Allowed

Smt.Rathnamma v. Smt.Kempamma

Karnataka HC5 Dec 2023MSA/33/2022

Case brief

AI extract

What is this about?

The High Court allowed appeals against an appellate order that remitted a property dispute for a fresh trial. The Court held that since additional evidence was admitted on appeal, the appellate court must have decided the case on merits instead of remanding it, citing a coordinate bench.

What did the court decide?

Appellate Court directed to mark the two sale deeds dated 16.12.1998 and dispose of the appeals on merits within six months.

Smt.Rathnamma Vs Smt.Kempamma — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:43944 MSA No. 33 of 2022 C/W MSA No. 7 of 2021 MSA No. 26 of 2021 MSA No. 34 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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MISCELLANEOUS SECOND APPEAL NO. 33 OF 2022 C/W MISCELLANEOUS SECOND APPEAL NO. 7 OF 2021, MISCELLANEOUS SECOND APPEAL NO. 26 OF 2021, MISCELLANEOUS SECOND APPEAL NO. 34 OF 2022

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IN MSA NO.33/2022

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BETWEEN:

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SMT. RATHNAMMA, S/O. M. SIDDAPPA, AGED ABOUT 50 YEARS, R/AT CHINNANAYAKANAPALYA, NAGASANDRA POST-560 073, BANGALORE NORTH TALUK.

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…APPELLANT

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(BY SRI. VINOD PRASAD, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. KEMPAMMA, W/O. LATE BYRAPPA, AGED ABOUT 85 YEARS, (SINCE DECEASED REPRESENTED BY HER DAUGHTER CHIKKACHENNAMMA R5 HEREIN WHO IS ALREADY ON RECORD)

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SRI. JAYARAMAIAH, S/O SRI. CHANNAPPA, AGED ABOUT 43 YEARS

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SRI. NAGESH, S/O SRI. CHANNAPPA, AGED ABOUT 40 YEARS, RESPONDENTS 1 TO 3 ARE ALL RESIDENTS OF

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LAKKENAHALLI VILLAGE, DASANAPURA HOBLI-562 162, BANGALORE NORTH TALUK.

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SRI. CHANNAPPA, S/O. LATE BYRAPPA, AGED ABOUT 65 YEARS, R/AT MANTHANAKURCHI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK-562 123, BANGALORE RURAL DISTRICT.

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SRI. CHIKKACHENNAMMA, D/O. LATE BYRAPPA, AGED ABOUT 70 YEARS, KENGANAHALLI VILLAGE, SHIVANAPURA POST, DASANAPURA HOBLI-562 162, BENGALURU NORTH TALUK.

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…RESPONDENTS

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(RESPONDENT NO.1 DEAD REPRESENTED BY RESPONDENT NO.5; BY SRI. H.P.LEELADHAR, ADVOCATE FOR RESPONDENT NOS.2 AND R3;

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NOTICE SERVED ON RESPONDENT NOS.4 AND 5)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED IN R.A.NO.162/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT SET ASIDE THE JUDGMENT AND DECREE DATED 07.10.2015 PASSED IN O.S.NO.50/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA DECREEING THE SUIT AND REMANDED BACK THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 7 OF 2021:

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BETWEEN:

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SMT. KEMPAMMA SINCE DEAD BY LRS ALREADY BROUGHT ON RECORD AS A

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RESPONDENT NO.3

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SHRI. JAYARAMAIAH S/O SHRI. CHANNAPPA AGED ABOUT 49 YEARS, R/AT LAKKENAHALLI VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-562123.

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SHRI. NAGESHA S/O SHRI. CHANNAPPA, AGED ABOUT 46 YEARS, R/AT LAKKENAHALLI VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-562123.

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…APPELLANTS

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(BY SRI. LEELADHAR H.P., ADVOCATE)

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AND:

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SMT. RATHNAMMA W/O M. SIDDAPPA, AGED ABOUT 56 YEARS, R/AT CHINNANAYAKANAPALYA, NAGASANDRA POST, BANGALORE NORTH TALUK, BENGALURU-562123.

