IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.789 OF 2018 Between:
1. Smt. Devamma W/o.Late Shivegowda.A.P. Hindu Aged about 83 years Represented by son GPA Holder A.S.Poornesh Aged about 41 years S/o. Late Shivegowda. A.P.
2. Sri. Dinesh. A.S S/o. Late Shivegowda. A.P Hindu Aged about 49 years Both are R/at Anajooru Village Jannapura Post Gonibeedu Hobli Mudigere Taluk Chikkamagaluru District-577132 ... Appellants (By Sri. S.N.Bhat, Advocate for Sri. Sandesha.A.S., Advocate) And:
1. Sri. Gopalagowda. A.B S/o. Late Byregowda Hindu Aged about 69 years 2. Sri. Subrayagowda. A.G S/o. A.B.Gopalagowda Hindu Aged about 47 years Both are R/at Anajooru Village Jannapura Post Gonibeedu Hobli Mudigere Taluk Chikkamagaluru District-577132 ... Respondents (By Sri. G.Chandrashekharaiah, Advocate for C/R1 and R2) This Regular Second Appeal is filed under Section 100 of CPC, against the judgment and decree dated 23.02.2018 passed in R.A.No.35/2017 on the file of the Principal District and Sessions Judge, Chikkamagaluru, partly allowing the appeal and modifying the judgment and decree dated 29.06.2017 passed in O.S.NO.28/2014 on the file of the Senior Civil Judge and JMFC, Mudigere.
This Regular Second Appeal coming on for admission this day, the court delivered the following:
Judgment This appeal is filed by the plaintiffs in O.S.No.28/2014 on the file of the Senior Civil Judge and JMFC, Mudigere (for short, ‘the civil Court’) impugning the judgment and decree dated 23.02.2018 in R.A.No.35/2017 on the file of the Principal District and Sessions Judge, Chikkamagaluru (for short, the ‘appellate Court’).
2. The appellants have filed this suit in O.S.No.28/2014 for declaration that they are the owners of two parcels of land in Sy.Nos.84/P3 (measuring 1 acre) and 84/P5 (measuring 30 guntas) of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk, and for permanent injunction against the respondents from interfering with the possession of the suit property. The civil Court by its judgment dated 29.06.2017 has decreed the suit declaring the appellants the owners of the respective portions of the aforesaid lands, and further the civil Court has granted permanent injunction restraining the respondents from interfering with the appellants’ respective possession of these two parcels of lands in Sy.Nos.84/P3 and 84/P5 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk.
3. The respondents being aggrieved by the civil Court’s judgment have filed the first appeal in R.A.No.35/2017, and this first appeal is partly allowed by the appellate Court by its judgment dated 23.02.2018, modifying the civil Court’s judgment declaring the appellants as the owners of 4 acres of land and further restraining the respondents from interfering with such extent of 4 acres in Sy.No.84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk. The appellate Court has declared the appellants as the owners of 4 acres referring to Ex.D19, a sketch of the land in Sy.Nos.84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk.
4. The undisputed facts are that the appellants claim title to two parcels of land and in Sy.Nos.84/P3 (measuring 1 acre) and 84/P5 (measuring 30 guntas) of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk from Sri. A.P.Shivegowda. There is no dispute that Sri. A.P.Shivegowda was granted 4 acres of land in Sy.No.84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk and the respondent No.1 is granted 2 acres of land in the same survey number. These two extents viz., 4 acres and 2 acres are adjacent lands. Sri. A.P.Shivegowda and the respondent No.1 have initiated suits in O.S.No.133/1983 and O.S.No.138/1983 with each seeking declaration of title and permanent injunction for the respective portions of lands. These suits are disposed of by the common judgment and decree dated 09.08.1994, and both Sri. A.P.Shivegowda and the respondent are declared as owners in possession of their respective extents of 4 acres and 2 acres allotted to them in Sy.No.84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk. This judgement and decree dated 9.8.1994 is not challenged and has attained finality.
