IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL MISCELLANEOUS SECOND APPEAL NO.70 OF 2014 BETWEEN:
SMT. T. AKKUBAIYAMMA AGED ABOUT 65 YEARS, W/O GOPAL SINGH, R/AT NO. 46/4, CONVENT ROAD, KAMMANAHALLI, ST. THOMAS TOWER POST, BANGALORE – 84.
... APPELLANT (BY SRI G.PAPI REDDY, ADV.,) AND:
1. SRI G. M. GOVINDA REDDY AGED ABOUT 54 YEARS, S/O MUNISWAMY REDDY, NO. 496/A, 15TH CROSS, 1ST MAIN, 4TH STREET, HSR LAYOUT, BANGALORE – 34.
2. SMT. MANORAMMA AGED ABOUT 49 YEARS, W/O G.M. GOVINDASWAMY, NO. 496/A, 15TH CROSS, 1ST MAIN, 4TH STREET, HSR LAYOUT, BANGALORE – 560 034.
3. SRI K. CHANDRA SINGH AGED ABOUT 58 YEARS, C/O KRISHNA SINGH, LAKSHMI NILAYA, NEAR VIVEK NAGAR, ROBERTOSONPET, K.G.F – 563 124.
4. SRI K. PRATAP SINGH AGED ABOUT 56 YEARS, S/O KRISHNA SINGH, D.A.R. HEAD QUARTERS, CHAMIPIONREETFS, K.G.F – 563 124.
5. SRI BALARAM SINGH MAJOR BY AGE, C/O KRISHNA SINGH, INTELLIGENCE, OFFICE NO.2, NRUPATHUNGA ROAD, BANGALORE – 01.
6. SRI K. NATARAJ SINGH AGED ABOUT 50 YEARS, S/O KRISHNA SINGH, THATNAHALLI, MAGONDHI POST, BANGARPET TALUK – 563 114, KOLAR DISTRICT.
7. SMT. PADMA BAI AGED ABOUT 64 YEARS, W/O LAKSHMANA SINGH, THATNAHALLI, MAGONDHI POST, BANGARPET TALUK – 563 114, KOLAR DISTRICT.
8. SRI K.P. VENKATESH AGED ABOUT 48 YEARS, S/O PUTTAPPA, DINNAKOTHUR VILLAGE, S.G. KOTE POST, BANGARPET TALUK – 563 114, KOLAR DISTRICT.
9. SRI VENKATESHAPPA AGED ABOUT 50 YEARS, S/O HANUMAPPA NO. 426, 2ND MAIN, 1ST CROSS, KORAMANGALA, BANGALORE – 34.
10. SMT. K. RUKMINI BAI AGED ABOUT 58 YEARS, D/O KRISHNA SINGH, W/O GOPAL SINGH, NO. 1286, LAKSHMI NILAYA, VIVEK NAGAR, GEETHA ROAD, ROBERTSONPET – 563 124, K.G.F.
11. SMT. K. INDIRA BAI AGED ABOUT 49 YEARS, D/O KRISHNA SINGH, W/O HANUMAN SINGH, DAR QUARTERS, CHAMPION REEFS – 563 124, K.G.F.
12. SMT. K. SARASWATHI BAI AGED ABOUT 47 YEARS, D/O KRISHNA SINGH, W/O VASUDEVA SINGH, 1286, LAKSHMI NILAYA, VIVEK NAGAR, GEETHA ROAD, ROBERTSONPET – 563 122, K.G.F.
13. SMT. K. VASANTHA BAI AGED ABOUT 44 YEARS, D/O KRISHNA SINGH, W/O PRATAP SINGH, NO. 424, GROUND FLOOR, 6TH CROSS, 5TH MAIN, JAGADISH NAGAR, NEW THIPPASANDRA POST, BANGALORE-75.
