Remanded

K a Avalappa v. Sri Bachappa

Karnataka HC27 Aug 2021RSA/1343/2015

Case brief

AI extract

What is this about?

The Karnataka High Court allowed an appeal and remanded the case to the First Appellate Court. The court held that the First Appellate Court erred in ignoring revenue documents attached to a fresh application, possessing a discretion to exercise independent judgment on production of evidence, as supported by Santhosh Hazari.

What did the court decide?

The Regular Second Appeal is allowed; the First Appellate Court's judgment is set aside; the matter is remanded to the First Appellate Court for fresh adjudication.

K a Avalappa Vs Sri Bachappa — Partition | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 27^TH DAY OF AUGUST 2021

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE E.S.INDIRESH

¶6

R.S.A. No.1343/2015

¶7

BETWEEN:

¶8

K A AVALAPPA SINCE DEAD BY HIS LRS

¶9

1a. SMT. JAYAMMA

¶10

W/O LATE AVALAPPA

¶11

AGED ABOUT 58 YEARS

¶12

1b. SMT. R ARUNA

¶13

D/O LATE K A AVALAPPA

¶14

W/O R SIVAPPA

¶15

AGED ABOUT 39 YEARS

¶16

R/AT 15-70, KOTHA, SUBBRARYANI PALLI

¶17

RANGASAMUDRAM, THAMBALAPALLI TALUK CHITTOR DISTRICT ANDHRA PRADESH-517 270.

¶18

1c. K A SUDHAKAR

¶19

S/O LATE K A AVALAPPA

¶20

AGED ABOUT 37 YEARS

¶21

1d. SMT. LAKSHMI R M

¶22

D/O K A AVALAPPA

¶23

AGED ABOUT 34 YEARS

¶24

1(a), (c) AND (d) ARE R/OF KACHAHALLI VILLAGE KASABA HOBLI, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT-562 105.

¶25

K A NARAYANA SWAMY S/O GATLU AVALAPPA AGED ABOUT 60 YEARS R/O KACHAHALLI VILLAGE KASABA HOBLI, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT-562 105.

¶26

... APPELLANTS

¶27

(BY SRI C M NAGHABHUSHAN, ADVOCATE FOR SRI P V CHANDRASHEKAR, ADVOCATE)

¶28

¶29

AND:

¶30

SRI BACHAPPA S/O CHIKA AVALAPPA AGED ABOUT 71 YEARS R/OF KACHAHALLI VILLAGE KASABA HOBLI, SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT-562 105.

¶31

... RESPONDENT

¶32

(BY SRI V MUNI RAJ, ADVOCATE)

¶33

THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 17.04.2015 PASSED IN R.A.NO.92/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIDLAGHATTA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.07.2012 PASSED IN OS.NO.277/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SIDLAGHATTA.

¶34

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

¶35

JUDGMENT

¶36

This appeal is filed by plaintiff No.2 and legal representatives of plaintiff No.1 challenging the judgment and decree dated 17.04.2015 passed in RA.No.92/2012 on the file of the Itinerate Senior Civil Judge and JMFC, Sidlaghatta, dismissing the appeal and confirming the judgment and decree dated 04.07.2012 passed in OS.No.277/2009 on the file of the Principal Civil Judge

¶37

¶38

and JMFC, Sidlaghatta, dismissing the suit of the plaintiffs.

¶39

For the sake of convenience, the parties in

¶40

this appeal shall be referred to in terms of their status and ranking before the trial Court.

¶41

The plaint averments are that the plaintiffs are in possession of the suit schedule property and the said property belonged to their father-Gatlu Avalappa and he died leaving behind the plaintiffs to succeed to his

¶42

estate. It is further stated in the plaint that the originally the suit schedule property belonged to Jodidars of village. It is further averred that old survey number of the suit schedule property was 56/A and thereafter, same was re-numbered as Survey No.9/1. It is also stated in the plaint that the Special Deputy Commissioner, conferred the occupancy rights in respect of suit schedule property in favour of father of plaintiffs in the revenue proceedings in case No.418/1959-60 and therefore, the plaintiffs have succeeded to the estate of

¶43

¶44

their father-Gatlu Avalappa and they are in possession of the suit schedule property. It is further averred in the plaint that name of the father of defendant is Chikka Avalappa and while effecting khata in favour of defendant, a portion of the suit property was also included by the defendant and as such, there is a mistake on the part of the defendant and revenue authorities and as such, being aggrieved by the same, the plaintiffs have filed Regular Appeal No.76/2009-10 before the Assistant Commissioner, Chickballapur and

¶45

same is pending consideration before the Revenue Court. The grievance of the plaintiffs is that the defendant attempted to dispossess plaintiffs from the suit schedule property and as such, the plaintiffs have filed OS No.277/2009 on the file of the trial court.

