IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT R.S.A.No.2005/2013 [DEC-P-INJ] BETWEEN:
SRI H G MANJUNATH S/O LATE H.V.GURAPPA, AGED ABOUT 55 YEARS, R/AT BASAVESHWARA STREET, TARIKERE TOWN – 577 228.
(BY SRI A.MADHUSUDANA RAO, ADV.) AND SMT G S LALITHA W/O SUDHAKAR, AGED ABOUT 52 YEARS, R/AT KODI CAMP, GALIHALLI EXTENSION, TARIKERE TOWN – 577 228.
...PETITIONER …RESPONDENT (SERVICE H/S V/O. DATED 22.02.2018) THIS REGULAR SECOND APPEAL FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.11.2012 PASSED IN R.A.NO.28/2011 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.10.2010 PASSED IN O.S.NO.135/2005 ON THE FILE OF SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is the plaintiff’s second appeal under Section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 19.10.2010 in O.S. No.135/2005 on the file of the Senior Civil Judge and Principal JMFC, Tarikere and the judgment dated 19.11.2012 in R.A.No.29/2011 on the file of the Principal District Judge at Chikkamagalur.
2. The appellant herein is the plaintiff and the respondent herein is defendant in O.S.No.135/2005. For convenience, the parties would be referred as they stand in the original suit.
3. The plaintiff filed suit in O.S.No.135/2005 praying for declaration that he is the owner in possession of the suit schedule property and defendant has no manner of right and interest over the same and consequential permanent injunction restraining the defendant and her men from disturbing the plaintiff’s possession and enjoyment of the suit property. The suit schedule property is a vacant site bearing Municipal No.706 situated in Bhovi Colony, Tarikere Town, measuring East to West 24 metres and North to South 80 metres. It is the case of the plaintiff that the said land was granted to his father by the Deputy Commissioner by virtue of the order dated 21.06.1961 to an extent of 1 acre 2 guntas in Sy.No.23 and 18 guntas in Sy.No.22 of Galihalli Village. It is further stated that subsequently, by order dated 14.02.1987 the suit schedule property was converted into non- agricultural purpose and the said land was fallen within the municipal jurisdiction.
4. On issuance of suit summons, the defendant appeared and filed written statement contending that she is the lawful owner in possession of site No.2 measuring 30X40 formed in Sy.No.23 of Galihalli village, Tarikere Taluk. Further, the defendant contended that she had filed O.S.No.56/1999 for permanent injunction against the plaintiff which was decreed and the counterclaim filed in the said suit by the plaintiff was rejected by the trial Court. Appeal filed by the plaintiff was also came to be dismissed confirming the judgment and decree of the trial Court. The defendant alleged that the plaintiff intends to grab the property.
5. Based on the pleadings of the parties, the trial Court framed the following issues :-
1. Whether the plaintiff proves that he is the owner of the suit schedule property and the defendant has got no manner of any right or interest over the same?
2. Whether the plaintiff further proves that he is in lawful possession of the plaint schedule property as on the date of suit?
3. Whether the plaintiff further proves the alleged interference of the defendant as stated in the plaint?
4. Whether the defendant proves that suit is barred by limitation?
5. What decree or order?
6. The plaintiff examined himself as PW-1 and one more witness as PW-2, apart from marking documents from Ex.P.1 to Ex.P.6. The defendant examined herself as D.W.1 and got marked documents from Ex.D.1 to Ex.D.11. The suit came to be dismissed answering issue Nos.1 to 4 in the ‘negative’. The trial Court held that the plaintiff failed to prove the ownership over the suit schedule property. Aggrieved by the said judgment and decree, the plaintiff filed R.A.No.29/2011 before the Principal District Judge at Chikkamagaluru. The appellate Court by its judgment dated 19.11.2012 dismissed the appeal confirming the judgment and decree passed by the trial Court in O.S.No.135/2005. While dismissing the appeal, the appellate Court observed that the plaintiff has failed to produce cogent and acceptable evidence more particularly, the grant order and the partition deed, wherein, the share was allotted to the plaintiff. Against the concurrent findings of the Courts below, the present appeal is filed.
7. Even though the respondent is served with notice of this appeal, she has remained absent. This Court by order dated 22.02.2018 held service of notice on respondent sufficient.
8. Learned counsel for the appellant would submit that both the Courts have committed serious error in dismissing the suit and confirming the judgment and decree passed by the Courts below. It is his submission that the suit schedule property is a granted land to the father of the plaintiff and further, the said land was converted into non-agricultural purpose. It is his submission that the application filed under Order 26 Rule 9 of the CPC before the trial Court for identification of the property of the plaintiff and the defendant, was dismissed on the ground that the application is premature and has been filed before completion of the trial. He further submitted that the plaintiff had taken ground before the appellate Court with regard to rejection of the application for appointment of Court Commissioner. But the appellate Court erroneously rejected the said application stating that the plaintiff has not challenged the rejection of application for appointment of Court Commissioner. It is his submission that the reasoning of the Courts below is wholly erroneous and perverse. He further submits that the appellate Court ought to have decided whether the appointment of Court Commissioner was necessary in the facts and circumstances of the case moreso Section 105(1) of the Code of Civil Procedure wherein, it provides for raising a ground when the appeal is filed against judgment and decree. Learned counsel for the appellant also pointed out that the appellant has filed I.A.No.2/2013 under Order 41 Rule 27 of the Code of Civil Procedure to produce the following documents.
