IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE K.S. MUDAGAL MISCELLANEOUS SECOND APPEAL No.7/2015 BETWEEN:
1. SRI B.S. BABANNA RAI AGED ABOUT 71 YEARS S/O LATE K. THIMMANNA RAI BOLIKALE KAJE KEYYUR VILLAGE & POST MADAVU,PUTTUR TALUK D.K -574 201 2. MR. MOHANDAS S/O LATE B.S.KINHANNA RAI AGED ABOUT 40 YEARS KUMBRA VOLAMOGORU VILLAGE PUTTUR TALUK D.K-574 201 3. SMT. JALAJA AGED ABOUT 38 YEARS D/O LATE B.S.KINHANNA RAI KUMBRA VOLAMOGORU VILLAGE PUTTUR TALUK D.K-574 201 4. MR. RAJAPRAKASH AGED ABOUT 37 YEARS S/O LATE B.S.KINHANNA RAI KUMBRA VOLAMOGORU VILLAGE PUTTUR TALUK D.K-574 201 5. MRS. BHARATHI AGED ABOUT 30 YEARS D/O LATE B.S KINHANNA RAI KUMBRA VOLAMAGORU VILLAGE PUTTUR TALUK D.K-574 201 6. SMT. LEELAVATHI AGED ABOUT 91 YEARS W/O SUBRAMANYA RAI BOLIKALASHEDI MADAVAU POST PUTTUR TALUK D.K-574 201 7. MRS.SOUMYA AGED ABOUT 30 YEARS D/O LATE B.S. KINHANNA RAI KUMBRA VOLAMOGORU VILLAGE PUTTUR TALUK D.K-574 201 ... APPELLANTS (BY SRI CHANDRANATH ARIGA K., ADVOCATE) AND:
1. MR. B.S. ANAND RAI, AGED ABOUT 75 YEARS S/O LATE K. THIMMANNA RAI BOLIKALASHEDI KEYYUR VILLAGE & POST MADAVU PUTTUR TALUK D.K-574 201 2. MR. B.S. KITTANNA RAI AGED ABOUT 77 YEARS S/O LATE K. THIMMANNA RAI BOLLIKALE KAJE, KEYYUR VILLAGE PUTTUR TALUK, D.K-574 201 ...RESPONDENTS (BY SRI S. VISHWAJITH SHETTY FOR R1; R2 SERVED BUT UNREPRESENTED) THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 23.09.2014 PASSED BY THE COURT OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, SITTING AT PUTTUR, D.K. IN R.A.49/2009 ETC.
THIS MSA COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT This appeal of defendants 2 and 4 to 9 arises out of judgment and decree dated 23.09.2014 passed by the V Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, in R.A.No.49/2009. By the impugned judgment and decree, the First Appellate Court, allowed the appeal of the plaintiff, reversed the judgment and decree of dismissal of O.S.No.103/1998 passed by the Senior Civil Judge, Puttur on 13.03.2009, allowed the application filed by the appellant for adducing additional evidence, recasted issued No2, framed additional issue and remanded the matter to record further evidence and dispose of the matter afresh.
2. Respondent No.1 herein was the plaintiff, respondent No.2 was defendant No.1, one Smt. Tara K. Rai, was third defendant who died during pendency of the suit and she was survived by defendant Nos.4 to 9. Therefore, in the appellate proceedings name of the third defendant did not figure.
3. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Trial Court.
4. The subject matter of the suit was land bearing Sy.
No.65/3 measuring 27 cents and Sy.No.65/9 measuring 1 acre 16 cents situated at Keyyur village, Puttur Taluk.
5. Plaintiff, defendants 1 and 2 and one Kinhanna Rai were sons of one Balakke Hengsu. Kinhanna Rai died on 21.11.1991. Defendant No.3 was his wife. Defendant Nos.4 to 9 were his children.
6. The suit schedule lands were purchased in the name of Balakke Hengsu under registered sale deed dated 16.05.1963/Ex.D.2. On 19.11.1987, there was a partition of family properties between the children of plaintiff, defendant Nos.1 and 2, Kinhanna Rai and children of Neelamma as per Ex.D.5. Balakke Hengsu died on 04.03.1994.