14. SMT. K. ANUSUYA BAI AGED ABOUT 41 YEARS, D/O KRISHNA SINGH, W/O R. BALAJI SINGH, NO.32/4, 2ND CROSS, RAMESH BUILDING, HAVANOOR EXTENSION, NAGASANDRA, HESARGATTA MAIN ROAD, T. DASARAHALLI POST, BANGALORE – 73. ... RESPONDENTS (BY SRI P.MAHESHA, ADV., FOR R1 & R2; NOTICE TO R3, R4, R6 TO R8, R10 TO R14 ARE SERVED AND UNREPRESENTED;
NOTICE TO R-5 IS HELD SUFFICIENT VIDE ORDER DATED 15.12.2015; NOTICE TO R-9 IS HELD SUFFICIENT VIDE ORDER 28.4.2017) THIS MSA IS FILED UNDER ORDER 41, RULE-25 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.08.2014 PASSED IN R.A.32/2012 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, KGF, ALLOWING THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 31.05.2012 PASSED IN O.S.246/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (JR. DN.) AND JMFC, BANGARPET, REMANDING THE MATTER BACK TO THE TRIAL COURT WITH DIRECTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This miscellaneous second appeal of the plaintiff is directed against the judgment and decree dated 20.08.2014 in R.A.No.32/2012 passed by the Additional Senior Civil Judge and J.M.F.C., K.G.F.
2. By the impugned judgment and decree, the First Appellate Court has set aside the judgment and decree date 31.05.2012 passed by the Principal Civil Judge & J.M.F.C., Bangarapet in O.S.No.246/2008 granting partition and separate possession of plaintiff’s 1/3rd share in the suit property. First Appellate Court remanded the matter to the Trial Court to re-admit the suit, permit the defendants 8 & 9 to amend the written statement to adduce additional evidence etc.
3. The appellant was the plaintiff and respondents 1 to 14 were the defendants before the Trial Court. For the purpose of convenience parties will be referred to hereafter with their ranks before the trial Court.
4. The subject matter of the suit in O.S.No.246/2008 was land bearing Sy.No.40/2, measuring 6 acres 21 guntas situated at Thatnahalli Village, Kasaba Hobli, Bangarpet Taluk.
5. Plaintiff and Neema bai were the daughters of one Tulasiram Singh and Chinnu Baiamma. Defendants 1 to 4 are the children of Neema Bai. Neema Bai died on 10.04.2003, Neema Bai and defendants 1 to 4 sold the suit schedule property on 27.10.1997 to defendant No.5 Padma bai. Defendant No.5 in turn sold the said property under a registered sale deed dated 18.10.2000 in favour of defendant No.6.
6. Defendant No.6 in turn sold the said property to defendant No.7 under registered sale deed dated 19.02.2003. Defendant No.7 in turn sold the said property to defendants 8 & 9 under registered sale deed dated 14.07.2006. Exs.D.1 to D.4 are the said sale deeds.
7. Plaintiff filed the suit contending that on demise of Tulasiram Singh and Chinnu baiamma, herself and Neema bai got ½ share by inheritance, defendants 1 to 4 have effected alienations in favour of defendants 5 to 8 without her knowledge and her consent and without legal necessities, therefore the said sales do not bind her. Thus, she claimed her share.
8. Defendants 1 to 4 who were parties to the sale deeds, though appeared did not contest the suit. As against that defendant No.2 filed memo conceding the claim of the plaintiff. Defendants 5 to 7 did not appear to contest the suit. Defendants 8 and 9 alone filed written statement and contested the suit.
9. They denied the claim of the plaintiff, that suit schedule property was her ancestral joint family property. They put her to strict proof of her relationship with the owner of the property. They also denied her right or joint possession. They contended that the suit is the out come of collusion between plaintiff and defendants 1 to 4.
10. They contended that said Chinnu baiamma was the absolute owner of the suit schedule property. During her life time she gifted the said property in favour of Neema bai under a registered Gift deed dated 12.10.1987, thereafter the property was transferred by defendants 1 to 4 and Neema bai in favour of defendant No.5 on 27.10.1997. They contended that thereafter there were three lines of transfer under sale deeds dated 18.10.2000, 19.02.2003, 14.07.2006 and they are the ultimate purchaser in the last line and they are in exclusive possession and enjoyment of the suit property.
