Hon'ble Supreme Court in Jatinder Singh and another (Minor Through Mother) vs Mehar Singh and other4. 20. The learned counsel for the defendant No. 1 further submitted that the Appellate Court, which could not have allowed the I.A. filed under Order XLI Rule 27 of CPC fell into a further error in relying upon such documents and holding that the land in Sy.No.294/6 - New No.197/6 was granted to the plaintiff's father, Sri. Partappa Khadke in the year 1958 without calling upon the plaintiff to prove the documents or the contents thereof and without affording opportunity to the defendant No.1 to lead rebuttal evidence. The 1 2015 (4) KCCR 3499 2 2016 (3) KCCR 2445 3 2017 (3) KCCR 1290 4 AIR 2009 Supreme Court 354 25 documents could not have been relied upon without having recourse to the procedure contemplated under Order XLI Rule 28 and 29 of CPC. The learned counsel placed reliance upon the decision of the Hon'ble Supreme Court in Uttaradi Mutt vs Raghavendra Swamy Mutt5 in this regard.
21. The learned counsel for the plaintiff refuted the submissions by the learned counsel for the defendant No.1 that the application under Order XLI Rule 27 of CPC is not allowed by the Appellate Court. The learned counsel for the plaintiff argued that from a reading of the judgment it is obvious that the application is indeed allowed though the Appellate Court has not specifically said so in so many words. However, the learned counsel for the plaintiff did not join the debate with the learned Counsel for the defendant No. 1 on the canvass that the Appellate Court 5 (2018) 10 Supreme Court Cases 484 26 had fallen in error in not adhering to the procedure contemplated under Order XLI Rule 28 and 29 of CPC or the alternate procedure contemplated under Order 41 Rule 23 (a) and Rule 25 and 26 of CPC. The learned counsel for the plaintiff also placed reliance upon the decision of the Hon'ble Supreme Court in Uttaradi Mutt's case supra.
22. The learned counsel for the plaintiff arguing in support of appeal in R.S.A. No.7191/2011 filed calling in question the Appellate Courts judgment insofar as dismissal of the appeal in R.A.No.32/2009 and confirmation of the judgment by the Trial Court in O.S.No.30/2007, canvassed the following submissions.
(i) The plaintiff impugned sale deed dated 01.03.1983 executed by his mother in favour of the defendant No.1 specifically contending that his mother could not have executed the sale deed dated 01.03.1983, the plaintiff was also entitled 27 for a share as a Class-I legal heir of his father. The plaintiff in support of the challenge had taken up the specific plea that the defendant No.1 used his guile in securing the sale deed dated 01.03.1983 in his favour under the guise of securing rights to water from a tube wall on the bund between the land Sy.Nos.294/6 - New No.197/6 and 294/5 - New No.197/5. Thus, the plaintiff had, in effect, pleaded that his mother had executed the sale deed dated 01.03.1983 without there being any legal necessities. The defendant No.1 had specifically resisted the plaintiff's case contending that his mother was in need of money for family and legal necessities and she executed the sale deed in his favour because of such family and legal necessities, and to clear debt.
(ii) Despite these respective cases, which required the defendant No.1 to discharge the onus of 28 establishing that the plaintiff's mother had executed the sale deed dated 01.03.1983 for family and legal necessities and to discharge family debts, the Civil Court had not framed any Issue in this regard nor had the defendant No.1 placed any evidence to discharge the burden in this regard. Nevertheless, the Courts below have concluded that the plaintiff's mother had executed the sale deed dated 1.3.1983 for family necessities and that the defendant No. 1 was a bona fide purchaser.
(iii) The Civil Court dismissed the suit in O.S.No.30/2007 on the ground that the plaintiff had not impugned the Sale Deed dated 1.3.1983 for a period of 19 years and therefore, the plaintiff cannot lay challenge to the sale deed dated 01.03.1983. But, the Appellate Court failed to consider that the Civil Court could not have so concluded without an Issue being framed 29 in this regard and the parties leading evidence on such Issue.
