IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1537/2010 BETWEEN:
1. SMT.RANGAMMA AGED ABOUT 77 YEARS W/O LATE RANGAPPA R/A LUTTA HANUMAYYANA PALYA KALLAMBELLA HOBLI SIRA TALUK – 572 125.
2. SMT. RANGAMMA AGED ABOUT 47 YEARS W/O CHIKKA HONNAPPA R/O CHINNENAHALLI KALLAMBELLA HOBLI SIRA TALUK – 572 125.
(BY SRI S.R KRISHNAKUMAR, ADVOCATE) AND:
SRI BETTERAIAH AGED ABOUT 42 YEARS ADOPTED SON OF ERABHADRAIAH @ VEERABHADRAIAH R/A KAPENAHALLI, KALLAMBELLA HOBLI SIRA TALUK – 572 125.
…APPELLANTS ...RESPONDENT (BY SRI SHIVARUDRAPPA SHETKAR, ADVOCATE) THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:15.3.2010 PASSED IN R.A.No.49/2009 ON THE FILE OF THE CIVIL JUDE (SR.DN) SIRA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:21.7.2009 PASSED IN O.S.No.79/2008 ON THE FILE OF THE CIVIL JUDGE(JR.DN) & JMFC, SIRA.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the defendants/appellants is directed against the judgment and decree dated 15.03.2010 passed by the learned Civil Judge (Sr.Dn) Sira, in R.A.No.49/2009, wherein the appeal preferred against the judgment and decree dated 21.7.2009 passed in O.S.No.79/2008 by the learned Civil Judge (Jr.Dn) and JMFC, Sira, came to be allowed and consequently, the judgment and decree where the suit of the plaintiff was dismissed came to be set aside and as a result, the plaintiff was declared to be the owner in possession of the schedule property, sale deed said to have been executed by defendant No.1-Rangamma in favour of defendant No.2-Rangamma is not binding on the plaintiff and restraining the defendants from causing obstruction to the peaceful possession and enjoyment of suit property by the plaintiff.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their status as stood before the trial court.
3. The suit schedule property is said to be a vacant land in Block No.1 in Survey No.7, now phoded as Survey No.7/2 measuring 6 acres, assessed at Rs.2.20, situated at Kappenahalli, Kallambella Hobli, Sira Taluk, bounded by:
East : Sy.No.8 now in possession of Nagamma; West : Land of Balaiah;
North : Land of Channappa, Kariyappa and others South: Block No.2 now in possession of Nagojappa.
Originally, suit was filed by one Betteraiah, adopted son of Erabhadraiah @ Veerabhadraiah, aged about 40 years, agriculturist and resident of Kappenahalli village, Kallambella Hobli, Sira Taluk against the defendants viz., (1) Rangamma, wife of Late Rangappa, aged about 75 years, resident of Lutta Hanumaiahna Palya, Kallambella Hobli, Sira Taluk and (2) Rangamma, wife of Chikkahonnappa, aged about 45 years, resident of Chinnenahalli village, Kallambella Hobli, Sira Taluk.
4. The suit that was filed is for the relief of declaration that the plaintiff is the owner of the suit schedule property, to hold the sale deed dated 02.08.2006 executed by defendant No.1 in favour of defendant No.2 will not bind on the plaintiff and it is null and void and for permanent injunction restraining the defendants, their agents, servants, workmen and all others claiming under them from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property in any mode or manner.
5. The trial Judge was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to 25 on behalf of plaintiff. On the other hand, no oral or documentary evidence is produced by the defendants.
6. The trial Judge after considering the oral and documentary evidence answered the points raised for consideration and dismissed the suit of the plaintiff with costs. However, on an appeal being preferred by the plaintiff before the First Appellate Court, dismissal of the suit was set aside and consequently, suit was decreed the granting the reliefs as mentioned above. The said judgment and decree of the first Appellate Court is challenged in this appeal by the defendants.
