IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2328/2018 BETWEEN:
1. SMT.NAGAMMA W/O LATE RAMACHANDRAPPA AGED ABOUT 63 YEARS 2. SRI MANJUNATH S/O LATE RAMACHANDRAPPA AGED ABOUT 43 YEARS 3. SRI THIPPESWAMY S/O LATE RAMACHANDRAPPA AGED ABOUT 38 YEARS ALL ARE R/AT C.K.PURA EXTENSION 5TH BLOCK, KELAGOTE CHITRADURGA TOWN – 577 501 CHITRADURGA DISTRICT …APPELLANTS (BY SRI B.M.SIDDAPPA, ADVOCATE ) AND:
SRI K.P.UDAYAKUMAR S/O KRISHNAPPA AGED ABOUT 60 YEARS R/AT AVADHANI NAGAR HIRIYUR, CHITRADURGA DISTRICT – 577 598 …RESPONDENT (BY SRI NAIK N.R., ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:20.09.2018 PASSED IN R.A.NO.58/2017 ON THE FILE OF THE 1ST ADDL. DISTRICT AND SESSION JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:16.09.2017 PASSED IN O.S.NO.12/2015 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendants arises out of the judgment and decree dated 20.09.2018 in Regular Appeal No.58/2017 passed by the I Additional District & Sessions Judge, Chitradurga.
2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the plaintiff and set aside the judgment and decree dated 16.09.2017 in O.S.No.12/2015 passed by the I Addl. Senior Civil Judge at Chitradurga.
3. By the said judgment and decree, the Trial Court dismissed the suit of the plaintiff for declaration and permanent injunction.
4. Appellants were the defendants and respondent was the plaintiff before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
5. Subject matter of the suit was the vacant site bearing PID No.7818-5565-A, KTR No.619, measuring East-West: 43-0 feet and North-South: 36-0 feet situated at Channakeshavapura Extension, 5th Block, Chitradurga.
6. Plaintiff filed O.S.No.12/2015 before the I Addl. Senior Civil Judge & JMFC., Chitradurga, seeking declaration of his title and for permanent injunction against the defendants in respect of the suit schedule property.
7. Case of the plaintiff in brief is as follows:
The suit schedule property originally belonged to one Yellamma and Ningappa. Ramachandrappa, the husband of defendant No.1 and father of defendant Nos.2 and 3 was the son of Ningappa. On 10.07.1961 Yellamma and Ningappa representing Ramachandrappa also who was then aged 3 years, as his minor guardian executed the registered sale deed as per Ex.P7. That his father Krishnappa died on 22.4.1998 and he has bequeathed the suit schedule property in plaintiff’s favour under the registered Will dated 09.02.1998. That the defendants without any manner of right are trying to obstruct his possession and thus sought declaration of title and permanent injunction.
8. Defendants contested the suit contending that Yellamma and Ningappa could not have alienated the interest of Ramachandrappa, who was minor and therefore, the sale was invalid. They further disputed the Will set up by the plaintiff and claimed that they were in possession of the property.
They also claimed that they have perfected their title by adverse possession.
9. On the basis of such pleadings, the trial court framed the following issues:
1. Whether plaintiff proves that, his father has purchased suit property as pleaded in para-3 of plaint and was absolute owner in possession of the same till his last breath?
2. Whether he further proves that, he acquired title over suit property as per registered WILL dated 09.02.1998 and is in possession and enjoyment of suit property?
3. Whether the plaintiff proves alleged interference by the defendants?
4. Whether the defendants prove that, they are in possession of suit property more than statutory period adverse to the interest of plaintiff?
5. Whether the plaintiff is entitled to the reliefs as sought?
6. What order or decree?
10. The parties adduced evidence. On behalf of plaintiff, PWs-1 to 3 were examined and Exs.P1 to P11 were marked. On behalf of the defendants, third defendant was examined as DW-1 and one Pakirappa was examined as DW-2 and Exs.D1 to D4 were marked.
11. The trial court after hearing the parties dismissed the suit on the following grounds:
(i) The sale deed Ex.P7 executed by Yellamma and Ningappa representing minor Ramachandrappa was valid;
(ii) Defendants have failed to prove that they have perfected their title by adverse possession;
(iii) The plaintiff has failed to produce the original Will and prove the same as required under Section 68 of the Indian Evidence Act.
12. Aggrieved defendants challenged the said judgment and decree before the first appellate court in R.A.No.58/2017. Perusal of the judgment and decree of the first appellate court indicates that before the first appellate court, plaintiff filed an application under Order XLI Rule 27 CPC for production of the original Will.