(iv) The learned counsel for the plaintiff elaborated submitting that the Courts below ought to have seen that the plaintiff's challenge to the sale deed dated 01.03.1983 could not have been dismissed on the ground that it was belated or that the plaintiff had kept mum for 19 long years, without examining, in the facts and circumstances of the case, under which of the provisions of the Limitation Act, 1963, the suit was barred; The suit could not have been dismissed unless the Civil Court decided the limitation period within which the plaintiff had to file the suit and the time from which such limitation period had to be reckoned. Without examining these factors, a necessary concomitant to non-suit a person on the ground of limitation, the plaintiff's suit could 30 not have been dismissed the suit on the ground of limitation.
23. The learned counsel for the plaintiff also submitted that both the Courts below had misdirected themselves in deciding the real controversy because the two suits are clubbed. These suits, given nature of the relevant challenge and defence thereto, could not have been clubbed, and because the real controversy is not decided, there is miscarriage of justice. The learned counsel for the appellant placed reliance on the decision of the Hon'ble Supreme Court in A. Shanmugam vs Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam Represented by its President and Others6 with emphasis on Paragraph Nos.30 to 32.
6 (2012) 6 Supreme Court Cases 430 31
24. The learned counsel for the defendant No.1 strenuously contested the submission made by the learned counsel for the plaintiff urging as under:
Firstly, the learned counsel contended that the ground as regards the non-framing Issues on limitation and the defendant No.1 being called upon to establish that he was a bona fide purchaser for value and the courts nevertheless rendering their findings thereon, submitted that this ground was not taken up either before the Civil Court or the Appellate Court. These grounds cannot be urged for the first time in the second appeal. The learned counsel for the defendants placed reliance upon the Division Bench of this Court in the case of Mrs. Tahira Rehman and another vs M/s. Manipal Sowbhagya Nidhi Ltd. And Others7.
7 2017 (3) KCCR 3674.32
Secondly, the plaintiff challenged the sale dated 01.03.1983 on the ground that defendant No.1 had practiced fraud in securing the sale deed dated 01.03.1983 without paying consideration and the plaintiff had not challenged the sale deed dated 01.03.1983 on the ground that the mother had transferred the property without family or legal necessities. Therefore, a new case is being introduced for the first time in the second appeal contrary to the pleadings. This would be entirely impermissible in law.
Thirdly, the undisputed facts are that the plaintiff was a minor as on the date of the sale deed dated 01.03.1983. The revenue records were made in the name of defendant No.1 after the sale deed dated 01.03.1983 and the subsequent suit in O.S.No.115/1999 inter se the family members of the defendant No.1. But, the present suit is filed in the 33 year 2007 i.e., after a lapse of more than 19 years from the date of the sale deed. Even if the plaintiff could rely upon Article 109 or other provision of the Limitation Act, 1963 and claim a higher limitation period of 12 years, the plaintiff had to file the suit within 12 years from the date of the loss of possession. But, the possession of the land in Sy.No.294/5 - New No.197/5 was handed over simultaneously with the execution of the sale deed dated 01.03.1983. As such, the finding by the Trial Court on the suit being belated and barred by limitation is unexceptionable.
Lastly, the learned counsel for the defendant No. 1 contended that it cannot be urged for the first time in a second appeal that Courts have not properly framed Issues and that there has been no adjudication on the real controversy asserting that it is settled law that merely because an Issue has not been framed casting 34 burden on a particular party to the proceedings, a judgment cannot be faulted with; non-framing of an issue would not be fatal if the parties have understood the real dispute and have gone to trial on such dispute. The learned counsel relied upon a decision of this Court in the case of M.C. Suresh vs. B. Srinivas Naik and Ors8.
25. On hearing the learned counsel for the parties, and upon perusal of the record, this Court is of the opinion that the following substantial questions of law arise for consideration in these two appeals:
In R.S.A.No.7204/2011 arising out the appeal in R.A.No.30/2009.