7. Learned counsel for the appellants/defendants Sri. Krishna Kumar would submit that defendants could not contest the matter before the trial court though after receipt of summons, they had engaged a counsel to defend them. The learned counsel would further submit that the claim of the plaintiff Betteraiah was that he inherited the schedule property from his father Veerabhadrappa in the capacity of adopted son. But on the other hand, it is the case of the defendants that defendant No.1 –Rangamma is the wife of Rangappa who purchased the suit land from Veerabhadrappa on 06-01-1965 for the cash consideration under the registered sale deed. Learned counsel would further submit that Rangapa, purchaser of the said land died on 10.02.1993 and the title of the schedule property with possession devolved upon his wife Rangamma who is the first defendant. He would further contend that defendant No.1 Rangamma, wife of Rangappa sold the suit schedule land in favour of defendant No.2- Rangamma (incidentally the same name) and plaintiff Betteraiah sought for declaration of title, status and possession in respect of the schedule property himself and possession of the same respectively.
8. Learned counsel Sri. Krishna Kumar would further submit that the judgment and decree passed by the learned trial Judge is being used against the defendants, wherein defendant No.1 having lawful title and possession of the schedule property sold it to the defendant No.2 and sought to remand the matter for reconsideration.
9. Learned counsel for respondent/ plaintiff Sri.Shivarudrappa Shetkar, would submit that the appellants cannot seek for allowing the appeal, for the very reason that they had a very long sleep and were not awake despite the opportunities were given in series. He would further submit that they cannot seek the assistance of the Court.
10. In the circumstances, as could be seen, though the defendant No.1 Rangamma, wife of Rangappa and defendant No.2 Rangamma placed their appearance before the trial court they did not chose to contest the case and the matter was disposed of on 21.07.2009 and suit was dismissed. The appeal preferred by the plaintiff-Betteraiah in R.A.No.49/2009 before the First Appellate Court came to be allowed on 15.3.2010 granting the reliefs as prayed for.
11. In the circumstances of the case, this Court has framed the following substantial question of law on 05.07.2010 and on 20.06.2011:
05.07.2010 (a) Whether the lower Appellate Court was justified in reversing the considered and reasoned judgment and decree passed by the trial court without assigning reasons as to how such finding of the trial court was improper?
(b) Whether the Lower Appellate Court was justified in holding that the respondent was the adopted son of the original owner, late Veerabhadraiah in the absence of any legal or acceptable evidence adduced by the respondent in this regard?
(c) Whether the Lower Appellate court was justified in holding that the respondent was the owner in possession and enjoyment of the suit schedule property in the absence of any legal or acceptable evidence adduced by the respondent in this regard?
(d) Whether the lower Appellate court was justified in drawing adverse inference against the Appellants by failing to afford an opportunity to the appellants to substantiate their defence and contest the matter?
(e) Whether the judgment and decree passed by the lower Appellate Court reversing a categorical finding of fact recorded by the trial court is in accordance with law?
26.06.2011 Whether the lower Appellate Court was justified in reversing the judgment and decree of the trial court and in holding that the respondent was the adopted son of the original owner, late Veerabhadraiah in the absence of any legal or acceptable evidence adduced by the respondent?
12. It is to be seen that the defendants 1 and 2 are the appellants respectively in this appeal. They seek the setting aside of the decree of the learned first Appellate Judge passed in R.A.No.49/2009. The suit that was filed by the plaintiff Betteeraiah is for declaration of title over the schedule property and declaration of his status as the adopted son of Veerabhadraiah and the relief of injunction to restrain the defendants from interfering with possession and that came to be allowed by virtue of judgment and decree passed by the first appellate court on 15.03.2010, wherein the judgment and decree passed by the learned trial Judge in O.S.No.79/2008 in dismissing the suit of the plaintiff was set aside. It is stated that the defendants(appellants) engaged the counsel before the trial court, but failed to contest further, because of this, their written statement was taken as nil and the matter was posted for evidence of the plaintiff. Plaintiff examined himself as PW1 and got examined two other witnesses as PWs 2 and 3 and got exhibited the documents as per Exs.P1 to P25.
13. Learned counsel for the appellants would submit that claim of adoption of the plaintiff by original owner of the schedule property, Veerabhdraiah is neither true nor proper and the relationship is raised out of nothing except to grab the suit schedule property.