5. The appellants contend that after this judgment and decree dated 9.8.1994, the family members of Sri A.P. Shivegowda, including the appellants have partitioned the land measuring 4 acres in Sy.No.84 of Anjjor village, Gonibeedi Hobli, Mudigere Taluk, under a registered Partition Deed dated 15.11.1993. In this partition, an extent of 1 acre is allotted jointly to Sri A.P.Shivegowda and his wife, the appellant No.1, and an extent of 30 guntas is allotted in favour of the appellant No.2. The remaining extent is allotted in separate portions to two other sons of Sri A.P.Shivegowda and appellant No.1. The appellant No.1, on the demise of Sri A.P.Shivegowda, has acquired absolute ownership of 1 acre. The respondents, despite the judgment and decree in O.S.Nos.133/1983 and 138/1983 and the subsequent partition, are trying to interfere with the appellants’ possession of the respective portions and therefore, the present suit.
6. The respondent No.2, who is the son of the respondent No.1, filed his written statement, and the respondent No.1 filed a memo dated 31.05.2014 adopting such written statement. The respondents did not dispute the adjudication of the dispute in the earlier suits in O.S.No.133/1983 and O.S.No.138/1983. The respondents assert that the land measuring 2 acres that is granted to the respondent No.1 is renumbered as Sy.No.100 after necessary proceedings, and the appellants are trying to interfere with the respondents’ possession of this extent of 2 acres of land that is renumbered as Sy.No.100.
7. The civil Court framed the following issues:
“1) Whether the plaintiffs prove that they are the absolute owners and in possession of the suit schedule properties?
2) Whether the plaintiffs prove that, the defendants are trying to interfere with the possession of the suit schedule properties?
3) Whether the plaintiffs prove are entitled for the reliefs sought for?
4) What order or decree?”
8. The appellant No.2 examined himself as PW.1 and Sri. A.S.Poornesh - another son of Sri. A.P.Shivegowda is examined as PW.2 asserting a Power of Attorney in his favour by his mother. The appellants marked a total number of 30 Exhibits, and the chief document insofar as the present controversy are the Partition Deed dated 15.11.1993 and the consequential Revenue Records as well as the Survey Records. The respondents examined the respondent No.2 as DW.1 and they marked 20 Exhibits including the pleadings in the previous suit in OS.No.138/1993 and the common judgment and decree dated 09.08.1994.
9. The civil Court on appreciation of the evidence, including Ex.D.19 (wrongly mentioned as Ex.D.9) concluded, while answering Issue No.1, that the appellants are able to establish their title and possession of the suit schedule properties. The civil Court premised its reasoning on the ground that Ex.D.19, being part of the judgment in the previous round of litigation between Sri. A.P.Shivegowda and the respondent No.1 will have to prevail between the appellants and the respondents, and if this exhibit were to prevail, the appellants would be entitled to succeed. The civil Court specifically observed that the respondents had not denied the boundaries of the respective properties as asserted by the appellants, and further concluded that the respondents could not deny the boundaries without disputing Ex.P.19 in the light of the earlier judgment in O.S.No.133/1983 and O.S.No.138/1983. However, the respondents impugned the Civil Court’s judgment in the first appeal in R.A.No.35/2017.
10. In the first appeal filed by the respondents, the appellants filed an application under Order XLI Rule 27 of CPC seeking leave of the Court to produce additional documents. The thrust of the appellants’ case insofar as the leave to produce additional documents was that the respondents had managed a survey proceedings in the month of May 2016 without notice to the appellants and they were trying to rely on such survey records to buttress their case that the appellants were interfering with the respondents’ possession. However, the additional documents, which included the proceedings preceding the grant in favour of Sri. A.P.Shivegowda and the respondent No.1 demonstrate that the respondents after the decree in O.S.No.133/1983 and O.S.No.138/1983 are trying to claim a portion for which there was a decree in favour of Sri.
A.P.Shivegowda. The appellate Court framed following points for consideration:
“1) Whether additional evidence sought to be produced by the plaintiff No.2 i.e., respondent No.2 are necessary to determine the dispute between the parties?
2) Whether the plaintiff proves that they are the owners in possession of suit schedule item no.1 and 2 properties and interference by defendants?
3) Whether the civil Court has committed any error of law or facts and interference by this court in the judgment and decree is necessary?
4) Whether order?”