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SHRI. CHANNAPPA S/O LATE BYRAPPA, AGED ABOUT 71 YEARS, R/AT MUNTHANAKURCHI VILLAGE, KASABA HOBILI, NELAMANGALA TALUK, BANGLAORE RURAL DISTRICT, PIN-562123.

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SMT. CHIKKA CHANNAMMA W/O ARASAAIAH, D/O LATE BYAPPA, AGED ABOUT 76 YEARS, R/AT KENGANAHALLI VILLAGE,

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SHIVANAPURA POST, DASANAPURA HOBLI, BANGLAORE NORTH TALUK, BENGALURU-562123.

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…RESPONDENTS

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(BY SRI. VINOD PRASAD, ADVOCATE FOR RESPONDENT NO.1; NOTICE SERVED ON RESPONDENT NO.2;

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VIDE ORDER DATED 01.10.2021, SERVICE OF NOTICE TO RESPONDENT NO.3 IS HELD SUFFICIENT)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED IN RA.NO.162/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT ALLOWED THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 07.10.2015 PASSED IN O.S.NO.50/2009 ( OLD NO.316/1999) ON THE FILE OF SENIOR CIVIL JUDGE NELAMANGALA, AND REMANDED BACK THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 26 OF 2021 :

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BETWEEN:

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SMT. KEMPAMMA W/O LATE BYRAPPA, SINCE DEAD BY LRS ARE BROUGHT ON RECORD BY THE APPELLANT IN THE 1^ST APPELLATE COURT

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SHRI. JAYARAMAIAH S/O SHRI. CHANNAPPA AGED ABOUT 49 YEARS, R/AT. LAKKENAHALLI VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-562123.

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SHRI. NAGESH S/O SHRI. CHANNAPPA, AGED ABOUT 46 YEARS, R/AT LAKKENAHALLI VILLAGE, DASANAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU-562123.

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…APPELLANTS

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(BY SRI. LEELADHAR H.P., ADVOCATE)

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AND:

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SMT. RATHNAMMA W/O M. SIDDAPPA, AGED ABOUT 56 YEARS, R/AT CHINNANAYAKANAPALYA, NAGASANDRA POST, BANGALORE NORTH TALUK, BENGALURU-562123.

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SHRI. CHANNAPPA S/O LATE BYRAPPA, AGED ABOUT 71 YEARS, R/AT MUNTHANAKURCHI VILLAGE, KASABA HOBILI, NELAMANGALA TALUK, BANGLAORE RURAL DISTRICT, PIN-562123.

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…RESPONDENTS

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(BY SRI. VINOD PRASAD, ADVOCATE FOR RESPONDENT NO.1; NOTICE SERVED ON RESPONDENT NO.2)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED IN R.A.NO.29/2016 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT ALLOWED THE APPEAL AND SET ASIDE THE JUDGMENT DATED 07.10.2015 PASSED IN O.S.NO.58/2009 (OLD O.S. NO.816/1999) ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA, DISMISSING THE SUIT FOR DECLARATION AND REMANDED BACK THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.

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IN MSA NO. 34 OF 2022

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BETWEEN:

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SMT. RATHNAMMA S/O M. SIDDAPPA, AGED ABOUT 50 YEARS, R/AT CHINNANAYAKANAPALYA, NAGASANDRA POST- 560 073. BANGALORE NORTH TALUK.

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…APPELLANT

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(BY SRI. VINOD PRASAD, ADVOCATE)

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AND:

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SMT.KEMPAMMA W/O LATE BYRAPPA AGED ABOUT 85 YEARS (WRONGLY MENTIONED AS W/O CHANNAPPA) AGED ABOUT 63 YEARS

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SRI. JAYARAMAIAH S/O SRI. CHANNAPPA, AGED ABOUT 43 YEARS

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SRI. NAGESH S/O SRI. CHANNAPPA, AGED ABOUT 40 YEARS

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RESPONDENTS 1 TO 3 ALL ARE RESIDENTS LAKKENAHALLI VILLAGE DASANAPURA HOBLI-562 162 BANGALORE NORTH TALUK.