(a) Whether the Appellate Court has examined the reasons assigned for belated filing the additional documents with the application under Order XLI Rule 27 of CPC before considering such documents, and whether such application is indeed allowed or not.8
ILR 2009 Kar. 3897 35
(b) Whether the First Appellate Court could have relied upon the documents to grant relief to the plaintiff-applicant without calling upon the plaintiff-applicant to prove the documents and contents thereto and explain the relevance, and without an opportunity to the opponent- defendant No.1 to lead rebuttal evidence.
(c) Whether the First Appellate Court has disposed of the appeals in accordance with the provisions of Order XLI Rule 31 of CPC formulating points for consideration appropriate to each of the two suits.
(d) Whether the finding that defendant No.1 is a bonafide purchaser for value of the land in Sy.No.294/5 - New No. 197/5 is based evidence on record, and whether the plaintiff can urge this ground.
(e) Whether the Trial Court has erred in dismissing the plaintiff's suit in
O.S.No.30/2007 without framing a specific issue on the question of Limitation, and whether the plaintiff can urge this ground. 36
26. There is no dispute about the relationship amongst the parties. However, the plaintiff claims title to the land in Sy.No.294/6 - New No. 197/6 under his father, Sri. Partappa Khadke asserting that he, his deceased brother Sri Naganath (who died as bachelor) and his mother, Mrs. Chandramma (defendant No.2 in the suit in O.S.No.29/2007) succeeded to this land in Sy.No.294/6 - New No. 197/6 and other lands as well. This land in Sy.No.294/6 - New No. 197/6 was allotted to his father, Sri Partappa Khadake in a partition concluded by him in 1950s with his brothers, including Sri Rachappa Khadake, who is the father of the defendant No.1. But, the defendant No.1, while not disputing the partition in 1950s, has refuted the assertion that the land in Sy.No.294/6 - New No. 197/6 was allotted to Sri Partappa Khadake. According to the defendant No.1, this land in Sy.No.294/6 - New No.197/6 was allotted to his father, Sri Rachappa Khadake.
37
27. The continuing controversy is because the plaintiff contends that the revenue records for the land in Sy.No.294/6 - New No.197/6 was made in the name of his father, Sri Partappa Khadake during his lifetime. But, the defendant No.1, who had submitted an application for mutation of Khata for the lands held by his father, Sri Rachappa Khadake, managed to get the revenue records made in his name even for the land in Sy.No.294/6 - New No.197/6 in collusion with the revenue authorities. Further, the defendant No.1 brought about a registered partition deed dated 01.03.1983 between himself and his family members illegally including this land, and also instigated one of his sons to commence suit in O.S.No.115/1999 for partition, which is settled immediately after the date of suit. This conduct also reinforces the plaintiff's case as regards the unjustified claim by the defendant No. 1 as regards the land in Sy.No.294/6 - New No. 197/6. 38
28. The defendant No.1, on the other hand, contends that the Khata for the land in Sy.No.294/6 - New No. 197/6 was made in his favour after the demise of his father, Sri Rachappa Khadake. The plaintiff's mother, Smt. Chandramma created false revenue entries in collusion with Gurappa S/o Shivalingappa Khadake and executed a deed in favour of Hanmantappa S/o Siddappa. Later, the aforesaid realising that they had made a mistake, agreed to withdraw their claim and Sri Hanmantappa executed an agreement, with the plaintiff's mother joining in the execution of the agreement as a witness, affirming the defendant No. 1 was the absolute owner of the land in Sy.No.294/6 - New No. 197/6. Therefore, the plaintiff cannot claim title to the land in Sy.No.294/6 - New No. 197/6 or impugn the registered partition deed dated 01.03.1983 and the compromise in the suit O.S.No.115/1999.