11. The appellate Court has taken up all the three points for consideration simultaneously. The appellate Court, while concluding that the judgment and decree in O.S.No.133/1983 and O.S.No.138/1983 could be binding on both the appellants and the respondents, has held that the appellants had not described the suit schedule properties as per the schedules mentioned in the earlier decree. The question of identity of the respective properties having been decided in the earlier judgment in O.S.No.133/1983 and O.S.No.138/1983 will have to prevail between the parties, and the description of the properties in the present suit, despite the partition amongst the family members of Sri A P Shive Gowda, would have to conform to the earlier decision. Therefore, the appellate Court modified the civil Court’s judgment declaring the appellants as the owners of the 4 acres of land in Sy No. 84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk with reference to Ex. D.19. Insofar as the application filed by the appellants under Order XLI Rule 27 of CPC, the appellate Court concluded that the additional documents would not be necessary in view of its other finding.
12. In the light of the rival submissions, the substantial questions of law that arise for consideration in this appeal are:-
“a) Whether the appellate Court has erred in framing appropriate points for its determination as contemplated under Order XLI Rule 31 of CPC, and whether the appellate Court’s failure to frame appropriate points for determination has resulted in miscarriage of justice.
b) Whether the appellate Court could have granted a decree for 4 acres when the appellants themselves had sought for declaration of title and permanent injunction in respect of 1 acre and 30 guntas based on the registered Partition Deed dated 15.11.1993 a deed executed along with Sri. A.P.Shivegowda, one of the parties to the proceedings in O.S.Nos.133/1984 and 138/1984.
c) Whether the appellate Court has erred in rejecting the application filed by the appellants under Order XLI Rule 27 of CPC seeking leave to produce additional documents.
The learned counsel for the appellants and the learned counsel for the respondents have been heard on the aforesaid substantial questions, and with their consent, the appeal is taken up for final disposal.
13. In answering the first of the aforesaid questions, it would be useful to refer to the decision of the Hon’ble Supreme Court in A Amalorpavam v. R C Diocese of Madurai reported in (2006) 3 SCC Page 224.
“The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination.”
The Hon’ble Supreme Court has further declared that when there is proper appraisement of the respective cases, and weighing and balancing of the evidence, facts and the other considerations appearing on both sides by the appellate court, and if the same is clearly manifest by the perusal of the judgment, it would be a valid judgment even though it does not contain the points for determination. It would be relevant to emphasize the objective of Order XLI Rule 31 of CPC as emphasized by Hon’ble Supreme Court, and it is stated thus:
“The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.”
14. The appellants’ suit is for declaration of title and permanent injunction against respondents for two portions of the land in the original survey No. 84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk viz., 84/P3 (measuring 1 acre) and 84/P5 (measuring 30 guntas). But the appellate Court has decreed the suit granting declaration of title to 4 acres of land in Survey No. 84 of Anjjor Village, Gonibeedu Hobli, Mudigere Taluk and also permanent injunction therefor, and this is because of the judgement and decree in the earlier proceedings in O.S. Nos. 133/1983 and 138/1983. The appellate Court has qualified such declaration of title and grant of permanent injunction by reference to Exhibit P.27. Thus, it is obvious that the appellate court, being anxious to ensure that the parties do not dilate from the judgement and decree in the prior proceedings, has not examined the real controversy between the appellant and the respondent.
15. The real controversy between the appellants and the respondents is about the identity of the property as ascertained by the appellants. The appellants’ case is that such dispute arises because of certain events after the judgement and decree in the earlier proceedings in OS Nos.133/1983 and 138/1993, and such events include lodging of information by both the appellants and respondents with the police about certain illegal acts of interference and trespass during the pendency of the proceedings before the civil Court. The respondents themselves vide Communication dated 27.5.2016 – Ex.P20, which is issued during the pendency of the proceedings before the civil Court (and, which is also referred to by the civil Court) have informed the Senior Officers of the district of Chikkamagalur that they were put in possession of an extent of 2 acres granted to the respondent No.1 after the same was renumbered as Survey No.100 on the conclusion of a survey proceedings, and that they were put in possession in the presence of certain police officers and the Executive Magistrate. The respondents have referred to this even in the affidavit filed by the respondent No.2 in support of the application filed under Order XLI Rule 5 of CPC before the appellate Court. As such, the appellate Court had to decide on the controversy about the description/ identity of the suit schedule lands in the light of the evidence as regards the subsequent events, if any, without reiterating a decree which neither could not have been denied by any. The appellate Court has not decided this controversy, and it would be reasonable to infer that the adjudication of this controversy could not have escaped if the appellate Court had formulated appropriate point for determination.
