IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.96/2017 BETWEEN:
SRI N.RAMACHANDRA S/O LATE PATTADI NAGAPPA AGED 59 YEARS R/AT NAGAWARA VILLAGE KASABA HOBLI BENGALURU NORTH TALUK BENGALURU – 560 045 … APPELLANT (BY SRI R.S.HEGDE, ADV.) AND:
1. SMT.V.PARVATHAMMA W/O SRI N.VENUGOPAL D/O PATEL VENKATARAMANA GOWDA AGED 64 YEARS R/O VAKKALERI VILLAGE & HOBLI KOLAR TALUK, KOLAR DISTRICT C/O NO.676, 11TH ‘A’ MAIN YELAHANKA NEW TOWN BENGALURU – 560 064 2. SRI D.N.ANIL KUMAR S/O D.V.NARAYANASWAMY AGED 45 YEARS 3. SRI D.N.PRAKASH S/O D.V.NARAYANASWAMY AGED 47 YEARS APPELLANT NOS.2 AND 3 R/AT NO.676, 11TH ‘A’ MAIN YELAHANKA NEW TOWN BENGALURU – 560 064 ….RESPONDENTS (BY SRI ANANDA H.C., ADV. FOR SRI M.THIMMARAYA, ADV. FOR R1 & R3; SRI P.SRINIVASAIAH, ADV. FOR R2) THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.06.2017 PASSED IN RA NO.15002/2017 ON THE FILE OF THE VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.09.2014 PASSED IN O.S.NO.290/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC., DEVANAHALLI, REMITTING BACK THE MATTER TO THE TRIAL COURT FOR FRESH DISPOSAL IN ACCORDANCE WITH LAW.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiff arises out of the judgment and decree dated 21.6.2017 passed by the V Additional District and Sessions Judge, Devanahalli, in R.A.No.15002/2017. By the impugned judgment and decree, the first appellate court allowed the appeal, set aside the judgment and decree dated 27.9.2014 passed by the Additional Civil Judge and JMFC., Devanahalli, in O.S.No.290/2006. By the said judgment and decree, the trial court had decreed the suit of the plaintiff for declaration of his title and for permanent injunction.
2. Appellant was the plaintiff and respondent Nos.1 to 3 were defendant Nos.1 to 3 before the trial court. For the purpose of convenience, they will be referred to henceforth with their ranks before the trial court.
3. The subject matter of the suit were agricultural lands in Sy.No.6/4 measuring 1 acre 20 guntas and 5 guntas situated in Bullahalli village, Vijayapura Hobli, Devanahalli Taluk.
4. Plaintiff’s case was that, he purchased the said lands under Exs.P1 and P2 the registered sale deeds dated 25.4.2005 and 14.2.2006 from one D.V.Krishnappa. He further contended that D.V.Krishnappa had purchased in all 8 acres 32 guntas in Sy.No.6/4 under Exs.D2 to D4 the registered sale deeds dated 20.4.1970, 14.9.1970 and 24.5.1973 in three different bits and he was the absolute owner of the said properties. Plaintiff contended that D.V.Krishnappa sold the property to him and put him in possession, but defendants claiming right over the property started obstructing his peaceful possession and enjoyment. Initially suit was filed for bare injunction. Later by an amendment to the plaint, plaintiff claimed the relief of declaration of title also.
5. Defendant Nos.2 and 3 are the sons of one D.V.Narayanaswamy. Plaintiff’s vendor D.V.Krishnappa, D.V.Narayanaswamy and D.V.Doddegowda were the brothers. Defendants contended that D.V.Krishnappa, D.V.Narayanaswamy and D.V.Doddegowda constituted joint family and as D.V.Narayanaswamy was in Government service, the land bearing Sy.No.6/4 was purchased in the name of D.V.Krishnappa out of the joint family nucleus. They further contended that on 24.5.1977 in a partition between D.V.Krishnappa, D.V.Narayanaswamy and D.V.Doddegowda under Ex.D6 Panchayath Parikath, the land bearing Sy.No.6/4 was allotted to the share of Narayanaswamy and in turn, in a partition between defendant Nos.1, 2 and Narayanaswamy under registered partition deed Ex.D10, 4 acres 16 guntas was allotted to the second defendant and 2 acres 16 guntas of agricultural land was allotted to defendant No.3. It was further contended that in turn they have sold the property to defendant No.1 on 27.11.2003 under the registered sale deeds Exs.D16 and D17. They contended that D.V.Krishnappa suppressing the said fact has again sold the property to the plaintiff and he had no title to sell the property to the plaintiff.