39
29. In the light of the aforesaid dispute, the real controversy between the parties is pivoted inter alia on the questions whether the land in Sy.No.294/6 - New No. 197/6 was allotted to Sri Partappa S/o Khadake (the plaintiff's father) or Sri. Rachappa Khadake (the defendants' father), and whether the plaintiff could impugned the partition deed between the defendant No.1 and his family members and the subsequent compromise in the suit in O.S.No.115/1999 on the ground that this land in Sy.No.294/6 - New No. 197/6 was not at all allotted to Sri. Rachappa Khadake.
30. The Civil Court, which framed Issues that required the plaintiff to prove that he was the owner of the land in Sy.No.294/6 - New No. 197/6 and the defendant No.1 to prove that this land in Sy.No.294/6 - New No. 197/6 was allotted to his father in the undisputed partition in the year 1952, concluded that it was obvious from Ex.P21 and Ex.P22 that the land in 40 Sy.No.294/6 - New No. 197/6 was allotted to Sri Rachappa Khadake, the father of the defendant No.1. The plaintiff had not challenged the revenue records in favour of the defendant No.1, or his father and as such, no further evidence or discussion was required to hold that the land in Sy.No.294/6 was allotted to Sri Rachappa Khadake.
31. The plaintiff filed the appeal in R.A.No.32/2009 challenging the judgment of the Civil Court, and in this appeal the plaintiff filed application under Order XLI, Rule 27 of CPC seeking leave of the Court to produce different documents as additional evidence. The additional documents included the Lavni Patra in Form No.6 for the years 1957-1965, the Survey Settlement Records, the subsequent Lavni Patra for the years 1971-1976. The Appellate Court considered this application filed under Order XLI, Rule 27 of CPC along with the main appeal. It is obvious from the impugned 41 judgment that the appellate Court has not allowed this application, and definitely not as against touchstone of the provisions of Order XLI, Rule 27 of CPC. However, the Appellate Court has referred to the documents produced by the plaintiff along with this application under Order XLI, Rule 27 of CPC, and not only that, the Appellate Court very cursorily concluded that the documents produced by the plaintiff along with the application under Order XLI, Rule 27 of CPC are public records and therefore, the matter need not be remanded back to the Trial Court. The relevant part of the order reads as follows:
"It is noted earlier that the appellant produced some documents i.e., Kasra Panis, form No.16 Lavni Patrika, reveneu settlement Akar Bandh and patta book of the suit lands and are all standing in the name of the father of the appellant. The said documents produced by the appellant makes it clear that suit properties are fallen to the share of the appellant father Partappa. And further the 42 documents produced by the appellant in this Court are public documents. Therefore, remanding case to lower Court is not required."
32. A party cannot as a matter of routine seek to produce additional documents in an appeal after having invited the judgement on the original side on the strength of certain evidence, and therefore, the right to produce additional document is conditioned by the terms as found in Order XLI Rule 27 of CPC. The provisions of Order XLI Rule 27 begin with the stipulation that a party to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, but enables an appellate court to permit a party to produce additional evidence in the appeal if the court on the original side has refused to admit evidence which should have been admitted, or if a party is able to establish that notwithstanding the exercise of due diligence such evidence could not be produced or such evidence was not with his knowledge. Of course, 43 additional evidence could also be permitted by the appellate court under the provisions of Order XLI Rule 27 (1) (b) of CPC. Therefore, the Hon'ble Supreme Court in Hakham Singh vs. State of Haryana9 and in Jatinder Singh and another vs. Mehar Singh and others10 remitted back appeals to the High Court for decision afresh on the merits and on the application under Order XLI Rule 27 of CPC in accordance with law. Following these judgement of the Hon'ble Supreme Court, this Court (as is obvious from decisions relied upon by the learned counsel for the defendant No. 1 in Smt. Subdhramma vs. Mullangi Narayanamma and others supra and other cases) has set aside the order impugned on this ground as being vitiated and unsustainable and remanded the matter back to the civil court for re-consideration while considering the application filed under Order XLI Rule 27of CPC.