16. The appellant’s case is that survey proceedings relied upon by the respondents are challenged, and such challenge is pending consideration before the Deputy Commissioner, and that they want to place on record, under the provisions of Order XLI Rule 27 of CPC additional evidence, which according to them, would demonstrate that the survey of the respective lands was motivated. But they could not produce those records because they were seized as part of an ongoing enquiry by the Karnataka Lokayukta. The appellate Court not only failed to decide the real controversy because it has proceeded on the ground that the controversy between the appellants and respondent is decided because of a prior judgement, but also refused to consider the application for the very same reason.
17. It is settled that the appellate courts can permit additional evidence in appropriate cases when it is of the opinion that necessary grounds are made out for allowing application either under Order XLI Rule 27 (2)(a) or (aa) of CPC, or if the appellate courts are of the opinion that the proposed additional evidence would be necessary for effective and complete adjudication of the real controversy between the parties to the proceedings. A useful reference in this regard could be made to the decisions of the Hon’ble Supreme Court in Union of India v. Ibrahimuddin reported in (2012) 8 SCC 148, and also to caution by the Hon’ble Supreme Court in Jagadish Prasad Patel vs. Shivanath reported in (2019) 6 SCC 82 that a person cannot be permitted to fill up a lacuna in permitting production of additional evidence at the appellate stage. However, in the present case the controversy between is about the alteration of the boundaries of the respective properties, if any, because of certain events subsequent to the judgement and decree in O.S.Nos.133/1983 and 138/1983. The appellate Court therefore, should have seen whether the appellants had made out any ground for allowing the application under Order XLI Rule 27 of CPC instead of rejecting the application as not being necessary.
18. The controversy between the appellants and respondents as regards the identity of the respective properties consequent to any alteration of the boundaries could be better adjudicated if all the revenue/survey records are part of the record and the probative value thereof assessed in the light of the oral evidence and other evidence on record. Further, the appellants have asserted that they could not have produced such revenue/survey records because they were part of an ongoing enquiry by the Karnataka Lokayukta, and this assertion is not contested. Therefore, this Court is of the considered opinion that the appellate Court has erred in rejecting the application under Order XLI Rule 27 of CPC on the ground that the proposed additional evidence would not be necessary. For the foregoing it is opined that the appellate Court has not formulated appropriate points for determination as required under the provisions of Order XLI Rule 31 of CPC, and this has resulted in the appellate Court not deciding on the real controversy and issue. The appellate court has also erred in rejecting the application filed by the appellants under Order XLI Rule 27 of CPC. As such, the appellate Court’s impugned judgement and decree is set aside while restoring the appeal to the board of the appellate Court for reconsideration allowing the application filed by the appellants under Order XLI Rule 27 of CPC before the appellate court. The appellate Court shall, consequent to the application filed by the appellants under Order XLI Rule 27 of CPC being allowed, shall decide on receiving the additional evidence in any of the manner contemplated under Order XLI Rule 28 and 29 of CPC after hearing the appellants and respondents. Therefore, the following:
ORDER The appeal is allowed in part. The judgment and decree dated 23.02.2018 in R.A.No.35/2017 on the file of the Principal District and Sessions Judge, Chikkamagaluru is set aside. The application filed by the appellants under Order XLI Rule 27 of CPC in R.A.No.35/2017 is allowed permitting the appellants to produce the documents mentioned in the memo accompanying such application as additional evidence. The appellate Court is directed to either record evidence itself or formulate appropriate points for consideration and call for report by the Civil Court and thereafter, decide the appeal on merits. The parties shall appear before the first appellate Court, without further notice of first hearing before the appellate Court, on 09.12.2019.
RB/SA Sd/- Judge