1. Copy of the Official Memorandum pertaining to the grant along with the proposal for the grant.
2. Copy of the registered partition deed dated 10.08.1994.
3. Copy of the extract of the tax demand register.
4. Copy of the endorsement dated 04.12.2013 issued by the Taluk Panchayath, Tarikere.
5. Copy of the extract of the distribution register pertaining to the allotment of sites.
9. In the affidavit accompanying the application, it is stated by the appellant-plaintiff that inspite of due diligence and best efforts by the plaintiff, he could not secure the original grant documents and produce at the first appeal stage. It is his submission that he was suffering from serious ailment and has undergone angiogram on 03.05.2012 during the pendency of R.A.No.29/2011. The documents produced are very much necessary for the proper adjudication involved in the lis. Without those documents, the Court could not come to the conclusion with regard to identification of the property and formation of site allotted to the defendant, which is in Sy.No.26 of Galihalli Village, Tarikere Taluk.
10. Having heard the learned counsel for the appellant and on perusal of the material on record, the only substantial question of law which would arise for consideration is;
“Whether the plaintiff/appellant has made out a case for allowing the application I.A.No.2/2013 filed under Order 41 Rule 27 of the Code of Civil Procedure, for production of documents as additional evidence?”
Answered to the above question would be in the ‘affirmative’ for the following reasons.
On framing of the above substantial question of law, learned counsel for the appellant is heard on the above said question. The suit of the plaintiff is for declaration and injunction in respect of site bearing No.706 of Galihalli village, Tarikere Taluk measuring East to West 24 metres and North to South 80 metres. The said property is said to have been granted to the father of the plaintiff on 21.06.1961, to an extent of 1 acre 2 guntas in Sy.No.23 and 18 guntas in Sy.No.22 of Galihalli Village, Tarikere Taluk. The said land was converted to non-agricultural purpose on 14.02.1987. The defendant claims that she has been allotted site No.2, formed in Sy.No.23 measuring 30X40 under ‘Ashraya scheme’. It is also contended that the defendant filed O.S.No.56/1999 for injunction, which was decreed against the plaintiff. The counter claim filed by the plaintiff was also dismissed and the plaintiff filed R.A.No.6/2002 before the appellate Court and R.S.A.No.1951/2005 before this Court. The first appellate Court and this Court confirming the judgment and decree of the trial Court, dismissed the appeals filed by the plaintiff. But, the learned counsel clarifies that in RSA No.1951/2005, this Court granted liberty to the appellant to work out his remedy by filing a comprehensive suit for possession and declaration of title and thus, he filed the present suit.
11. I.A.No.2/2013 is filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 seeking permission to produce document No.1-the Official Memorandum pertaining to grant in favour of the plaintiff in respect of land in Sy.Nos.22 and 23 of Galihalli village, Tarikere Taluk, document No.2-
certified copy of the registered partition deed dated 10.08.1994 to show that under the said partition, the suit schedule property was allotted to the share of the plaintiff and document No.3-copy of the extract of the tax demand register in respect of the suit schedule property and document No.4 sought to be produced is the endorsement dated 04.12.2013 issued by the Taluk Panchayat, Tarikere under Right to Information Act, 2005, intimating the appellant that ‘no information is available with regard to allotment of site in Sy.No.23 in favour of Smt. Lalitha’. The last document the appellant intends to produce is ‘site grant register extract’ in respect of Sy.No.26.
12. In the affidavit accompanying the application, the appellant has stated that the documents now sought to be produced could not be produced at the time of trial due to his ill-health. As the documents were not immediately available, it is stated that the appellant had to search for those documents and had to obtain the certified copies of the same. He obtained the said documents under the Right to Information Act, 2005, which took considerable time in obtaining the said documents.
13. Order 41 Rule 27 of the Code of Civil Procedure, 1908 reads as follows;
“27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 1. Ins. by Act 104 of 1976, s.
87 (w.e.f. 1-2-1977). 196 1 [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
Only if one fulfills the conditions enumerated under Order 41, Rule 27 of CPC, the application for production of additional evidence could be allowed. One has to satisfy the Court before which additional evidence is sought to be produced that he could not inspite of due diligence produce evidence at trial stage and that those additional evidence are very much necessary for proper adjudication of the dispute involved between the parties and to pronounce satisfactory judgment. In the present case, the appellant has now produced the documents to show that there was grant in favour of his father in Sy.Nos.22 and 23 and produced partition deed, wherein, the said land was allotted to the appellant and to suggest that the defendant site falls in Sy.No.26 of Galihalli village, Tarikere Taluk. One of the ground on which the first appellate Court had dismissed the appeal was for placing on record the grant order and partition deed. Therefore, I am of the view that without the documents, the Court could not come to proper conclusion with regard to the dispute and the lis involved in the suit. Therefore, the documents now produced as additional evidence are very much necessary and relevant for proper adjudication of the issues involved in the suit.
14. Hence, I.A.No.2/2013 is allowed. The judgment of the First Appellate Court dated 19.11.2012 in R.A.No.29/2011 is set aside. The appellant is permitted to produce the documents produced along with I.A.No.2/2013. The First Appellate Court shall take such evidence on record or if it feels that the evidence required to be recorded by the trial Court, then, it shall send the same to the trial Court and obtain the report from the trial Court. The admissibility of the documents is left open. After taking the additional evidence on record in accordance with law, the First Appellate Court shall proceed to pass judgment. All the contentions of the parties are left open and liberty is also reserved to the appellant to make proper application for appointment of Court Commissioner for local inspection, if necessary in view of the additional documents produced. The appeal is allowed to the above extent.
Sd/- JUDGE PN/-