¶46

After service of summons, defendant entered appearance and filed detailed written statement denying the plaint averments. It is the specific defence in the written statement that the defendant has filed OS

¶47

¶48

No.126/2005 against Nyathappa and Kondappa (Uncle of plaintiffs), for the relief of permanent injunction and said suit came to be decreed in favour of the plaintiff therein, i.e. defendant in the present suit and as such, the defendant has categorically stated in written statement that he is in possession of the suit schedule property and the judgment in OS No.126/2005 is binding on the plaintiffs.

¶49

On the basis of the rival pleadings, the trial Court has formulated following issues for its

¶50

consideration:

¶51

Whether the plaintiffs prove that, the suit schedule property was granted by Government under Inam Abolition Act, in favour of their father and after his death, the plaintiffs are succeeded and they have got title over the suit schedule property ?

¶52

2. Whether the plaintiffs further prove that, they have in lawful possession and enjoyment of the suit schedule property as on the date of the suit?

¶53

3. Whether the plaintiffs further prove that, interference made by defendant as alleged in the plaint ?

¶54

4. Whether the suit is barred by limitation?

¶55

¶56

5. Whether the suit barred under Section 61 of Karnataka Land Revenue Act ?

¶57

6. Whether the plaintiff is entitled for their declaration of title and permanent injunction as sought for ?

¶58

7. What order or decree ?

¶59

In order to establish their case, plaintiff No.2 examined himself as PW1 and examined two more witnesses as PW2 and PW3 and got marked 5 documents as Exs.P1 to P5. On the other hand, defendant examined himself as DW1 and examined another witness as DW2 and produced 8 documents as Exs.D1 to D8.

¶60

The trial Court, after considering the material on record, by its judgment and decree dated 04.07.2012 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs preferred Regular Appeal in RA.No.92/2012 on the file of First Appellate Court. The said appeal was resisted by the defendant. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 17.04.2015, dismissed the appeal and as such, confirmed the

¶61

¶62

judgment and decree passed by the trial Court. Being aggrieved by the judgment and decree passed by the Courts below, the appellants have preferred this Regular Second Appeal under Section 100 of CPC. The appellants have filed IA.I of 2021 under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure seeking permission of this court to produce four documents mentioned in the said application. I have carefully considered the statement made in the affidavit accompanying said application, wherein it is stated that both the courts below have relied upon the fact that the plaintiffs have not produced the revenue documents to prove that the erstwhile Survey No.56/A was renumbered as Survey No.9/1 and that the plaintiffs have discovered the said document recently, which is happens to be basis to resolve the controversy involved in this appeal.

¶63

Sri.C.M.Nagabushan learned counsel for the appellants submits that both the courts below have not

¶64

¶65

properly appreciated the facts on record and dismissed the suit on the ground that plaintiffs have not produced cogent material to prove that jodi inam land measuring 2 acres, 9 guntas in Survey No. 56/A of Kachahalli village, Sidlaghatta Taluk, was re-numbered as Survey No.9/1 measuring 2 acres 9 guntas, which is the basis and essential fact to be considered to resolve the dispute between the parties. He further contended that the finding recorded by both the courts below is on account of due to similarity in the names of father of the defendant and father of plaintiffs i.e. name of father of defendant is Chikka Avalappa and name of father of the plaintiffs is Gatlu Avalappa. Therefore, he contented that the reasons assigned by both the courts below requires to be interfered with in this appeal.

¶66

Per contra, Sri.Muni Raj, learned counsel appearing for the respondent contended that both the courts below have already taken a decision and have come to the conclusion based on evidence that the

¶67

¶68

plaintiffs have not proved the title over the suit property and the same cannot be interfered with in this appeal. He further contended that the extent of land in Survey No.56/A is different from the extent of land in Survey No.9/1. In that view of the matter, the finding recorded by both the courts below is just and proper, which cannot be disturbed in this appeal and accordingly, he sought for dismissal of the appeal.

¶69

Heard the learned counsel appearing for the parties and perused the material on record.

¶70

I have carefully perused the findings recorded by both the courts below and examined the documents produced by the appellants in IA.I of 2021. Having regard to the facts on record, and on consideration of the findings recorded by both the courts below, it is just and necessary to formulate following substantial questions of law in this appeal.

¶71

a) Whether both the courts below are justified in dismissing the suit of the plaintiffs?