7. Plaintiff filed O.S.No.103/1998 against defendants 1 and 2 (his brothers) and defendants 3 to 9 (legal representatives of his elder brother Kinhanna Rai, alleging that the suit properties were family properties and in the family partition, they were not included with an understanding that they shall be partitioned later. He further contended that later, defendants started denying his right in the property and on examination of records, he found that defendants were claiming that suit properties were absolute properties of Balakke Hengsu and she has bequeathed the same under Will dated 28.01.1992 to defendant Nos.4 to 9. He contended that alleged Will is concocted one, Balakke Hengsu was not in sound disposing state of health and mind for about 10 years prior to her death. Thus, sought for decree of partition and possession of 1/4 share.
8. Defendants 1 and 2 filed written statement contending that the suit schedule property were the properties of Balakke Hengsu and she bequeathed the said properties in favour of defendants 4 to 9 in recognition of their services rendered to her during her old age and ailment. Defendants 3 to 9 filed written statement and contended that the suit schedule properties were self acquired properties of Balakke Hengsu and she has bequeathed them to defendants 3 to 9 under Will dated 28.01.1992.
9. On the basis of the above pleadings, the Trial Court framed the following Issues:
(i) Whether plaintiff has proved that the purchase of plaint ‘A’ schedule property by Balakke Hengsu on 16.05.1963 was in the capacity of Ejamanthi of her ‘Kavaru’ for herself and for the family including himself and the defendants and one Kinhanna Rai the husband of 3rd defendant and father of defendant Nos.4 to 9 as averred?
(ii) Whether the plaintiff has proved that the Will purported to have been executed by Balakke Hengsu on 28.01.1992 in favour of the defendants 3 to 9 is concocted, forged and got up one?
(iii) Whether the Court fee paid is sufficient?
(iv) Whether the suit is barred by estoppel?
(v) Whether the plaintiff is entitled for partition and separate possession of his 1/4th share as prayed?
(vi) What decree or order?
10. Before the Trial Court, plaintiff filed I.A.No.4 for recasting issue No.2 contending that when the defendants 3 to 9 have set up the Will, it is for them to prove that. The Trial Court, after hearing the parties, by order dated 02.08.2002 allowed the application of the plaintiff and recasted Issue No.2, as follows:
“Whether defendant Nos.3 to 9 prove that the deceased Balakke Hengsu had executed her Will on 28.01.1992 bequeathing the suit properties in favour of defendant Nos.4 to 9?”
11. The parties adduced evidence. On behalf of the plaintiff, PW.1 was examined, Ex.P1 to Ex.P3 were marked.
On behalf of the defendants, DW.1 to DW.3 were examined and documents Ex.D1 to Ex.D7 were marked. After hearing the parties, the trial Court dismissed the suit holding that:
i) Admittedly there was partition under Ex.D5 on 19.11.1987;
ii) In Ex.D.5 there was no statement about the plaint schedule property being a family property and reserving the same for partition in future;
iii) The suit property was self acquired property of Balakke Hengsu and she was competent to execute the Will bequeathing the property;
iv) The recitals in Ex.D7 will state that Balakke Hengsu was looked after 10 to 12 years by defendant Nos.3 to 9 when she was suffering due to fracture;
v) Defendant Nos.3 to 9 have proved execution of the Will (Ex.D7) by examining the scribe of the attestator.
12. Plaintiff challenged such judgment and decree in R.A.No.49/2009 before the V Additional District & Sessions Judge, Dakshina Kannada sitting at Puttur. Before the First Appellate Court, the plaintiff filed IA No.4 under Order XLI Rule 27 of CPC seeking to produce the original Power of Attorney dated 13.08.1979 said to have been executed by Balakke Hengsu in favour of the plaintiff. He contended that thumb mark of Balakke Hengsu on Ex.D7-Will is forged one, if the thumb mark on original Power of Attorney is compared with that on the Will that shows forging.
13. The First Appellate Court on hearing the parties formulated the following points for consideration:
“1. Whether the appellant has made out the grounds to receive the original power of attorney as additional evidence and to permit them to lead evidence both oral and documentary evidence, U/Order 41 Rule 27 r/w Sec.151 of C.P.C. under I.A.No.4?
2. Whether the approach of the Trial Court in dismissing the suit of the plaintiff though the plaintiff/appellant has placed evidence on record about the title over the suit properties etc. is erroneous and against the law?
3. Whether the interference of this Court is necessary to set aside the Judgment and Decree passed in O.S.No.103/1998 dated 13.3.2009, and to remand the matter to the Trial Court with a direction to frame additional issue and dispose of the suit afresh as per law, by giving opportunity to the parties to the suit?
