IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous Second Appeal No.80/2016 Between:
PREMA SINGH DAUGHTER OF LATE GANESH SINGH AGED ABOUT 65 YEARS, RESDING AT ARJI VILLAGE, VIRAJPET TALUK KODAGU DIST – 571 218.
... APPELLANT (BY SRI. SHARAVANTH ARYA TANDRA., ADVOCATE FOR; M/S. POOVAYYA & CO., ) And:
KARTHACHIRA C THIMMAIAH AGED ABOUT 88 YEARS SON OF LATE CHENGAPPA RESDIING AT ARJI VILLAGE, VIRAJPET TALUK KODAGU DIST – 571 218. (SINCE DECEASED BY HIS LR S) 1. SMT. K.T. GANGAVVA WIFE OF LATE KARTHACHIRA THIMMAIAH, AGED ABOUT 90 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUKK, KODAGU DIST – 571 428.
2. KARTHACHIRA T BHEEMAIAH SON OF LATE KARTHACHIRA C. THIMMAIAH, AGED ABOUT 60 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
3. SMT. NALINI DAUGHTER OF LATE KARTHACHIRA C. THIMMAIAH WIFE OF PANDANDA RAMESH, AGED ABOUT 55 YELARS, RESIDENT OF ARAPATTU VILLAGE, MADIKERI TALUK, KODAGU DIST – 571 218.
4. SMT. ASHWINI DAUGHTER OF LATE KARTHACHIRA C. THIMMAIAH WIFE OF KOTERA GANESH, AGED ABOUT 53 YEARS, KADANUR VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
5. SMT. PADMINI DAUGHTER OF LATE KARTHACHIRA C. THIMMAIAH, WIFE OF BALLATIKALANDA BOPANNA, BETOLI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
6. KARTHACHIRA M. MACHAIAH SON OF LATE MADAPPA, AGED ABOUT 88 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST - 571218.
7. SMT KARTHACHIRA PONNAMMA WIFE OF LATE MACHAIAH AGED ABOUT 82 YEARS.
8. SRI. KARTHACHIRA MEDAPPA SON OF MACHAIAH, AGED ABOUT 55 YEARS.
9. SMT. KARTHACHIRA AIYAPPA SON OF LATE MACHAIAH AGED 51 YEARS.
10. KARTHACHIRA REKHA DAUGHTER OF LATE MACHAIAH WIFE OF B.U. BOPAIAH AGED 58 YEARS.
11. KARTHACHIRA RENU DAUGHTER OF LATE MACHAIAH WIFE OF KALAIAH, AGED 53 ALL RESIDENT OF ARJI VILLAGE KALLUBANE POST VIRAJPET TOWN SOUTH KODAGU – 571 218.
12. KARTHACHIRA.K. KARIAPPA SON OF LATE KUSHALAPA, AGED ABOUT 76 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
13. SMT. SUSHEELA BAI WIFE OF LATE GANESH SINGH, AGED ABOUT 93 YEARS RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
14. SATHYANARAYANA SINGH SON OF LATE GANESH SINGH, AGED ABOUT 63 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
15. KRISHNA SINGH SON OF LATE GANESH SINGH, AGED ABOUT 61 YEARS RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
16. PRAKASH SINGH SON OF LATE GANESH SINGH, AGED ABOUT 56 YEARS, RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
17. UMA SINGH DAUGHTER OF LATE GANESH SINGH, AGED ABOUT 55 YELARS RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
18 . CHANDRABAN SINGH SON OF LATE GANESH SINGH AGED ABOUT 53 YEARS RESIDENT OF ARJI VILLAGE, VIRAJPET TALUK, KODAGU DIST – 571 218.
... RESPONDENTS (BY SMT. K. SAROJINI MUTHANNA., ADVOCATE FOR R2- R5, R6 (A-E) & R7;
SERVICE OF NOTICE TO R8-R13 IS DISPENSED WITH VIDE ORDER DATED 27.04.2017 ) THIS MISCELLENEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(U) R/W. SEC. 104 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.7.2016 PASSED IN R.ANO.52/2010 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI, ISTTING AT VIRAJPET, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.08.2010 PASSED IN O.S.NO.101/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET, REMITTING BACK THE MATTER TO THE TRIAL COURT TO DISPOSE OF THE CASE.
THIS MISCELLENEOUS SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the plaintiff in O.S.No.101/2002 on the file of Senior Civil Judge, Virajpet (for short ‘trial Court’) calling in question the judgment dated 23.07.2016 in RA No.52/2010 on the file of the II Additional District and Sessions Judge, Kodagu - Madikeri sitting at Virajpet (for short, ‘appellate Court’).
2. The appellant has filed the suit in O.S.No.101/2002 for partition of the bane lands in Sy.Nos.121, 140, 145/1,138, 161, 148/1 and 86/1 of Arji village, South Kodagu. The appellant arrayed her family members as defendant Nos.1 and 2 (respondent Nos.1 and 2). These respondents contested the suit asserting that the suit schedule lands are bane lands attached to different wet lands. The different members of “the Karthachira family”, as reflected in the RTC are entitled for the usage rights of the suit schedule lands. In the light of this contention, the trial Court framed inter alia Issue No.4 which required the respondent Nos.1 and 2 to prove that the suit was bad for non-joinder of necessary parties. The trial Court, on appreciation of the evidence on record, answered the Issue No.4 against the respondent Nos.1 and 2 and held that they were unable to establish that the suit was bad for non- joinder of necessary parties. The trial Court opined that the respondent Nos.1 and 2 had submitted an application before the revenue authorities for deleting the names of different members of the “Karthachira family”, and only the respondent Nos.1 and 2 and the wife of Sri Ganesh Singh i.e., the appellant’s mother were parties to the proceedings. If indeed the other members of the “Karthachira family” were to have any interest in the suit schedule lands, those family members would have been made parties. The respondent Nos.1 and 2, who did not include such other members of the “Karthachira family”, cannot contend that the suit was bad for non-joinder of necessary parties. The trial Court in answering the other Issues, including the issue whether the appellant proves that her father/family members and the respondents Nos.1 and 2 are the joint owners and entitled for undivided share in the suit schedule properties, decreed the suit declaring that the appellant along with defendant Nos.3 to 8 would be entitled for half a share.
