IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR SECOND APPEAL No.97/2007 BETWEEN:
Sri Beeregowda s/o late Muniyappa dead by LR’s.
a)Smt.Vijiayamma w/o late Beeregowda Aged about 40 years.
b)Sri Bharathkumar s/o late Beeregowda aged about 17 years.
c)Kumari Malashree d/o late Beeregowda Aged about 10 years.
All are r/o Kachuru village Yelegere Post, Chikkaballapura Taluk PIN – 571505.
(Appellants (b) and (c) are minors hence represented by their mother, the 1st appellant Smt.Vijayamma) (By Sri R B Sadasivappa for Sri Srikanth Patil K Advocate) …Appellants AND:
1. Smt.Anjinamma w/o Muniyappa aged about 50 years r/a Guddadhahalli Doddaballapura Taluk.
2. Sri Subbaiah s/o Dodda Kariyappa aged about 70 years 3. Smt.Munivenkatamma w/o late Muniyappa aged major r/o Gowdanahalli Chikkaballapura Taluk Pin – 571505.
4. Sri Manjunatha s/o late Beeregowda aged about 22 years r/o Kachuru village Chikkaballapura Taluk.
5. Sri Ramachandrappa Aged about 59 years.
6. Sri Ashwathappa Dead by his LR’s.
a)Smt.Ashwathamma w/o late Ashwathappa Aged about 52 years.
b)Sri Naveen s/o late Ashwathappa aged about 32 years.
c)Sri Nagendra s/o late Ashwathappa aged about 30 yers.
d)Gayathri d/o late Ashwathappa aged about 26 years.
Respondent Nos.6(a) to 6(d) are R/a No.28, 1st Cross Maramannagundi beedi Amruthahalli, Sahakaranagar Post, Bengaluru-560 095.
7. Sri Krishnamurthy dead by his L.Rs.
a)Smt.Hemamala w/o late Krishnamurthy Aged about 35 years.
b)Karthik s/o late Krishnamurthy Aged about 13 years.
c)Khadhan s/o late Krishnamurthy aged about 11 years.
The LR No.(b) and (c) are being minors represented by their natural guardian mother Smt.Hemamala.
All are r/a No.28, 1st Cross Maramannagundi Beedi Amruthahalli Sahakaranagar Post Bengaluru-560095.
(By Sri J M Umesh Murthy, Advocate for R1, Sri S Koushik, Advocate for R2 …Respondents Sri Janardhana G, Advocate for R5 & R6(a-d) & R7(a)) This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and decree dated 11.10.2006 passed in R.A. No.204/2002 on the file of the Additional Sessions Judge and Presiding Officer, Fast Track Court-V, Chickballapur, dismissing the appeal and confirming the judgment and decree dated 01.10.2002 passed in OS No.50/1991 on the file of the Additional Civil Judge (Jr.Dn.) & JMFC, Chickballapur.
This Regular Second Appeal coming on for hearing, this day, the Court delivered the following:
J U D G M E N T This regular second appeal is filed by the defendant No.2, challenging the concurrent findings recorded by learned the Additional Civil Judge (Jr.Dn) and JMFC., Chikkaballapur, in O.S.No.50/1991, on 01.10.2002 affirmed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court-V, Chikkaballapur, in R.A. No. 204/2002 on 11.10.2006.
2. In order to avoid confusion and overlapping, the parties herein are referred to with their rankings held by them before the trial court.
3. The facts of the case as narrated in the plaint are as under:
The Plaintiff is the daughter of Akkayyamma and late Kariyappa S/o. Muniyappa. Plaintiff’s father Kariyappa died 25 years prior to filing of the suit, leaving behind his wife Akkayyamma and the plaintiff as his legal heirs. The plaintiff’s father, his brother and sisters divided their joint family properties very long back under the Court partition in O.S.No.209/47-48. Plaintiff’s father Kariyappa purchased the suit survey No.64 of Inaminchenahalli village measuring 2 acres 9 guntas in public auction dated 08.05.1951 under reference No. DAR. 74/50-51 dated 28.07.1951 and land bearing Sy.No.191 of Devastanada Hosahalli, Chickballapur Taluk, measuring 10 acres 10 guntas. Till the death of her father, he was in possession of the land. After his death, his wife Akkayyamma and the plaintiff have continued to be in possession of the same.
