Appeal allowed. First Appellate Court remitted to High Court due to failure to reappreciate evidence, disregard of admissions, and lack of reasoned judgment on applicant's cross examination and Commissioner report.
Appeal allowed. Judgment and decree of First Appellate Court set aside. Matter remitted to First Appellate Court to dispose of appeal in accordance with law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 RSA No.125/2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF SEPTEMBER, 2013 BEFORE
THE HON’BLE MR. JUSTICE A.S. PACHHAPURE
REGULAR SECOND APPEAL No.125 OF 2010
BETWEEN:
SINCE DEAD
APPELLANT NOs.2 TO 9 ARE TREATED AS L.Rs. OF APPELLANT NO.1
SINCE APPELLANT NOS.3 & 4 ARE MINORS, REP. BY THEIR MOTHER AS NATURAL GUARDIAN VIJAYALAKSHMI, APPELLANT NO.2
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... APPELLANTS
(BY SRI: H R ANANTHAKRISHNA MURTHY, ADV)
AND:
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RESPONDENT NOs.3 TO 6 ARE CHILDREN OF LATE P SRINIVAS AND ALL ARE R/O MELINAPETE CAR STREET, HOSAKOTE TOWN BANGALORE RURAL DISTRICT-562 114.
... RESPONDENTS
(BY SRI: P M SIDDAMALLAPPA FOR C/R APPEAL AGAINST R1 DISMISSED V.C.O. DT 21.06.2011)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 20.10.2009 PASSED IN R.A.NO.183/2007 ON THE FILE THE PRL. DISTRICT & SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 22.10.2007 PASSED IN O.S.NO.268/1994 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), BANGALORE RURAL DISTRICT, BANGALORE.
THIS RSA COMING ON FOR HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
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The unsuccessful plaintiffs in the Courts
below have filed this appeal challenging the dismissal of their suit instituted seeking declaration and possession and also their appeal, by the First Appellate Court.
this appeal are as under:
Parties will be referred as per their rank before the Trial Court for the sake of
convenience.
The appellants are the LRs of deceased
plaintiff whereas respondents were the defendants in the Trial Court. The suit property measures 20 guntas out of land bearing Sy.No.122 of Hoskote Kasaba described in the schedule to the plaint. It was purchased by H M Sreeram, the deceased plaintiff from Smt.Ammaiamma and her son Srinivas who are the defendants through a registered sale
5 RSA No.125/2010
deed dated 03.06.1976. The plaintiff had misplaced the original sale deed and it is his case that the entries in the record of rights was changed and he has been in possession of the suit property since from the date of sale transaction. He is said to have been forcibly dispossessed from the year 1992 and the plaintiffs have not executed any sale deed in favour of the defendants. He contended that if there is any sale deed in their favour, it is a forged document and it does not bear his signature and that he has not executed any sale deed. It is his submission that the defendants are claiming title to the suit property on the basis of sale deed dated 22.08.1992 which is not genuine and therefore, instituted a suit for declaration of his title to the suit property and also the possession.
The defendants appeared before the Trial Court and filed their written statement denying the allegations made and it is their specific
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contention that the suit survey number is absolute property of the defendants. The defendants acquired the suit property under the registered sale deed dated 01.05.1957 by Perumalappa, the husband of Ammaiamma and on the death of Perumalappa, they have succeeded to the suit property. It is their specific contention that the sale deed dated 03.06.1976 on the basis of which plaintiff claims the title is a nominal sale deed and the defendants had raised a loan of Rs.1,000/- and to discharge the same, this nominal sale deed was executed. The defendants also contended that they have been in possession of suit property despite the nominal sale transaction and as the deceased plaintiff did not execute the sale deed, there was a panchayath and the deceased plaintiff agreed to execute the sale deed for consideration of Rs.66,000/-. So they contend that there was a sale deed for a consideration of Rs.66,000/- and the plaintiff executed the sale
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deed in this regard on 22.08.1992. They also contend that the sale deed is a genuine and valid document. They also contended that the sale deed dated 22.08.1992 was taken away by the plaintiff without their knowledge and the plaintiff had suppressed the material facts. On the basis of this contention, the defendants sought for dismissal of the suit. The defendants have also filed additional written statement and have taken elaborate defence in the said additional written statement.
On the basis of these pleadings, the Trial Court framed as many as 8 issues. During the trial, PWs.1 and 2 were examined and Exs.P1 to P10 were marked. The defendants examined DWs.1 to 4 and Exs.D1 to D24 were marked. The Commissioner was appointed during the pendency of suit and he has been examined as CW1 and the documents Exs.C1 to C4 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the
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evidence on record, held that the sale deed dated 03.06.1976 is a nominal document and therefore, dismissed the suit of the appellant. Aggrieved by the judgment and decree, the plaintiff preferred RA No.183/2007 whereas the defendants filed cross appeal No.24/2008 and the First Appellate Court after hearing the counsel has dismissed the appeal filed by the appellants, whereas allowed the cross appeal of respondents and declared that the defendants are the owners of suit property. Aggrieved by the judgment and decree of the First Appellate Court, the present appeal is filed.
“Whether the Courts below were in error in dismissing the suit of the plaintiff when the plea of sale deed in favour of the plaintiff being nominal was not established and defendants also give up the plea of
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adverse possession and Courts below could have relied upon unregistered sale deed Ex.D24?”
On 16.9.2013 the following substantial
questions of law have been raised.
both the parties.