9 (2008) 12 SCC page 762 10 AIR 2008 SC page 354 44
33. The appellate Court, without even examining whether the plaintiff had made out grounds either under Order XLI Rule 27 (1) (a) or (aa), or even under Rule 27 (1) (a) (b) of CPC has considered the documents produced by the plaintiffs. It is obvious from the impugned judgement that the appellate Court is completely oblivious to the requirement of law inasmuch as the appellate Court did not even pass a formal order stating that the application was being allowed and the documents are taken on record. Germane as the additional documents produced by the plaintiff could perhaps be to the controversy, unless the appellant Court applied its mind and concluded that the additional documents could be received either for reasons under Order XLI Rule 27 (1) (a) or (aa) or (b) of CPC, it could not have received such documents as additional evidence or considered them. Therefore, the impugned judgement insofar as RA No. 30 of 2009 should be set-aside and the matter remanded back to 45 the appellant court consider on merit the application filed by the plaintiffs under order XLI Rule 27 CPC.
34. Further, it would be worthwhile to draw the attention of the appellate Court to the decision of the Apex Court in Uttaradi Mutt case supra wherein the Apex Court has reiterated its decision in earlier cases that, when an application for reducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so, and the appellant court could itself record evidence or direct the civil court to take evidence on the points specified by the appellant court and send its report with regard thereto. The appellant Court will have to, if it is of the opinion that the application filed by the plaintiff under Order XLI Rule 27 is to be allowed, bear in mind this law. This would address the ground Hoechst on behalf of defendant No. 1 that the defendant No. 1 has not had 46 the opportunity to lead rebuttal evidence. The first two questions are accordingly answered.
35. The plaintiff insofar as the suit in OS No. 30/2007, which is filed impugning the sale deed dated 1.3.1983 and the compromise decree in OS No. 115/1999, contended that the cause of action for the suit arose on 8.3.2007 when the defendant No. 1 allegedly took forcible possession of the land in survey No. 296/5-New No. 197/5 from him. The defendant No. 1 denied this assertion and specifically contended that the possession of the land in survey No. 296/5 - New No. 197/5 was handed over by the plaintiff's mother simultaneously with the execution of the Sale Deed dated 1.3.1983, and further, the different No. 1 contended that the plaintiff's suit commenced after 19 years from the date of the sale deed dated 1.3.1983 was barred by limitation. The question whether a suit is barred by limitation or not could be a mixed question of 47 fact and law as the same will have to be decided after examining, in the context of the relevant article of the Limitation Act 1963, the applicable limitation period within which the plaintiff had to file the suit and the time from which such limitation period must be reckoned.
36. The civil Court did not frame any Issue on limitation, but concluded that the plaintiffs' suit in OS No. 30/2007 was belated because the plaintiff had kept mum for 19 years, that is 19 years from the date of the sale deed dated 1.3.1983. The plaintiff impugned this judgement in RA No. 32/2009 inter alia contending that the civil Court had erred in clubbing the two suits and in considering the respective pleadings in OS No. 30/2007 properly, and because of this error the civil Court had failed to arrive at the correct conclusion. It is trite that failure to cast a particular Issue would not be fatal in a given case if the parties have understood the 48 real controversy between them in the proceedings and led evidence in support of their versions. But, the appellant Court has not considered whether the civil Court had erred in casting Issues, whether the civil Court had erred in concluding that the plaintiff's suit was belated by 19 years with reference to any particular provision of the Limitation Act, 1963, and whether such finding was justified in the light of evidence on record. The appellant Court has not said anything about the plaintiff's suit in OS No. 30/2007 being belated.