4. Plaintiff’s mother died about 15 years prior to filing of the suit. Though the plaintiff, after her marriage started living at Guddadahalli, during the rainy season, she along with her husband used to cultivate the suit property. The 2nd defendant who is none other than her father Kariyappa’s brother’s son (cousin brother of the plaintiff), falsely representing before the revenue authorities stating that he is the only legal heir of deceased Kariyappa got changed the katha of the suit property in his name fraudulently. As the defendants without any manner of right, title or possession over the same, tried to interfere with the plaintiff’s possession and enjoyment over the suit property, she filed a suit in O.S.No.50/1991 on 10.01.1991 for declaration of ownership and consequential injunction.
5. The defendant No.1 who is none other than the son of another brother of deceased Kariyappa (cousin brother of the plaintiff), indeed, admitted the entire plaint averments stating that the plaintiff is only legal heir of late Kariyappa and Akkayyamma and requested to decree the suit.
6. The defendant-2 is the son of another brother of father of plaintiff (Kariyappa), defendant No.3 is the wife of brother of Kariyappa.
7. They filed their common written statement inter alia contending that late Kariyappa never married Akkayyamma, but he married one Smt. Nagamma, they had no issue through their wedlock and therefore, the plaintiff is not the legal heir of the deceased Kariyappa.
The 2nd defendant, being the grandson of elder brother of Kariyappa got the katha of the suit property changed in his name and thereby acquired the interest over the suit property.
8. Based on the above pleadings, the trial Court framed as many as 10 issues and on evaluation of the oral and documentary evidence adduced by the parties, by its judgment dated 01.10.2002 passed in O.S.No.50/1991 was held that the plaintiff being the daughter of Kariyappa, born through his wife Akkayamma is the only legal heir of Kariyappa and she is the absolute owner in possession of the suit property which exclusively belongs to Kariayppa, decreed the suit.
9. Challenging the said judgment, the 2nd defendant alone has preferred appeal in R.A. No.204/2002. The learned Judge of the first appellate Court, by the judgment dated 11.10.2006, dismissed the appeal and thereby confirmed the findings of the trial Court. Being aggrieved by the said concurrent findings rendered by the Courts below, the 2nd defendant (cousin brother of the plaintiff) alone is before this Court.
10. While admitting the above appeal for consideration on 15.09.2009, this Court has formulated the following substantial questions of law:
i) Though in the memorandum of appeal filed before the Lower Appellate Court the correctness of the finding recorded by the trial Court on issue NO.7 was challenged, whether the Lower Appellate Court is justified in not recording any finding on the said issue?
ii) Whether the judgment of the lower appellate Court is perverse on account of non-consideration of the challenge to the finding of the trial Court on issue NO.7 and its consequent effect on the maintainability of the suit in view of proviso to Section-34 of the Specific Relief Act?
Additional question of law framed on 15.03.2019 & 29.03.2019 i) Whether in all cases of Declaration of title and possession or permanent injunction, does the relief depend only on title sans possession?
ii) Whether the appellate Court is under a duty to discuss and assign reasons when the issues are based on declaration of status and facts instead of confining to declaration of status?
11. Sri.R.B.Sadasivappa, learned counsel for the appellant-defendant No.2 submits that the learned judge of the first appellate Court failed to appreciate the entire evidence on record with reference to each issues framed by the trial Court and was not justified in disposing the appeal cursorily and hence, the judgment rendered by the first appellate Court is liable to be set aside and prays for remittal of the matter to the first appellate Court for fresh disposal. In support of his submissions, he placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of C. Venkata Swamy –vs- H.N. Shivanna (2018 (1) KCCR 330 (SC) and the judgment rendered by this Court in the case of Rukminibai –vs- Baburao & others (2017 (5) KCCR 74.
12. On the other hand, learned counsel for the contesting respondents argued in support of the findings recorded by the Courts below and prays for dismissal of the appeal.