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plaintiff had acquired title to the suit property under the registered sale deed wherein there is a recital that the possession of the suit property was handed over to the deceased plaintiff and in pursuance of the sale deed the name of the deceased plaintiff was entered in the records. Therefore, he submits that both the Courts below did not appreciate the evidence properly and committed an error in dismissing the suit of the appellants. It is also his submission that the First Appellate Court being the last court to reappreciate the facts and the evidence, has not followed the proper procedure in referring to the evidence led by the parties appreciating the same committed an illegality in affirming the judgment of the trial Court without appreciation of the evidence which has been brought on record. He further submits that the defendants never sought for a relief by way of a counter claim and granting a relief in favour of the defendants by
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the First Appellate Court in the absence of any counter claim is improper.
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there is a specific contention that the First Appellate Court has not followed the proper procedure in disposing of the appeal and that the First Appellate Court has not applied its mind to the facts and the evidence led.
consideration the fact that though a sale deed came to be executed by the defendant and his mother, the original sale deed was with the defendant and the plaintiff was not in custody of the said sale deed and therefore observed that this is a strong circumstance to infer that the sale deed is a nominal document. Thereafter it has also taken into consideration the admission of the plaintiff in relation to the sale transaction being by way of security for a sum of Rs.1,000/-, so also it has taken into consideration that the
defendant was in possession of the suit property and it has also referred to the Commissioners report. But at the same time if the judgment of
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the First Appellate Court is seen, page Nos.1 to 13 contain the facts relating to the pleadings of the parties and the issues raised. It has raised three points for consideration. While referring to the documents in para 13 it has looked into Exs.D4 to D14 the record of rights and concluded that the defendants continued to be in possession of the suit property despite the sale deed dated 3.6.1976. In para 14 which runs to half a page, it
has referred to the pleadings in regard to the dispossession and its value, the version of the plaintiff with regard to the dispossession in the year 1992. Though a contention was raised by the appellants to invoke the provisions of Sections 91 and 92 of the Indian Evidence Act, it made just a remark that the above findings do not need any consideration or discussion on Sections 91 and 92. In fact it has not referred to the said provisions and did not assign reasons as to how the findings arrived at are contrary to Sections 91 or 92 of
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the Evidence Act. Nowhere it states as to the requirement of Sections 91 and 92 and how the said provisions are not applicable and without assigning any reasons it said that the said contentions needs no discussion. That apart there were many admissions by the plaintiff in the cross examination and none of these admissions have been referred to by the First Appellate Court. Further more, a Commissioner was appointed to examine the thumb impressions on the sale deed Ex.P2 and the First Appellate Court has not referred to the evidence of the Commissioner, the report submitted, the judgment of the First Appellate Court is cryptic. There is no application of mind, no discussion of all that evidence which has led by the parties or atleast its relevant part.
claim by the defendants it has allowed the Cross Appeal No.24/2008 without assigning any reasons in
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the judgment rendered by the First Appellate Court.
that the First Appellate Court is the final Court wherein the evidence is re-appreciated and a finding is arrived at. It is necessary for the First Appellate Court to reconsider the pleadings, evidence led by the parties referred to in the rival contentions and then give its conclusions. In the absence of re-appreciation of the important evidence and the provisions of law would clearly indicate non-application of mind. Therefore for this reason, I am of the opinion that it is necessary to remit the matter to the First Appellate Court with a direction to consider all the material placed before it by the parties and to dispose of the appeal in accordance with law, uninfluenced by any of the observation made by this Court.
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placed reliance on the decision of the Supreme Court in AIR 1979 SC 1708 in the case of JASPAL SINGH Vs.
STATE OF PUNJAB with reference to the experts evidence relating to thumb impression. He also referred to the judgment of this Court reported in 2012 (4) KCCR 3581 in the case of HOTTAIAH AND OTHERS Vs. KYASAPURADA ERANNA, wherein this Court referred to evidentiary value of the Commissioner’s report. None of these aspects have been considered by the First Appellate Court. So, it is for the First Appellate Court to consider the principles laid down, appreciate the evidence adduced by the parties and then dispose of the appeal and the cross appeal in accordance with law. Consequently, the second additional substantial question of law is answered in affirmative. The other additional substantial question of law is kept open for consideration by the First Appellate Court. The main substantial question of law does not arise
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for consideration. All the contention are kept
open for consideration by the Court below.
In the result, the appeal is allowed. The judgment and decree of the First Appellate Court in RA Nos.183/2007 and Cross Appeal No.24/2008 are set aside. The matter is remitted back to the First Appellate Court to dispose of the appeal in accordance with law.
As the matter is of the year 2007, the parties are directed to appear before the First Appellate Court on 21.10.2013 without waiting for the notice. After appearance of the counsel, the Court shall dispose of the same preferably within
a period of six months from the date of communication of this order.
Sd/JUDGE
*bgn/- & *AP/-
3 issues framed by the court
Whether the First Appellate Court is justified in declaring defendants as owners absent a counter claim by defendants?
Whether the First Appellate Court committed an error in giving findings without re-appreciating evidence and assigning reasons?
Whether the First Appellate Court failed to apply principles regarding Commissioner report and thumb impression evidence?
Colour shows how this judgement treated each authority
JASPAL SINGH Vs. STATE OF PUNJABReferred¶102
AIR 1979 SC 1708 · Who else cites this
HOTTAIAH AND OTHERS Vs. KYASAPURADA ERANNAReferred¶103
2012 (4) KCCR 3581
1 provisions across 1 enactments
Narayamma W/o Late Sreeram
Vijayalakshmi W/o Late Rajendra
Ammayamma W/o Peruamlappa
Sushila W/o Late P Srinivas
A.S. Pachhapure
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A.S. Pachhapure
Parties & counsel