37. Similarly the civil Court, without a specific Issue on the controversy whether the plaintiff's mother had transferred the land inSy.No.294/6 - New No. 197/6 favour of the defendant No. 1 for joint family legal necessities and benefits, has concluded that the defendant No. 1 was a bona fide purchaser of the land and the sale in his favour was for joint family necessities. The appellant Court has also concluded 49 that defendant No. 1 was a bona fide purchaser and that the plaintiff's mother had executed the sale deed in favour of the defendant No. 1 for the welfare of the family. However, neither the civil court nor the appellant court have examined the question whether the plaintiff and defendants had gone to trial insofar as the transfer of the land in Sy.No.294/6 - New No. 197/6 knowing that the sale deed dated 1.3.19 83 could be set at nought if the defendant No. 1 failed to establish that the sale was to meet the family necessities. It is also not obvious from either of the two judgements that this conclusion that the defendant No. 1 is a bona fide purchaser for value and the sale in his favour was for family necessities is based on some specific evidence on record.
38. The appellant Court has neither formulated points for consideration specific to the case nor rendered its opinion after a detailed discussion of the evidence on the specific questions involved in the suit. 50 The Hon'ble Supreme Court in H. Siddiqui v. Ramalingam11 has held, with reference to the provisions of Order XLI Rule 31 of CPC, that the first appellate Court, being the final court of fact, must not record mere general expression of concurrence with the trial court judgement, rather it must give reasons for its decision on each point independent of the reasons by the trial court. The Hon'ble Supreme Court has held that the entire evidence must be considered and discussed in detail, and that this exercise should be done after formulating the points for consideration in terms of the provisions of order XLI rule 31 of CPC. The appellant courts must proceed in adherence to the requirements of the statutory provisions. But, the appellant Court has framed a general question for its consideration viz., whether the impugned judgement was perverse, capricious and against the law and merits of the case.
11
(2011) 4 SCC Page 240 51
39. The appellant court, given the texture of the dispute and that two suits, though essentially between the same parties but based on different causes of action, were disposed of by a common judgement by the civil Court should have formulated points specific to each case for consideration and should have assigned its reasons as against each specific point for consideration. The appellant court's failure in this regard is material and significant inasmuch as the essential questions whether the plaintiff's suit in OS No. 30/2007 is barred by limitation and whether the defendant No. 1 is able to establish that is a bona fide purchaser and the sale and his favour was for legal necessities have remained without an effective adjudication.
40. In the light of the aforesaid discussion, this court is the considered view that both the second appeals are to be allowed in part, and the first appeals 52 are to be restored to the appellate Court for reconsideration in the light of the decisions referred to above while observing that this Court has not expressed any opinion on the merits of the respective case for the parties, and reserving liberty, subject to exemptions in law, to the parties to urge all grounds. Therefore, the following ORDER a. The appeal in RSA No.7204/2011 is allowed in part and the impugned judgment and decree dated 26.02.2011 passed by the Fast Track Court-II at Bidar insofar as R.A.No.30/2009 is set aside and the appeal is restored to the appropriate jurisdictional First Appellate Court to consider the application filed by the plaintiff under Order XLI Rule 27 of C.P.C. on merits and to dispose of the appeal, if necessary after recourse of the provisions of Order XUU Ryke 27 abd 28 of CPC in the light of the law laid down by the Hon'ble Supreme Court of India. 53
b. The appeal in RSA No.7191/2011 is also allowed in part and the common judgment and decree dated 26.02.2011 in R.A.No.32/2009 on the file of the Fast Tract Court-II Bidar is also set aside and the appeal is restored to the appropriate jurisdictional First Appellate Court, c. The appellate Court is called upon to decide the appeals after formulating necessary points for consideration and in the light of the decision of the Hon'ble Supreme Court in H. Siddiqui v. Ramalingam case referred to above.
d. The parties shall appear before the present appropriate jurisdictional First Appellate Court viz., I Addl. District & Sessions Judge, Bidar on 04.07.2019, without waiting for further notice of the first hearing e. In view of disposal of the appeals, I.A.No.1/2016 filed in RSA No.7204/2011 seeking stay does not arises for 54 consideration. Accordingly, same is disposed of.
No costs.
Sd/-
JUDGE KJJ/RSP/BL