IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI REGULAR SECOND APPEAL NO.662 OF 2008 BETWEEN:
1. SMT LEELA W/O LATE KRISHNA MOOLYA MAJOR 2. SRI NARAYANA MOOLYA S/O MANKU MOOLYA MAJOR 3. SRI EASHWARA MOOLYA S/O MANKU MOOLYA MAJOR 4. SRI CHANDU MOOLYA S/O MANKU MOOLYA MAJOR 5. SRI N SADASHIVA S/O MANKU MOOLYA MAJOR ALL ARE RESIDING AT NEKKARE, MANILA VILLAGE, BANTWAL TALUK, D K DISTRICT ….APPELLANTS (BY SRI. N SHANKARANARAYANA BHAT, ADVOCATE) AND:
SMT JAYALAKSHMI W/O SRI KRISHNA BHAT MAJOR R/AT NEKKARE ,P.O. MURUVA BANTWAL TALUK D K DISTRICT.
….RESPONDENT (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 28.8.2007 PASSED IN R.A.NO.5 OF 2006 (RE- NUMBERED AS R.A.NO.110/2006) ON THE FILE OF THE CIVIL JUDGE (SR.DVN) AND JMFC, BANTWAL, D.K., DISMISSING THE APPEL AND UPHOLDING THE JUDGMENT AND DECREE DATED: 5.12.2005 PASSED IN O.S.NO.172 OF 2001 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DVN.), BANTWAL, D.K.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Defendants have filed this second appeal challenging the judgment and decree dated 28.8.2007 passed in R.A.No.5 of 2006.
2. Parties are referred to as per their ranking before the trial Court.
3. Brief facts of the case are as follows :-
The plaintiff had filed a suit for bare injunction restraining the defendants their men, servants, agents etc. from entering into or interfering or disturbing with her peaceful possession and enjoyment over the suit schedule property.
It is stated that the plaintiff is in exclusive possession and enjoyment of plaint ‘A’ schedule property since more than 25 years. Ever since grant of the land in the name of plaintiff’s husband, both the plaintiff and her husband are in possession of the said land by building a house, hatti, kottige etc. The plaintiff has dug three big tunnels to irrigate her properties. The tank is also situated therein. There is a mud agalu of 4 feet height on the sides of their property. The plaintiff has planted fruit bearing trees in ‘A’ schedule property. Recognising the possession of the plaintiff over the plaint A schedule properties, records were built up in the name of plaintiff on 6.9.86 in NCRSR 534/85-86. Plaintiff was called upon to pay penalty of Rs.204/-. Accordingly the plaint deposited the said penalty. Thereafter, the plaintiff had filed Form No.50 for regularization but the application was improperly rejected without considering the possession of the plaintiff. The appeal filed before the Assistant Commissioner also came to be dismissed for default.
The plaintiff filed a writ petition before this Court. This Court remanded the matter to the Assistant Commissioner to dispose of the matter afresh in accordance with law by quashing the order of dismissal. Since the defendants are trying to interfere with the plaintiff’s peaceful possession and enjoyment, she was constrained to file the suit.
The defendants appeared and filed written statement. They denied possession of the plaintiff over the suit schedule property. The defendants contend that they had filed an application for grant of ‘A’ schedule property in Form No.53 before the Land Grant Committee. The same is pending for disposal. After filing the suit, the plaintiff along with her husband forcibly trespassed into the plaint ‘A’ schedule property. They have cut the standing trees for which defendant No.4 has given complaint before the Vittal Police Station on 19.10.2001. The defendants further contends that they are in actual possession of the ‘A’ schedule property and they have made improvements. Kumki rights of the plaintiff have not been extinguished by prescribed authorities. The suit is bad for non-joinder of necessary parties. Hence, sought for dismissal of the suit.
The trial court on the basis of the pleadings framed the following issues :-
ISSUES:
1. “Whether the plaintiff proves that the plaintiff is in exclusive possession and enjoyment of the plaint ‘A’ schedule property as on the date of the suit?
