Remanded

Sri. Narasingaiah v. Sri Chaluvappa

Karnataka HC12 Oct 2023RSA/1475/2015

Case brief

AI extract

What is this about?

High Courtallowed a regular second appeal against a decision dismissing a mortgage redemption suit. Relying on an Apex Court precedent, the Court held that the First Appellate Court erred by failing to decide on an application for additional evidence under Order 41 Rule 27 CPC before disposing of the appeal.

What did the court decide?

The First Appellate Court's judgment is set aside; the appeal is remitted to the First Appellate Court to dispose of the matters along with the applications for additional evidence.

Sri. Narasingaiah Vs Sri Chaluvappa — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:37700 RSA No. 1475 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1475 OF 2015 (RES)

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BETWEEN:

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SRI. NARASINGAIAH S/O LATE SINGRAPPA AGED ABOUT 54 YEARS RESIDING AT NO.61 INSTITUTE OF EDUCATION HIGH SCHOOL ROAD, RAJENDRANAGARA, KESARE MYSORE – 570 018. …APPELLANT (BY SRI. Y V PRAKASH, ADVOCATE SRI. Y.K. NARAYANA SHARMA., ADVOCATE)

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AND:

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Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka

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SRI CHALUVAPPA S/O LATE CHIKKANARAYANAPPA AGED ABOUT 79 YEARS RESIDING AT THUPPADAMADU VILLAGE, KASABA HOBLI NAGAMANGALA TALUK – 571 432.

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…RESPONDENT (BY SRI. SYED AKBAR PASHA, ADVOCATE FOR SRI. MAHANTESH S. HOSMATH, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.01.2015 PASSED IN RA NO.8/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C. NAGAMANGALA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT

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2 - NC: 2023:KHC:37700 RSA No. 1475 of 2015

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AND DECREE DATED 26.10.2006 PASSED IN OS.NO.184/2002 ON THE FILE OF THE CIVIL JUDGE (Jr.Dn.) AND JMFC, AT NAGAMANGALA.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 14.01.2015 passed in R.A.No.08/2007 by the Senior Civil Judge and JMFC, Nagamangala.

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The parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondent is the defendant.

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The brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for redemption of mortgage and deliver back the mortgage deed with due endorsements of discharge along with possession of the suit schedule property to the plaintiff by receiving the mortgage amount of Rs.300/-. Father of the plaintiff mortgaged the suit

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3 - NC: 2023:KHC:37700 RSA No. 1475 of 2015

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property which is an agricultural land as per registered mortgage deed dated 12.11.1971 in favour of defendant for a sum of Rs.300/- and period fixed for redemption is five years. The father of the plaintiff died and plaintiff is the eldest member of the family and filed the suit. The defendant got changed the khata in his name and evading to redeem the mortgage. Plaintiff got issued legal notice for which the defendant gave untenable reply. Hence, the cause of action arose for the plaintiff to file the suit for redemption of mortgage.

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The defendant filed the written statement denying the averments made in the plaint. It is contended that the grandfather of the plaintiff and defendant one Chaluvegowda and father of the plaintiff and father of defendant and one Narasingegowda and one Ugrappa are his sons. During the life time of Chaluvegowda the joint family property was partitioned. The said partition land bearing survey No.3/4 measuring 18 guntas of land, in that 9 guntas each fell to the share of father of plaintiff

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and defendant respectively. Father of the plaintiff sold his share in favour of brother of defendant N.Narasingaiah under registered sale deed dated 25.10.1969. The plaintiff signed as consenting witness. Thereafter there was a partition which took place between the defendant and his brother N.Narasingaiah. The defendant was allotted with 9

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guntas of land which is the property purchased by his father and claimed that there is no mortgage deed and sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that his father had mortgaged the suit property in favour of defendant for a sum of Rs.300/- as per registered mortgage deed dated 12.11.1971 and he died without redeeming the mortgage?

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2. Whether the plaintiff proves that he being the elder member of family demanded the defendant to redeem the mortgage on receiving mortgage money but defendant refund to redeem the mortgage?

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3. Whether the defendant proves that originally suit schedule property measures 18 guntas and in the partition father of plaintiff allotted

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5 - NC: 2023:KHC:37700 RSA No. 1475 of 2015

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9 guntas and the father of defendants allotted 9 guntas and father of plaintiff sold the said 9 guntas in favour of brother of defendant Narasingaiah as per sale deed dated 25.10.1969 and in the partition effected between the defendant and his brother 9 guntas fallen to the share of father of defendant and 9 guntas which was purchased by the brother of defendant was allotted to the defendant and he is in possession of the said property?

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4. Whether the plaintiff is entitled for the relief claimed in the plaint?

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5. What order or decree ?