14. Defendant No.1-Rangamma is the wife of one Rangappa and the said Rangappa is stated to have purchased the suit property under the registered sale deed on 06.01.1965. Rangappa died on 10.02.1993 living behind his wife Rangamma who is defendant No.1 as his legal representative, as a result of which, she succeeded to the estate of said Rangappa and in the course of time, she sold the schedule property to defendant No.2-Rangamma, wife of Chikkahonnappa under the registered sale deed dated 02.08.2006.
15. Now the defendants are seeking an opportunity to contest the matter on merits. In this connection, it was submitted by the learned counsel for appellants/defendants that the defendants are village people and do not have that amount of required awareness over their rights. However, learned counsel for respondent/plaintiff while denying the said submissions would submit that he has filed all the documents which would work out to his merit.
16. Yes, the defendants were not alert and law does not help those who are undergoing deep sleep. However, when a person is arrayed as defendants deserves a chance to be heard on merits. Nodoubt, the opportunity includes the right to file written statement, adduced oral evidence, cross examine the witnesses and to produce documentary evidence of advisory.
17. In the circumstances, the relevant factors is the ownership of Veerabhadraiah is not disputed by either of the parties. The question is, he sold the same to Rangappa under the registered sale deed dated 06.01.1965. Learned counsel for respondent has also submitted that the very suit land was granted to Veerabhdraiah on 22.2.1965, whereas, it is claimed by defendant No.1 that her husband Rangappa purchased the same on 06.01.1965, nearly a month and 08 days earlier to the grant. The other bone of contentions are: adoption of the plaintiff by Veerabhadraiah, the sale deed executed by Veerabhadraiah in favour of Rangappa dated 06.01.1965, the succession of defendant no.1 to the schedule property under her husband Rangappa and registered sale deed effected in respect of the schedule property by the said Rangamma defendant No1., wife of Rangappa in favour of defendant No.2 Rangamma.
18. Insofar as the adjudication of this appeal, it is not done on all the points, however on the concept of Principles of Natural Justice and opportunity deserves to be provided to the appellant. And the fact that unless all the points are adjudicate it may not be easy for answering substantial questions of all.
19. In the overall circumstances of the case, the fact remains that hall marks of adjudication of rights and duties stay in complying the principles of natural justice 20. If the defendants are given an opportunity to present their case before the trial court, no prejudice will be suffered by the ends of justice.
21. In the context and circumstances, the spirit of opportunity suggests that nodoubt, the trial Judge dismissed the suit, regard being had to the fact that defendants did not contest there, still the fact remains that they were set exparte and to remove cropping up of further difficulties, it is just and proper to remit the matter to the trial court. The substantial questions of law raised by this court on two occasions are answered accordingly. In the light of the consumption of time from the year 2008, it is desirous that the matter be disposed of at an earliest. In order to avoid the wastage of judicial time, the parties are directed to appear before the trial court.
22. In the facts and circumstances of the case, judgment and decree passed by the learned First Appellate Judge in RA No.49/2009 is liable to be set aside and matter is to be remitted to the trial court.
23. For the foregoing reasons, I pass the following:
ORDER (i) The appeal is hereby allowed.
(ii) judgment and decree dated 15.03.2010 passed by the learned Civil Judge (Sr.Dn) Sira, in R.A.No.49/2009, is hereby set aside and the matter is remitted to the trial Court for reconsideration.
(iii) The stage of the case is placed at filing of written statement.
(iv) The parties will not be getting further notice from the trial court and they are notified of the hearing date as 22.04.2019 and the defendants shall file their written statement strictly within the time period provided in Code of Civil Procedure. Further, the draft issues be furnished by the plaintiff and that the learned trial Judge shall permit the examination of plaintiff and defendants and their respective witnesses. The whole process shall be concluded, as expeditiously as possible, but not later than an outer limit of three months from the first hearing date.
(v) However, plaintiff is entitled for cost of Rs.5,000/- payable by the defendants.
Misc.Civil 9477/2010 is filed by the appellants under Order 41 Rule 27 read with Section 107 and 151 of CPC seeking permission to file additional evidence and also to adduce oral evidence on their behalf. The same is allowed. However, it is for the trial court to assess the evidentiary value of the said documents.
tsn* Sd/- JUDGE