3. The respondent Nos.1 and 2 being aggrieved by the trial Court’s judgment, impugned the same in the first appeal in RA No.52/2010. The appellate Court, formulated different points for determination, and such points for determination are as follows:-
“1. Whether the plaintiff proves that the defendant Nos.1 and 2 Ganesh Singh and defendant Nos.3 to 8 are joint owner in joint possession of the schedule properties.
2) Do they prove their half share in the schedule properties.
3) Whether the defendants 1 and 2 prove that plaintiff is not in possession or in deemed joint possession over the schedule properties.
4) Do they prove that the suit is bad for non-joinder of necessary parties.
5) Whether the valuation made and Court fee paid is correct.
6) Whether the plaintiff is entitled for partition of their share in the schedule properties.
7) What order or decree.”
The appellate Court in answering these points for determination, has concluded that according to the Exs.P.1 and P.2, certain persons who are not parties to the proceedings are stake holders. The suit could not have been decreed without hearing these persons. Further, the appellate Court has considered that the RTCs’ show the names of certain third persons who are not parties to the proceedings. The appellate court, in the light of the undisputed fact that the suit schedule properties are bane lands attached to certain wet lands and every owner of such wet lands would be entitled to use of the attached bane lands, has opined that a suit for partition would be bad for non-joinder of necessary parties without including all those who would have interest in the subject properties. But, as the suit cannot be dismissed on the ground of non- joinder of necessary parties, the appellate Court has found it appropriate to remand the suit for fresh consideration by the trial Court with a direction for impleadment of all the persons who would be interested in the wet lands to which the suit bane lands are attached.
4. The learned counsel for the appellant submitted that the appellate Court could not have resorted to remanding suit for re-consideration by the trial Court as a matter of course. The appellate Court, on concluding that the suit was bad for non-joinder of necessary parties/properties, should have itself extended necessary opportunities to the parties to carry out such amendments, frame issues and record evidence, if necessary, and decide the appeal on merits. The appellate Court’s approach according to the learned counsel, in remanding the suit would be impermissible in law. The learned counsel relies upon the decision of this Court in Sri Gopala vs. Revanna J. reported in ILR 2017 KAR 2014 and another decision in Sarswathamma vs. Vasanthammani Urs in MSA No.40/2013 decided on 13.1.2015 in support of his contention.
5. The learned counsel for the contesting respondents has supported the impugned judgment of the appellate Court. The learned counsel submitted that because of the non-joinder of necessary parties/properties, the real controversies which ought to have been decided in a suit for partition, especially partition of what are undisputedly the bane lands, are not decided, the appellate Court is justified in remanding the suit for reconsideration.
6. In the light of these submissions, the question that arises for consideration in this appeal is:
“Whether the appellate Court has erred in remanding the suit to the trial Court for reconsideration without itself deciding on the appeal with opportunity to the parties to include the necessary parties/properties and recording additional evidence.”
7. It is settled that the appellate Court has a wider jurisdiction under Section 96 of Code of Civil Procedure. The appellate Court in exercise of its appellate jurisdiction under Section 96 of CPC can not only re-appreciate the evidence but also whenever justified frame additional issues and permit the additional evidence or call for the report on the additional issues from the trial Court. A judgment by the original Court, which is based on reasoning should not be set aside unless it is found that the judgment of the original court is perverse, capricious or irregular. However, it is also equally settled that if real controversy of the parties is not adjudicated upon, and there cannot be any adjudication at the appellate’s stage because there has been no trial whatsoever, on the real controversy, the appellate Court could indeed in exercise of its power under Order XLI Rule 23 (A) of CPC set aside the judgment of the trial Court and call upon such Court to adjudicate the real controversy between parties.
8. In the present case, it is undisputed that the suit lands are bane lands, and it is also beyond the pale of dispute that the title of bane lands vests with the State but with the right of the owners of adjacent lands to use them. The respondent Nos.1 and 2 have furnished the details of the adjacent wet lands. The owners of these wet lands are not made parties to the proceedings. There cannot be any adjudication of the rights in bane lands with the exclusion of the owners of these wet lands. The questions that are necessary to adjudicate on the respective rights to the use of the bane lands, the real controversy, is not decided by the trial Court. But the trial Court has decreed the suit declaring that the appellant is entitled for a share with her family member in the bane lands. This would be irregular. Therefore, the appellate Court has called upon the trial court to permit the appellant to include all the interested persons and record additional evidence and decide the appeal on merits. If the appellate Court’s judgment is examined from this perspective, this Court is of the considered view that the appellate court has not erred in setting aside the trial Court’s judgment and remitting the matter back to the trial Court for reconsideration. The appellate Court has directed the trial Court to dispose of the judgment within one year from the date of receipt of certified copy of its judgment. The question of law framed is answered accordingly. As such, no interference is called for in this appeal. However, because of the pendency of this appeal, the appellate Court’s judgment is modified directing the trial Court to dispose of the restored suit within one year from the date of receipt of certified copy of this judgment. The appeal is accordingly disposed of.
Sd/- Judge SA Ct:sr