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SRI. CHANNAPPA S/O LATE BYRAPPA, AGED ABOUT 65 YEARS, R/AT MANTHANAKURCHI VILLAGE, KASABA HOBLI, NELAMANGALA TALUK-562123, BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI. H.P LEELADHAR, ADVOCATE FOR RESPONDENT NOS.1 TO 3)

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THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF CPC AGAINST THE ORDER DATED 23.12.2020 PASSED IN R.A. NO.29/2016 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT ALLOWED THE APPEAL AND SET ASIDE THE JUDGMENT DATED 07.10.2015 PASSED IN O.S.NO.58/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA.

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant in MSA No.33/2022 has challenged the judgment and decree dated 23.12.2020 passed by the Principal District Judge, Bengaluru Rural District, Bengaluru, in R.A.No.162/2015, by which, the appeal was allowed and the case was remitted back to the Trial Court for reconsideration and de novo trial.

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MSA No.34/2022 is filed challenging the judgment and decree dated 23.12.2020 passed by the Principal District Judge, Bengaluru Rural District, Bengaluru, in R.A. No.29/2016 by which, the appeal was allowed and the case was remitted back to the Trial Court for reconsideration and a de novo trial.

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The MSA Nos.7/2021 and 26/2021 are filed challenging the very same judgment and decree by which the appeals are allowed and the cases were remitted back to the Trial Court for reconsideration and a de novo trial.

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The parties henceforth be referred to as they were arrayed before the Trial Court. The appellant in both MSA Nos.33/2022 and 34/2022 was the defendant in O.S. No.50/2009 and the plaintiff in O.S.No.58/2009. In order to avoid confusion, the appellant in both the appeals shall henceforth be referred to by her name "Rathnamma". The respondents in MSA Nos.33/2022 and 34/2022 were the plaintiffs in O.S.No.50/2009 and the defendants in O.S.No.58/2009 and shall henceforth be referred to as "Kempamma and others" for the sake of clarity and easy understanding.

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The suit in O.S.No.50/2009 was filed for a declaration by the predecessor of Kempamma and others, that he was the absolute owner of the suit property and for consequential reliefs. He claimed that the suit

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properties were purchased by him in the year 1975 from Smt. Chikkabyramma while another property was purchased in terms of the sale deed dated 25.02.1965. He claimed that after the purchase, the khatha of the property was transferred to his name and that he was in possession of the same. He claimed that he had two wives namely, Smt. Kempamma and Smt. Rudramma. Kempamma had two daughters and Rudramma had six daughters and a son. He claimed that the defendant (Smt. Rathanamma) went near the property on 01.03.1999 and claimed that she had purchased the property from the predecessor of Kempamma and others under two sale deeds dated 16.12.1998. He alleged that on coming to know about the sale deeds, he approached the office of the Sub-Registrar and obtained certified copies and claimed that the thumb mark stated to be his, on the sale deeds were created and forged. He claimed that he had never sold suit properties to Smt. Rathnamma and that he had never received consideration from her and

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therefore, claimed that the sale deeds set up by Smt. Rathnamma were all forged and fabricated to knock of the property. Smt. Rathnamma who filed O.S.No.58/2009 contended that she purchased the suit properties from the predecessor of Smt. Kempamma and others, in terms of the two sale deeds dated 16.12.1998. Based on these contentions, the Trial Court framed issues and set down the case for trial. The suit in O.S.No.50/2009 was treated as the main suit. The predecessor of Kempamma and others examined as P.W.1 to P.W.5 and marked Exs.P.1 to P.32. Smt. Rathnamma was examined as D.W.1 and marked Ex.D.1 to D.23. The Trial Court found that the certified copies of the sale deeds propounded by Smt. Kempamma dated 16.12.1998 were produced and not the originals. It disbelieved her claim that the originals of the sale deeds were misplaced/lost and hence, disbelieved her claim that she had purchased the suit properties from the predecessor of Smt.Kempamma and others. Consequently, it dismissed the suit filed by the