6. After amendment of the plaint to claim declaration of title, defendants filed counter claim seeking declaration that the sale deeds set up by the plaintiff are null and void. They contended that since the date of sale in his favour, defendant No.1 was in possession and enjoyment of the property and they denied the other contentions.
7. On the basis of said pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that, he is the absolute owner of suit properties?
2. Whether the plaintiff further proves that he is in lawful possession and enjoyment of suit properties as on the date of suit?
3. Whether the defendants prove that the sale deeds dated 24/4/2005 and 24/2/2006 are null and void and liable to be cancelled?
4. Whether the plaintiff proves the alleged interference by the defendants?
5. What reliefs the parties are entitle for?
6. What order/decree?
8. The parties adduced evidence. The trial court after hearing the parties, by the judgment and decree dated 27.9.2014 decreed the suit holding that Ex.D6 the Panchayath Parikath set up by the defendants is an unregistered document, hence, that cannot be looked into. The trial court further held that the said partition was not proved by examining the attestors or the parties to the document, D.V.Krishnappa by virtue of said sale deed Ex.D2 had the title to the property and he has passed on the title to the plaintiff.
9. Aggrieved by the said judgment and decree, the defendants filed R.A.No.15002/2017 before the V Additional District and Sessions Judge, Devanahalli. The first appellate court on hearing the parties formulated the following points for its consideration:
1. Whether plaintiff proves description of the suit schedule properties in a proper manner?
2. Whether suit is hit by non-joinder of necessary parties?
3. Whether impugned judgment and decree passed by the trial court requires interference?
4. Whether it is fit case for remand?
5. What Order?
10. The first appellate court by the impugned judgment and decree allowed the appeal and remanded the matter as aforesaid on the following grounds:
i) The defendants contended that Sy.No.6/4 was the ancestral joint family property. Therefore, the other members of the family of Krishnappa and Narayanaswamy were the necessary parties;
ii) The documents produced by the plaintiff did not establish the identity of the property;
iii) The records produced by the parties show that Krishnappa mortgaged part of the property to PLD Bank. That fact was not considered by the trial court;
iv) The trial court’s finding that defendants failed to establish the counter claim is erroneous.
v) The issues in the case have to be adjudicated by impleading the vendor of the plaintiff and his family members and on receiving survey report and survey map from the competent survey authority.
11. Sri.R.S.Hegde, learned Counsel for the appellant seeks to challenge the impugned order on the following grounds:
i) The first appellate court did not re-appreciate the pleadings and evidence of the parties, did not meet the findings recorded by the trial court;
ii) Even though there was no issue regarding non-joinder of the necessary parties before the trial court, the first appellate court states that Krishnappa and his family members are necessary parties, which is unsustainable.
12. In support of his contentions, he relies on the following judgments:
1. Municipal Corporation, Hyderabad –vs- Sunder Singh AIR 2008 SC 2579;
2. Smt.Uma and Another –vs- Sri.N.V.Rajachari, since dead by LRs. ILR 2010 Kar 3078.
13. Per contra, Sri.P.Srinivasaiah, learned Counsel for respondent/defendant No.2 submits that the plaintiff/appellant was expected to prove the title of his vendor to show that he had a saleable interest in the property. He further submits that the evidence on record sufficiently showed that since 1977, D.V.Krishnappa had not enjoyed any domain over the property. He further submits that Ex.D6 could be relied at least for collateral purpose to consider that there was a partition.