2. Whether the plaintiff proves that the defendants are interfering with the peaceful possession of the plaint ‘A’ schedule property?
3. Whether the plaintiff is entitled for the relief claimed in the suit?
4. What order or decree?”
The plaintiff examined two witnesses as PWs 1 and 2 and got marked documents as exhibits P1 to P18. The defendants examined two witnesses as DWs 1 and 2 and got marked documents as exhibits D1 to D11. The trial Court has held that the plaintiff is in exclusive possession and enjoyment of the plaint schedule property as on the date of suit and also held that the defendants tried to interfere in the peaceful possession and enjoyment over the suit schedule property and answered issue No.1 to 3 in affirmative and consequently decreed the suit of the plaintiff.
The defendants filed an appeal R.A.No.5/2006 which came to be renumbered as R.A.No.110/2006. The Appellate Court framed the following points for consideration :-
1. Whether the trial court has framed correct issues and the findings and reasons given are harmonious to each other ?
2. Whether the appellants makes out the grounds of appeal as set out in the appeal memo?
3. Whether the judgment and decree passed in trial court is illegal requiring my interference to be set aside?
4. What order ?
and held that the Trial Court has framed correct issues and the reasonings given by the trial Court are correct and the defendants have not made out any grounds in appeal and consequently dismissed the appeal.
The defendants being aggrieved by the judgment and decree passed in R.A.No.05/2006 and that of the judgment and decree passed by the trial Court in O.S.No.172/01 filed this second appeal.
4. This court admitted the appeal on the following substantial question of law :-
‘Whether the Lower Appellate Court is justified in affirming the judgment of the trial Court without referring to the material evidence and documents placed on record of the trial Court by both the parties?’ 5. Heard the arguments of the learned counsel appearing for the appellants Sri.N.Shankaranarayana Bhat and Sri.G.Balakrishna Shastry for the respondent.
6. From a perusal of judgment of the Appellate Court, it is apparent that the Appellate Court has neither considered the documents nor the evidence placed by the parties before the Trial Court. Though the plaintiff has examined two witnesses and produced documents-Exhibits P1 to P18 and defendants have examined two witnesses and produced documents Exhibits D1 to D11, without discussing the evidence led by the parties and also the documents produced by the parties before the Trial Court, the First Appellate Court has dismissed the appeal without applying its mind.
7. When the appeal is filed under Section 96 of the C.P.C. before the Appellate Court, The Appellate Court, being the last fact finding court, has to appreciate the facts, evidence and documents placed before it. In the present case, the first appellate court has not considered all the said aspects as if being a last fact finding court. The Appellate Court has to decide the appeal as per Order XLI Rule 31 of C.P.C. The said provision reads as under:
Order XLI Rule 31- Contents, date and signature of judgment:
The Judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
The Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original Jurisdiction in respect of suits instituted therein as per Section 107 of C.P.C The judgment passed by the Appellate Court is not in accordance with Section 107 and Order XLI Rule 31 of C.P.C. Hence, the Appellate Court has committed an error in dismissing the appeal without considering the said aspect.
8. Hence, the substantial question of law is answered in favour of the appellants/defendants and I proceed to pass the following ORDER The judgment of the Appellate Court dated 28.8.2007 passed in R.A.No.5/2006 is set aside. Matter is remanded to the first Appellate Court with a direction to re-hear the appeal in accordance with law and pass appropriate order after considering the material placed on record.
It is seen that the learned counsel for the respondent/plaintiff has filed an application for production of additional documents i.e. I.A.1/2015.
The learned counsel for the respondent/plaintiff seeks permission to withdraw I.A.1/2015 with liberty to file before the Appellate Court.
In view of the said submission of the learned counsel for the respondent/plaintiff, I.A.1/2015 is dismissed as withdrawn. However, liberty is granted to the respondent to file the application before the first Appellate Court.
The Appellate Court shall dispose of the said application in accordance with law.
Office is directed to return the documents filed along with the application –IA 1/2015 to the respondent.
Parties are directed to appear before the First Appellate Court on 27.1.2020.
SD/- JUDGE rs