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predecessor of Smt.Kempamma and others and also dismissed the suit filed by Smt. Rathnamma. Challenging the aforesaid judgment and decree Smt.Rathnamma filed R.A.Nos.162/2015 and R.A.29/2016. During the pendency of the appeals before the First Appellate Court, Smt. Rathanamma filed an application and placed on record the original sale deeds dated 16.12.1998. The First Appellate Court after considering the fact that the suit documents namely sale deeds were placed on record, held that it is appropriate to remit the case back to the Trial Court for reconsideration and also to provide an opportunity to Smt. Kempamma and others to file a fresh pleading and directed the Trial Court to denovo try the suit. Being aggrieved by the same, both of them have filed separate appeals challenging the order of the Trial Court.

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Learned counsel for Smt. Rathnamma

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submitted that the certified copies of the documents were produced and the impugned registers relating to the sale deeds dated 16.12.1998 were summoned from the office

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of the Sub-Registrar. Therefore, mere production of the original sale deeds did not change the merits of the case. Therefore, the Appellate Court must have itself disposed off the suits in accordance with law by considering the evidence recorded by the Trial Court, based on the LTM Register as well as the certified copies and the original sale deeds of title of Smt.Rathnamma in respect of the suit schedule properties. He, therefore, contends that the order of the First Appellate Court deserves to be set aside.

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Per contra, the learned counsel for Smt. Kempamma and others submits that the Appellate Court could not have ignored the evidence of Smt. Rathnamma that these documents were lost and a complaint in that regard was filed before the jurisdictional Police. He contends that the Court must have condoned the nonproduction of original deeds of title before the Trial Court. He submitted that the Appellate Court should not have mechanically allowed the application filed by Smt.Rathnamma and others under Order XLI Rule 27 of

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CPC. Since Smt. Rathnamma was always in possession of the original documents of title, but chose not to produce them during the course of the proceedings before the Trial Court. He therefore, contended that the Appellate court committed an error in remitting the case back to the Trial Court.

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I have considered the submissions of learned

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counsel for Smt.Rathnamma and the learned counsel for Smt. Kempamma and others. I have also perused the judgment of the Trial Court as well the First Appellate

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Court as well as the records of the Trial Court.

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The Trial Court dismissed the suit filed by Smt. Rathnamma and decreed the suit filed by Smt. Kempamma and others, on the sole ground that Smt. Rathnamma did admit the antecedent title of predecessor of Smt. Kempamma and others. The Trial Court held that Smt. Rathnamma did not produce the original documents of title, but had produced the certified copy of the sale deeds. The Trial Court also held that the

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complaint lodged by Smt. Rathnamma about the loss of the original sale deeds was not convincing, as her oral evidence was not in line with Ex.D3. The Trial Court therefore decreed the suit filed by Smt. Kempamma and others, dismissed the suit filed by Smt.Rathnamma.

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Being aggrieved by the said decree Smt. Rathnamma filed two appeals before the First Appellate Court in R.A.Nos.162/2015 and 29/2016.

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During the pendency of the appeal, Smt. Rathnamma filed an application under Order XLI Rule 27 read with Section 151 of Civil Procedure Code and produced the original documents and sale deeds dated 16.12.1998. The Appellate Court must have considered the application in the light of the provisions contained in Order XLI Rule 27 of Civil Procedure Code itself and must have considered the question whether Smt. Rathnamma was prevented by sufficient cause in not producing the documents at the earliest point in time before the Trial Court.