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The plaintiff in order to prove his case, examined himself as PW.1 and got marked 6 documents as Ex.p.1 to 6. Defendant No.1 was examined as DW.1 and examined 2 witnesses as DW.2 and 3 and got marked 12 documents as Ex.D.1 to 12. The trial court considering the oral and documentary evidence answered issue No.1, 2 and 4 in the negative, recasted issue no.3 answered in the affirmative and consequently dismissed the suit of the plaintiff vide judgment dated 26.10.2006.

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7. The plaintiff aggrieved by the judgment and

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decree passed by the trial Court, filed an appeal in R.A.No.08/2007 on the file of Senior Civil Judge and JMFC, Nagamangala.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether the plaintiff proves that as on 12.11.1971 his father Singraiah was the owner of suit property and he mortgaged the said property in favour of defendant by executing registered mortgage deed dated 12.11.1971?

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2. Whether the plaintiff is entitled for the relief of redemption of mortgage and possession of suit property?

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3. Whether the trial Court is justified in dismissing the plaintiff suit?

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4. What order or decree ?

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The First Appellate Court on re-appreciating the

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evidence placed on record answered points No.1 and 2 in

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the negative and point No.3 in the affirmative and consequently, dismissed the appeal, confirming the

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NC: 2023:KHC:37700 RSA No. 1475 of 2015

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judgment and decree passed by the trial court vide judgment dated 14.01.2015.

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The plaintiff, aggrieved by the judgments and decrees passed by the Courts below, filed this second appeal.

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This court has admitted the appeal on the following substantial questions of law :

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1. Whether in facts and circumstances, the courts below are justified legally in holding that the plaintiff ought to have proved his title over suit property?

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2. Whether the First Appellate Court has erred in not considering the application filed under Order 41 Rule 27 of the Code of Civil procedure and in not permitting the appellant to lead additional evidence?

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Heard the learned counsel for the plaintiff and

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also learned counsel for the defendant.

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Learned counsel for the plaintiff submits that plaintiff has filed an application for production of additional evidence in I.A.No.3 and he also submits that plaintiff also

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filed applications I.A.Nos.2 and 4. The First Appellate Court without passing any orders on the said applications has proceeded to pass the judgment on merit. In order to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Jatinder Singh and another (Minor through mother) Vs. Mehar Singh and others reported in AIR 2009 SC 354(1). Hence, on these grounds he prays to allow the appeal.

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Per contra, learned counsel for the defendant submits that plaintiff has failed to prove his title and both the Courts below were justified in recording the finding of fact against the plaintiff. He supports the impugned judgments and decrees passed by the Courts below. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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9 - NC: 2023:KHC:37700 RSA No. 1475 of 2015

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Learned counsel for the parties jointly submit that the First Appellate Court has not considered the application for production of additional evidence. In view of the same, substantial question No.1 would not arise for consideration. Hence, they prayed to delete substantial question No.1. Their submission is placed on record. Accordingly, substantial question No.1 is deleted.

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Substantial question No.2 :

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It is the case of the plaintiff that plaintiff has filed a

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suit for redemption of mortgage. The defendant filed written statement and the parties have adduced evidence in the trial Court. The trial Court on the basis of oral and documentary evidence dismissed the suit. The plaintiff aggrieved by the judgment and decree passed by the trial Court, preferred the an appeal before the first Appellate Court. During the pendency of the appeal, the plaintiff has filed applications i.e., I.As 2 to 4 before the First Appellate Court. The First Appellate Court without passing any order

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NC: 2023:KHC:37700 RSA No. 1475 of 2015

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on the said applications proceeds to pass the impugned judgment.

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Though the applications are filed by the parties, it is the duty of the Court to deal with the same on merits.

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The Hon'ble Apex Court in the case of Jatinder Singh referred (supra) held that, 'While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.'

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NC: 2023:KHC:37700 RSA No. 1475 of 2015

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For the aforesaid reasons and considering the

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law laid down by the Hon'ble Apex Court in the case of Jatinder Singh referred (supra), the impugned judgment

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passed by the First Appellate Court is liable to be set aside. In view of the above discussion, I answer substantial question No.2 in the affirmative.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and decree passed by the First Appellate Court is hereby set aside.

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The appeal is remitted to the First Appellate Court.

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The parties are directed to appear before the First Appellate Court on 27.11.2023 without awaiting any further notice.

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Further, the First Appellate Court is directed to dispose of the appeal and I.A.Nos.2 to 4 in accordance with law within a period of one year from the date of

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NC: 2023:KHC:37700 RSA No. 1475 of 2015

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receipt of copy of this order. All the contentions of the parties are kept open.

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Office is directed to transmit the trial Court records

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to the First Appellate Court.

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SD/JUDGE

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sks

Sri. Narasingaiah v. Sri Chaluvappa

Case brief

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Sri. Narasingaiah v. Sri Chaluvappa

Case brief

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