¶72

¶73

b) Whether the documents produced by the appellants under Order XLI Rule 27 of Code of Civil Procedure in IA.I of 2021 is to be considered in this appeal ?

¶74

c) What order ?

¶75

On perusal of the finding recorded by the courts below, it is the specific case of the plaintiffs that the suit schedule property is granted in favour of their father-Gatlu Avalappa by the Special Deputy Commissioner in revenue proceedings case No. 418/1959-60 and he was in possession of the property till his death and thereafter, the plaintiffs, being the legal representatives of the Gatlu Avalappa, are in possession

¶76

of the suit schedule property. It is also the case of the plaintiffs that suit schedule properties are Jodi Inam lands, and therefore, the defendant is illegally interfering with their peaceful possession. On the other hand, it is case of the defendant that the plaintiffs have no legal right to claim the land bearing Survey No. 56/A as it belongs to him and with regard to the same, he further

¶77

¶78

stated that he has filed OS No.126/2005 against the uncle of the plaintiffs/Kondappa and sought for relief of permanent injunction which, came to be decreed in his favour and therefore, the defendant has established his right over the suit schedule property. The trial court has formulated as many as 7 Issues for its consideration, however, at paragraph-9 of the judgment and decree, the trial Court has come to a conclusion that plaintiffs have not proved that the earlier Survey No.56/A has been re-numbered as Survey No.9/1 and no material was

¶79

produced by them to arrive at a conclusion that the plaintiffs plea be accepted. Perusal of the finding recorded by the trial Court would establish the fact that essential fact to dismiss the suit on the ground that there is difference in Survey numbers of the suit schedule properties. I have also carefully considered the finding recorded by the First Appellate Court, whereunder, the First Appellate Court at paragraph 11 of its judgment reiterated the findings recorded by the trial Court and arrived at a conclusion that the plaintiffs have not

¶80

¶81

produced any cogent material to establish the fact that Survey No.56/A was renumbered as Survey No.9/1. I have noticed two documents filed along with IA. I of 2021 by the appellants herein before this Court, namely, certified copy of the Tally Certificate issued by the Tahasildar and order dated 3.8.2012 passed in RA No.52/2010-11 by the District Commissioner, Chikkballapur. Though these documents were produced before the First Appellate Court same have not been reappreciated. The First Appellate Court being a last Court on finding of fact, ought to have given a finding with regard to these documents, before passing the impugned judgment and decree. It is settled principle of law that the First Appellate Court has to exercise its discretion as required under Order XLI Rule 31 of Code of Civil Procedure as interpreted by the Hon’ble Apex Court in the case of Santhosh Hazari Vs. Purushottam Tiwari reported in AIR 2001 SCC 965.

¶82

¶83

Having regard to the averments made in affidavit accompanying application-IA.I of 2021 and taking into consideration that these documents have been produced before the First Appellate Court and the same were ignored, and therefore, I am of the considered opinion that the impugned judgment and decree passed by the First Appellate Court suffers from infirmity and same is required to be set aside by remanding the matter to the First Appellate Court for consideration afresh.

¶84

The First Appellate Court is directed consider IA.I of 2021 as well as the documents filed before the said court by the appellants annexed to in IA.I of 2021 herein and pass appropriate orders in accordance with law, after affording an opportunity to both the sides. Accordingly, the substantial questions of law framed above, favors the plaintiff/appellants herein. Hence the following:

¶85

¶86

ORDER

¶87

i. The Regular Second Appeal is hereby allowed;

¶88

ii. Judgment and decree dated 17.04.2015 passed by the Senior Civil Judge and JMFC, Sidlaghatta, in RA No.92/2012, is set aside. The matter is remanded back to the First Appellate Court for fresh adjudication. The First Appellate Court shall consider the case on merits and dispose of the matter at the earliest.

¶89

iii. Since the parties are represented before this Court, in order to avoid further delay in the matter, parties are directed to appear before the First Appellate Court on 23.09.2021, without waiting for any notice in this regard.

¶90

iv. All the contentions of the parties are kept open.

¶91

Sd/JUDGE

¶92

SB

K a Avalappa v. Sri Bachappa

Case brief

What is this about?

What did the court decide?

K a Avalappa v. Sri Bachappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Mani Vs Sri Chandi Shivanna

The President Vs Sri D Sadashivaiah

Sri. Madhu Vs Sri. H.G. Prakash

Sharfunnisa Vs Smt. B S Nagarathnamma

Smt Sarala Vs Smt Vimala Ramachandra

Smt. Gowramma Vs Smt. Nagamma