11. On the basis of such pleadings, the trial Court framed the following issues:
i) Whether the plaintiff proves that the suit Schedule property is the ancestral and joint family property of the plaintiff and the defendant Nos.1 to 4?
ii) Whether the plaintiff proves that she has got ½ share in the suit schedule property?
iii) Whether the defendants prove that suit is barred by law of limitation?
iv) Whether the defendants No.8 and 9 prove that they are the bona fide purchasers of the suit schedule property?
v) Whether the plaintiff is entitled for the relief claimed in the suit?
vi) What decree or order?
12. The parties adduced their evidence. The plaintiff got examined herself as P.W.1 and got marked Exs.P.1 to P.10. Defendant No.8-G.M.Govinda Reddy was examined as D.W.1 and got marked Exs.D.1 to D.4 13. The trial Court after hearing the parties, decreed the suit granting 1/3rd share plus half share in 1/3rd share of her mother Chinnu Baiamma holding that the property belongs to Thulasi Ram Singh and therefore, his wife Chinnu Baiamma had no absolute right to convey the same under the gift deed to Neema Bai. It was held that in turn Neema Bai and defendant Nos.1 to 4 had no right to transfer the property as the plaintiff a daughter of Thulasi Ram Singh also had 1/3rd share in the suit property and on the death of Chinnu Baiamma, she had further half share in Chinnu Baiamma’s 1/3rd share. The trial Court held that plaintiff was in joint possession of the suit property and negatived the contention of defendant Nos.8 and 9 that the suit is barred by time.
14. Defendant Nos.8 and 9 challenged the said judgment and decree before the Addl. Senior Civil Judge and JMFC, KGF, in RA.No.32/2012. On service of notice of appeal, the plaintiff / the 1st respondent contested the appeal.
15. Defendant Nos.8 and 9 filed I.A.Nos.2 and 3 before the First Appellate Court under Order VI Rule 17 r/w Section 151 of CPC and under Order XLI Rule 27(1)(aa) r/w Section 151 of CPC seeking amendment of their written statement and for adducing additional evidence.
16. By the proposed amendment, defendant Nos.8 and 9 contended that Thulasi Ram Singh had mortgaged the suit property in favour of one Eshwar Rao who sold the property to one Ram Singh and Chinnu Baiamma purchased the property from Ram Singh under the registered sale deed dated 17.08.1964, therefore, she was the absolute owner of the property and she in turn gifted the property in favour of her elder daughter Neema Bai.
17. Under I.A.No.3, they sought to produce the certified copy of the registered sale deed dated 17.08.1964 executed in favour of Chinnu Baiamma and gift deed dated 12.10.1987 executed by Chinnu Baiamma in favour of Neema Bai and the certified copies of the subsequent sale deeds, RTC, Tax Paid Receipts standing in the name of defendant Nos.8 and 9.
18. The First Appellate Court by the impugned judgment and decree has considered I.A.Nos.2 and 3 separately and allowed them. The First Appellate Court further held that in view of allowing I.A.Nos.2 and 3, the matter requires to be reconsidered by the trial Court. Thus, remanded the matter to the trial Court with a direction to readmit the suit, afford opportunity to defendant Nos.8 and 9 to amend their written statement and permit the parties to lead additional evidence on contentious issues and dispose of the matter afresh.
19. Sri G.Papi Reddy, learned counsel for the appellant seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds:
i) Appeal under Section 96 of CPC is virtually continuation of the suit and the First Appellate Court is required to consider the entire material afresh and arrive at a conclusion;
ii) The applications for amendment of the pleadings and production of additional evidence required to be heard and decided along with the main matter, but the First Appellate Court bifurcated both of them, which is unsustainable;
(iii) The First Appellate Court did not consider the evidence adduced before the trial Court and judgment and decree passed by the trial Court.