13. On perusal of the pleadings of the parties, submissions made by the learned counsel and the findings recorded by the trial Court, primarily, the controversy amongst the parties revolves around the question as to whether (1) deceased Kariyappa, the father of the plaintiff had two wives namely Nagamma and Akkayamma, (2) whether, the plaintiff, being the only daughter of Kariyappa, born through Akkayamma is the sole legal heir of said Kariyappa, (3) whether the suit property is the exclusive property of Kariyappa, by virtue of the partition amongst his brother and by virtue of auction purchase (4) whether the 2nd defendant had obtained katha in his name by misrepresentation, after the death of Kariyappa and (5) whether the 2nd defendant is in lawful possession over the property.
14. As could be seen from the findings recorded by the learned judge of the trial Court, indisputably, the records reveals that there was a partition amongst the brothers of late Kariyappa through Court in O.S. No.209/47-48 and earlier to the said partition, the suit property has been granted in the name of the father of late Kariyappa vide document produced and marked as Ex.D.1 in the year 1951 and subsequently, the same has been put into public auction, in which, said Kariyappa purchased the same in the public auction.
15. Apart from that, DWs. 3 & 4 have admitted in their evidence that the suit property was the self acquired property of late Kariyappa. The courts below, based on the records have come to the conclusion that the revenue entries in respect of the suit property stood in the name of Sri. Kariyappa, the father of the plaintiff up to the year 1986 and that the defendant No.2, being the son of elder brother of late Kariyappa, by mis-representation, got the katha transferred in his name from the year 1986 onwards.
16. However, in the appeal No.196/96-97 (Ex.P.17), the same has been set aside by the Assistant Commissioner and remanded the matter to the Tahsildar. Under such circumstances, it is clear that the suit property is the exclusive property of late Kariyappa and he was in possession of the same till his death and thereafter his wife, Akkayamma was in possession of the property. Further, the learned trial judge was pleased to hold that there was corroborative evidence to prove that plaintiff is the daughter of Kariyappa and Akkayamma and the plaintiff being the sole daughter of Kariyappa born through Akkayamma, succeeded to suit schedule property and she is the only legal heir of the entire estate of deceased Kariyappa.
17. It is settled law that the first appellate Court, being a Court of fact and law required to consider the case in its entirety and decide the case on facts as well as on law by addressing all the issues and arrive its own conclusion. The jurisdiction of the first appellate court, while hearing the first appeal is very wide like that of the trial Court and it is open to the appellant to attack all the findings of fact or/and law in the first appeal.
18. It is the duty of the first appellate Court to appreciate the entire evidence and arrive at its own independent conclusion, for reasons assigned, either of affirmance or difference. The judgment of the first appellate Court must reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. It should deal with all issues and evidence led by parties before recording its findings the first appellate Court cannot dispose of the appeal cursorily/mechanically, without appreciating evidence with reference to each issues.
19. It is necessary to mention order XIV Rule 2 of the Code of Civil Procedure which is as under:
“[2. Court to Pronounce judgment on all issues.-(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to.-
(a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance wit the decision on that issue.]”
20. In the case on hand, on consideration of the judgment rendered by the learned judge of the first appellate Court, it is seen that though the trial Court has framed as many as 10 issues and recorded its findings, the learned judge of the first appellate Court has failed to evaluate the material on records with reference to each issues and learned judge of the first appellate Court has fallen short of what is expected of him as an appellate Court. Hence, without expressing any opinion on merits of the case, this Court is of the considered view that the matter requires to be decided afresh by the first appellate Court.
21. In this view of the matter, the appeal is allowed. The impugned judgment dated 11.10.2006 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court-V, Chickballapur in R.A. No. 204/2002 is hereby set aside. The matter is remanded to the first appellate Court for fresh adjudication.
Considering the age and stage of the case, the learned Judge of the first appellate Court shall make an endeavour to dispose of the appeal, as expeditiously as possible, at any rate, within an outer limit of nine months from the date of receipt of the records.
In order to avoid wastage of judicial time, both the parties are directed to appear before the first appellate Court on 25.07.2019, without expecting any notice from the first appellate Court.
In view of the disposal of the main appeal, pending interlocutory applications, if any, shall stand disposed off.
The Registry is directed to transmit the records to the first appellate Court, forthwith.
There is no order as to costs.
Sd/- JUDGE Vr.