4. What Order of Decree?”
14. Ultimately, the First Appellate Court allowed the application and the appeal, remanded the matter to the trial Court to recast issue No.2 and receive additional evidence and then to dispose of the matter afresh. The order of remand was an open remand made on the following grounds:
(i) Plaintiff contends that the Will in question is forged and concocted one and surrounded with suspicious circumstances. Therefore, the trial Court ought to have framed the issue to the effect “Whether the plaintiff proves that the Will propounded by defendant Nos.3 to 9 dated 28.01.1992 alleged to have been executed by late Balakke Hengsu is forged and concocted one?”
(ii) Issue No.2 framed by the trial Court does not speak about sound state of mind of the testator. Therefore, issue No.2 shall be recasted as “Whether defendant Nos.3 to 9 have proved that the Will dated 28.01.1992 was duly executed by late Balakke Hengsu while she was in sound disposing state of mind and it is a genuine one”?
(iii) The appellant had challenged the genuineness of the Will. Adhering to the principles of natural justice, the plaintiff shall be given liberty to produce the original Power of Attorney as additional evidence and that is a relevant document.
15. Sri K.Chandranath Ariga, learned Counsel appearing for the appellant seeks challenge of the judgment and decree of the First Appellate Court on the following grounds:
(i) First Appellate Court has failed to exercise its jurisdiction under Section 96 of CPC as it did not appreciate the pleading, evidence and findings of the trial Court;
(ii) Without appreciation of the merits of the case, the First Appellate Court has resorted to remand the matter which is contrary to Order 41 Rule 23 of CPC and the reasons assigned to receive the additional evidence are unsustainable.
16. In support of his contentions, he seeks reliance on the following judgments:
1) Sri Seethappa vs. Smt.Lakshmamma [2017 SCC Online Kar 1558] 2) Municipal Corpn. Hyderabad vs. Sunder Singh [(2008) 8 SCC 485] 3) Kumar and Another vs. Papanna and others [ILR 2010 KAR 3964] 17. Per contra, Sri S.Vishwajith Shetty, learned Counsel for respondent No.1 seeks to support the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Plaintiff alleged that the Will is concocted and forged one and surrounded with suspicious circumstances, but the trial Court failed to frame the issue in that regard. Therefore, the First Appellate Court was justified in recasting the issue and directing the trial Court to frame additional issue;
(ii) The First Appellate Court received the evidence, after it found that the said evidence is required for fair adjudication of the matter;
(iii) The documents sought to be produced were admitted documents.
(iv) The Court cannot reject the additional evidence on mere ground of delay.
18. In support of his contentions he seeks reliance upon the following Judgments:
(1) Daulat Ram Vs.Sodha (AIR 2005 SC 233) (2) Wadi v. Amilal [(2015) 1 SCC 677] (3) Smt.Rutha Bai vs. Mr.Baldev Singh (ILR 2006 KAR 3406) (4) Narayana vs. Kumaran [(2004) 4 SCC 26] 19. Having regard to the rival contentions of the parties, the point that arises for consideration of this Court is:
“Whether the order of the First Appellate Court for receiving additional evidence, recasting issue, framing additional issue and consequent remand order are sustainable in law?”
20. The appeal before the First Appellate Court was appeal under Section 96 of CPC r/w Order 41 of CPC. The Hon’ble Supreme Court in Municipal Corporation Hyderabad’s case referred to supra has held that remand order under Order 41 Rule 23 of CPC is applicable when decree is passed on a preliminary issue. It was further held that the First Appellate Court must first appreciate the entire material and findings of the trial Court. Only if Appellate Court disagrees with findings of trial Court, it has to record such disagreement and then resort to the remand. Further in para 18 of the judgment, it was held as follows:
“18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellant court cannot shirk its duties.”
21. This Court in Kumar’s case referred to supra held that the First Appellate Court shall reconsider the judgment and decree under challenge before it and only thereafter if it finds additional evidence is necessary, reverse the finding of the trial Court and then take recourse to remand.
22. This Court in Shanthaveerappa vs.
K.N.Janadhanachari [ILR 2007 KAR 1127], held that the appeal is continuation of the original proceedings and in effect the entire proceedings are before the Appellate Court. It was held that the Appellate Court has power to re- appreciate the evidence and consider the findings of the trial Court, only then if found necessary to resort to remand.
23. In the case on hand, First Appellate Court has not at all considered the findings of the trial Court on merits. First Appellate Court did not say that it disagreed with the findings of trial Court and if disagreed on what ground. In fact, the First Appellate Court did not formulate any point regarding merits of the findings recorded by the trial Court.