13. The first appellate court on hearing the parties by the impugned judgment and decree allowed the appeal and reversed the judgment and decree of the trial court. Further, the first appellate court decreed the suit declaring that the plaintiff is the absolute owner of the property and granted permanent injunction.
14. This Court admitted the appeal to consider the following substantial questions of law:
1. Whether the judgment and decree of the First Appellate Court and consideration of the application filed before it under Order XLI Rule 27 CPC by the First Appellate Court is contrary to Order XLI Rule 31 and Section 107 CPC and under Order XLI Rule 23 CPC?
2. Without passing a considered order on the application of the plaintiff under Order XLI Rule 27 of CPC for production of the original Will dated 09.02.1998 and without giving any opportunity to the defendants to meet such evidence, whether the First Appellate Court was right in holding that the Will dated 09.02.1998 is proved?
15. Sri.B.M.Siddappa, learned Counsel for the appellants submits as follows:
(i) That the first appellate court though makes a passing observation in the judgment that the Will was produced with an application under Order XLI Rule 27 CPC, does not pass a considered order on that application, which is contrary to Order XLI Rule 31 and Section 107 CPC;
(ii) The first appellate court without passing a considered order on such application relied upon the Will produced by the plaintiff without giving an opportunity to the defendants to meet that evidence.
On other counts also, the judgment and decree of the first appellate court is unsustainable.
16. Per contra, Sri.Naik.N.R., learned Counsel for the respondent fairly concedes that there is lapse on the part of the first appellate court in not considering the application under Order XLI Rule 27 CPC appropriately and disposing of the appeal.
17. He further submits that he has no objection for allowing the appeal and remanding the matter to the first appellate court to re-consider the application filed by the plaintiff before the first appellate court and the appeal in accordance with Order XLI Rule 27 CPC and Order XLI Rule 23 & 31 and Section 107 CPC.
18. Though the defendants disputed the validity of the sale deed Ex.P7, the trial court on appreciating the evidence held that the sale deed executed in favour of the father of the plaintiff in respect of the suit schedule property is a valid one. The defendants did not challenge that finding by filing any cross- objection. Therefore, that finding attained finality.
19. However as already observed, before the trial court the original Will was not produced and the attestors to the Will were not examined. Only the certified copy of the Will was produced at Ex.P9. The judgment of the first appellate court indicates that before the first appellate court, plaintiff filed an application to produce the original will.
20. Though the first appellate court observes in para-25 of the judgment that the original Will is produced, it does not discuss anything about the merit of the application filed under Order XLI Rule 27 CPC. Without doing that, the first appellate court relies on the Will produced under that application as additional evidence and holds that the title of the plaintiff is proved and decrees the suit.
21. This Court in Sri Gopala –vs- Ravanna J.
2016(4) KCCR 3488 held that failure of the first appellate court to consider the application under Order XLI Rule 27 CPC along with main appeal vitiates the judgment of the first appellate court.
22. Further, the Hon’ble Supreme Court in Land Acquisition Officer –vs- H.Narayanaiah Laws (SC) 1976 8 60 Civil 644 & 650/94 DD 16.8.1976, held that on allowing the application for additional evidence, the opposite party shall be given an opportunity to meet such evidence, otherwise the judgment based on such additional evidence gets vitiated.
23. The conjoint reading of Section 107, Order XLI Rule 23, 27 and 31 of CPC makes it clear that the appellate Court shall hear the appeal on merits, if at all it finds that the additional evidence sought to be produced is required for adjudication, may allow the application and thereafter either may itself record the evidence, or remand the matter to the trial Court for that purpose and then on giving opportunity to the parties shall dispose of the appeal.
24. In this case as already pointed out, the application under Order XLI Rule 27 CPC was not considered by the first appellate court and no opportunity was given to the defendants to meet the additional evidence produced by the plaintiff in the appeal. Thus, the impugned judgment and decree of the First Appellate court is contrary to Section 107, Order XLI Rule 23, 27 and 31 of CPC and the ratio of the judgments of the Hon’ble Supreme Court and this Court referred to supra and unsustainable. The substantial questions of law are answered accordingly. Consequently, the appeal is allowed.
The judgment and decree dated 20.09.2018 in Regular Appeal No.58/2017 passed by the 1st Additional District & Sessions Judge, Chitradurga, is hereby set aside.
The matter is remanded to the first appellate court for consideration of the matter afresh in the light of the observations made above.
No order as to costs.
In view of disposal of the appeal, I.A.No.1/2018 does not survive for consideration, hence, stood disposed of.
Sd/- JUDGE KNM/-