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For the sake of easy understanding Order XLI Rule 27 of Civil Procedure Code is extracted below:

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" 27. Production of additional evidence

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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-

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(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(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]

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(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,

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the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

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It is evident from Ex.D3 that Smt. Rathnamma

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had complained about the loss of the document to the jurisdictional police. No doubt, it was stated in Ex.D3 that the documents were lost by her husband, but in her chiefexamination, she claimed that those documents were lost by her, when she was traveling in a bus. There is some attempt by Smt.Rathnamma to establish the reason for not producing the original documents of title, before the Trial Court. She led secondary evidence by filing certified copies of the documents of title. The Trial Court records disclose that the LTM register of the concerned sale deeds were summoned by the Trial Court from the concerned

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Sub-Registrar and Smt.Rathnamma was also crossexamined on the entries found in the LTM register.

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The Trial Court must have considered the said documents for the purpose of deciding the rights of the parties. However, the Trial Court has microscopically examined the reasons assigned in Ex.D3 and the variance in the examination-in-chief of Smt.Rathnamma and held that the loss of documents cannot be believed. In a suit for declaration of title based on documents of title, the Courts could not have considered the material placed before it lightly, more particularly, when secondary evidence was available before the Trial Court to establish the title of Smt.Rathnamma. The First Appellate Court was therefore justified in holding that the reasons assigned for not producing the document before the Trial Court was just and proper. However, when once the documents were produced before the First Appellate Court, by filing an application under Order XLI Rule 27 CPC, the Appellate

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Court must have complied with the requirement as set out in Order XLI Rule 28 of the Code of Civil Procedure, 1908.

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For the sake of convenience, Order XLI Rule 28 of Civil Procedure is extracted below:

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"28. Mode of taking additional

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evidence. - Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."

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The First Appellate Court must have been mindful of the fact that the Trial Court had spent enormous time in recording the evidence of the parties and had rendered a reasoned judgment. The Appellate Court when confronted with fresh evidence, must have itself taken such further evidence or could have directed the Trial Court to take such evidence and send its record

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and report for disposal of the appeal on merits. The Appellate Court must have refrained in setting aside the judgment of Trial Court and remitting the case to the Trial Court for a de novo trial and also permitting the parties to amend their pleadings. The intention and purport of the Order XLI Rule 27 of Code of Civil Procedure is to avoid unnecessary remands.

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The way in which the Appellate Court has to conduct itself while considering an application under Order XLI Rule 27 of Code of Civil Procedure, is well considered by a Co-ordinate bench of this Court in the case of Shanthaveerappa Vs. K.N.Janardhanachari - 2007(6)

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Kar.L.J. 531 where it was held that the First Appellate Court should not remit the case, unless the suit is disposed of on preliminary issue or when necessary parties are not impleaded in the suit. When there is ample evidence on record to determine the issues framed, the Appellate Court should refrain from remitting the case back to the Trial Court. Applying the aforesaid test, this

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Court is of the opinion that the remand of the case to the

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Trial Court was unnecessary. On the contrary, the Appellate Court must have itself marked the documents of title namely, the sale deeds dated 16.12.1998 and must have considered the evidence available on record and dispose off the appeals in accordance with law.

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In that view of the matter, appeal filed by Smt. Rathnamma in MSA Nos.33/2022 and 34/2022 are allowed and the impugned judgment and decree passed by the Appellate Court remitting the case back to the Trial Court is set aside and the appeals before First Appellate Court are restored on its file and the Appellate Court is directed to mark the document namely two sale deeds dated 16.12.1998 produced by Smt. Rathnamma and dispose off the appeals in accordance with law.

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In view of the above, the appeals filed by Smt. Kempamma and others in MSA No.7/2021 and 26/2021 would not survive for consideration and they are dismissed . The Appellate Court shall dispose off the

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appeals as expeditiously as possible, at any rate, within six months from the date of certified copy of this order.

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Sd/JUDGE

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PSJ/HJ List No.: 1 Sl No.: 23

Smt.Rathnamma v. Smt.Kempamma

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Smt.Rathnamma v. Smt.Kempamma

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