24. Regarding receiving of additional evidence under IA No.4, the First Appellate Court did not advert to Order 41 Rule 27 of CPC. Order 41 Rule 27 of CPC empowers the First Appellate Court to receive the additional evidence only under the following three circumstances:
(i) When the trial Court refused to receive such evidence despite party producing the same;
(ii) Even after exercise of due diligence, if the applicant could not produce such evidence; & (iii) If such evidence is required for complete adjudication of the matter.
25. In the detailed discussion, the First Appellate Court does not whisper anything about the delay in producing the document. The plaintiff said that the document was in his custody. Whether ground assigned by him for the delay in producing was acceptable or not is not at all stated in the order.
26. It was not the case of the plaintiff that the said document was produced before the trial Court and the trial Court refused to receive the same. To say that the document is required for complete adjudication of the matter, the First Appellate Court ought to have first appreciated the pleadings and evidence of the parties presented before the trial Court, the findings recorded by the trial Court on the issue based on such evidence.
27. But the First Appellate Court simply states that the document produced is relevant and for adhering to the principles of natural justice, additional evidence may be permitted. The First Appellate Court further says that even after application is allowed, the defendants have right to rebut such evidence.
28. The purpose of restricting right of adducing evidence under Order 41 Rule 27 of CPC is to avoid retrial. Otherwise there will no end for the litigation. Therefore, in the considered opinion of this Court, the First Appellate Court committed error in accepting the additional evidence, the way it is allowed.
29. So far as recasting of the issue and framing of additional issue as per order 14 CPC as well as the settled principle of law, the issues arise out of the pleading of the parties. The plaintiff in the plaint itself has stated that defendants were setting up the Will dated 28.01.1992 and the said Will is concocted and created one. Contrary to that, the defendants contend that Balakke Hengsu has executed the Will bequeathing the suit properties in favour of defendant Nos.4 to 9 out of love and affection. Out of such pleadings, the trial court had framed issue No.2 as follows:
“Whether plaintiff proves that the Will dated 28.01.1992 in favour of defendant Nos.3 to 9 is concocted, forged and got up one?”
30. On framing such issue, the plaintiffs filed application IA No.4 before the trial Court to recast that issue contending that burden of proving the Will is on defendant Nos.3 to 9 and the burden cannot be casted on them to prove that Will is concocted and forged one. The trial Court by order dated 02.08.2002 allowed the said application and recasted issue No.2 as follows:
“Whether defendant Nos.3 to 9 prove that the deceased Balakke Hengasu has executed her Will on 28.01.1992 bequeathing the suit properties in favour of defendant Nos.4 to 9?”
31. When issue No.2 was so recasted at the instance of plaintiff himself and when that order of recasting issue attained finality, without any further application before the First Appellate Court, the First Appellate Court again recasted the issue.
32. So far as framing of additional issue, the said additional issue was nothing but the issue which was initially framed by the trail Court. Execution of the Will inherently means execution of the document with full understanding of implication of the same. However, by recasting issue No.2, the First Appellate Court made only cosmetic change for that. Further more, though the First Appellate Court recasted the issue and framed additional issue. In para 22 of its judgment and the First Appellate Court directs the trial Court again to frame additional issue.
33. This Court in Sri Vishwaraj and Another vs. Sri B.M.Byrappa and others [ILR 2013 KAR 1711] held that when the Court finds from the material pleadings that would give rise to an issue and considered the validity or correctness of the contentions, the pleadings and a finding is reached on appreciation of evidence mere failure to frame an issue does not vitiate the judgment particularly when parties have understood the pleadings and tendered their evidence in support or opposing such plea. As such non framing of an issue recedes to background.
34. Therefore, the First Appellate Court ought to have first appreciated the case presented by the parties before the trial Court and the findings recorded by the trial Court. Only on disagreeing with such findings, the First Appellate Court ought to have considered the aspect of receiving additional evidence or framing additional issue. In the absence of such exercise, reception of the additional evidence, recasting of issue, framing of additional issue and order of remand are unsustainable in law.
35. The Judgments relied upon by the learned Counsel for the respondents are not applicable to the facts of the case.
36. For the aforesaid reasons, the appeal is allowed. The matter is remanded to the First Appellate Court. The First Appellate Court shall hear the parties afresh in the light of the observations made above and dispose of the appeal and IA No.4 in accordance with law.
To avoid further delay, the parties are directed to appear before the First Appellate Court on 12.03.2019 without any further notice.
Sd/- JUDGE KCM/KSR