14. Having regard to the above rival contentions, the question that arises for consideration is:
“Whether the order of remand passed by the first appellate court is sustainable in law?”
15. As per Section 107 and Order XLI Rule 31 C.P.C., first appellate court virtually has all powers of trial court. It has to re-appreciate pleadings, evidence presented by the parties and consider the merits of the findings recorded by trial court.
16. Perusal of the judgment of the first appellate court clearly shows that the first appellate court did not re-appreciate the pleadings and evidence presented by the parties before the trial court. The first appellate court did not even discuss the findings of the trial court on each issue and meet them. The whole issue in the case was whether the plaintiff has the title over the property. He based his title on the sale deed executed by D.V.Krishnappa in his favour under Exs.P1 and P2.
17. The contention of the defendants was that, Krishnappa had no saleable interest as the said property was purchased in the name of Krishnappa out of the joint family nucleus and later in a partition that property was allotted to the share of Narayanaswamy. The parties were not at all at dispute regarding relationship between Narayanaswamy, Krishnappa and their brother Doddegowda.
18. Under such circumstances, the plaintiff was expected to prove that Krishnappa had right, title and interest in the property when he sold the same to the plaintiff. Whereas the defendants were expected to prove that the land in Sy.No.6/4 was purchased out of joint family funds in the name of Krishnappa and that was a joint family property and in the partition, the property was allotted to the share of Narayanaswamy.
appellate court did not re-appreciate the evidence adduced by the parties. Instead of that, the first appellate court misdirected itself in saying that defendants contended that suit property is joint family property, therefore, the other members of the family of D.V.Krishnappa, the vendor of the plaintiff were necessary parties and they shall be impleaded in the suit and then there shall be a re-trial. Such view of the first appellate court was nothing but unwarranted expansion of scope of litigation.
20. This Court in Shanthaveerappa vs.
K.N.Janardhanachari ILR 2007 KAR 1127 held that the power to remand is conferred on the First Appellate Court under Order 41 Rule 23 of CPC even in cases other than the one decided on preliminary issue. In the very same judgment, it is also held that even in such cases, Appellate Court having regard to Section 107 of CPC has to first re-appreciate pleadings, evidence presented by the parties and the findings recorded by the trial Court and only on the First Appellate Court disagreeing with the findings of the trial Court, if found necessary it should resort to remand.
21. The Hon’ble Supreme Court in Municipal Corporation, Hyderabad’s case referred to supra, at paragraphs 19 & 20 held as follows:
“19. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI, Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI, Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
20. Order XLI, Rule 23A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a re- trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI, Rule 23 of the Code.
An order of remand cannot be passed on ipse dixit of the court. The provisions of Order II, Rule 2, of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. (Civil Appeal No.3495 of 2008) disposed of on 12-5-2008.”
22. Section 107 of the Code of Civil Procedure also casts duty on the first appellate court to determine the case finally on re-appreciating the evidence. As held in Shanthaveerappa’s case referred to supra, only after re-appreciation of the pleadings, evidence and the findings of the trial court, if the first appellate court disagrees with the findings of the trial court, then it has to apply its own reasons, thereafter if it finds that reception of any additional evidence is required, an additional issue has to be framed or any party has to be impleaded, the court has to record that and then resort for remand.
23. But in this case, the first appellate court has not done any of that exercise, it has totally on untenable grounds remanded the matter. Therefore, the appeal is allowed.
24. The impugned judgment and decree dated 21.6.2017 passed by the V Additional District and Sessions Judge, Devanahalli, in R.A.No.15002/2017 is hereby set aside.
The matter is remanded to the first appellate court for re-consideration of the matter in the light of the observations made above.
To avoid further delay, parties are directed to appear before the first appellate court on 27.3.2019 without any further notice.
The first appellate court shall dispose of the appeal as expeditiously as possible.
Registry shall transmit the records to the first appellate court forthwith.
Sd/- JUDGE KNM/-