20. In support of his contention, he seeks to rely on the following judgments:
(i) Shanthaveerappa Vs. K.N.Janardhanachar -
ILR 2007 KAR 1127 (ii) The Deputy Commissioner, Raichur and Another Vs. Channaveerayya and Another – 2013 (2) Kar.L.J 734 21. Per contra, Sri P.Mahesha, learned counsel for respondent Nos.1 and 2 seeks to support the impugned judgment and decree on the following grounds:
(i) The First Appellate Court has considered I.A.Nos.2 and 3 and the merits of the case on the same day, though separate orders were passed and therefore, the judgment in the Deputy Commissioner, Raichur and Another Vs. Channaveerayya and Another is not applicable;
(ii) There were series of transfers from 1987 to 2006 under the registered documents and the plaintiff did not challenge the same which shows acquiescence;
(iii) That defendant Nos.1 to 4 who are the parties to documents executed in favour of defendant Nos.5 to 9 did not choose to contest the suit. Per contra, defendant No.2 conceded plaintiff’s claim. That itself shows collusion between the plaintiff and defendant Nos.1 to 4;
(iv) Pursuant to the registered gift deed and sale deeds the names of subsequent transferees were mutated in the revenue records and that was not questioned;
(v) Defendant Nos.8 and 9 being the last line purchasers were not aware of the transaction, which took place in the year 1964 or prior thereto. Only on decree of the suit, they conducted thorough enquiry and came to know about the transaction that took place in 1964 and prior thereto;
(vi) The First Appellate Court found that to serve the ends of justice allowing the applications for amendment and additional evidence is essential and allowed accordingly;
(vii) Even assuming that there is procedural irregularity and considering the appeal and I.As separately that has not caused any injustice to the plaintiff;
(viii) If at all the judgment and decree of the First Appellate Court is required to be set aside, on such ground, suitable direction may be issued to the First Appellate Court to avoid delay.
22. Perusal of the order sheet of the First Appellate Court and the impugned judgment and orders passed on I.A.Nos.2 and 3 shows that the applications were not listed for hearing along with the appeal. Though it is not the case of the parties that they were not heard on the application, the First Appellate Court passed two separate orders. Firstly allowing I.A.Nos.2 and 3 and secondly allowing the appeal and remanding the matter to the trial Court.
23. In Channaveerayya’s case, it was held that application for additional evidence has to be considered along with the main appeal. It is the settled principle of law that even the amendment application has to be considered along with the appeal.
24. Adducing additional evidence or seeking amedment of pleadings at appellate stage is not a matter of right. To allow that the First Appellate Court, on hearing the parties on merits should find that the proposed amendment and additional evidence is necessary for complete adjudication of the matter and the rights of the parties, such amendment or production of documents could not be sought despite due diligence of the parties etc.
25. This Court in Shanthaveerappa’s case while considering the powers and duties of the First Appellate Court in hearing and disposing of the appeal under Section 96 of CPC, has held as follows:
“11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to re-appreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arising in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appellate Court itself. When the trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case. It should see first whether it can dispose of the case itself under Order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is tendered in appeal, the Court should act under Rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh opportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. A remand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice”.
(emphasis supplied) 26. In the light of the above judgment and Section 107 CPC, it is clear that in the first appeal, the Appellate Court has to first appreciate the pleadings and evidence of the parties adduced before the trial Court, finding of the trial Court in the judgment and only on disagreeing with such findings may resort to receive additional evidence, permit the amendment of pleadings, frame any issue or resettle the issues etc. After such exercise, if First Appellate Court finds it necessary to remand the matter shall resort to such order.
27. In this case, apparently the First Appellate Court without appreciating the pleadings and evidence of the parties placed before the trial Court and considering the merits of the judgment of the trial Court simply states that it allowed I.A.Nos.2 and 3 by separate order and therefore, remand is necessary and remands the matter. Thus, the order does not stand the test of Sections 96 and 107 of CPC and is not in conformity with the ratio laid down in Shanthaveerappa’s as well as Channaveerayya’s case referred to supra.
28. Therefore, the matter requires to be remanded to the First Appellate Court to hear the appeal and the applications in the light of the above said observations. To avoid delay, the First Appellate Court on hearing the parties on the appeal and on I.As, if finds it just and proper, may allow the applications and direct the trial Court to receive the re-joinder of the plaintiff on such amended pleadings, frame additional issue, record evidence if it is necessary and resubmit the records to the First Appellate Court. Then First Appellate Court shall dispose of the appeal afresh.
29. Therefore, the appeal is allowed. The impugned judgment and decree dated 20.8.2014 in RA.No.32/2012 passed by the Addl. Senior Civil Judge and JMFC, KGF, is hereby set aside. The matter is remanded to the First Appellate Court for fresh disposal in the light of the observations made above.
No order as to costs.
Sd/- JUDGE HR/PB