Allowed

Sri M Pillappa v. Smt Bagya

Karnataka HC30 Oct 2023RSA/231/2012

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Karnataka held that rejecting an application for additional evidence under Order 21 Rule 27 CPC without reasons renders a judgment arbitrary. The appeal was allowed, the lower appellate decree set aside, and the matter remitted.

What did the court decide?

The appeal allowed; judgment and decree of the first appellate court set aside; matter remitted to the first appellate court to consider the appeal and the application for additional evidence and pass

Sri M Pillappa Vs Smt Bagya — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^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. 231 OF 2012 (DEC/INJ)

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BETWEEN:

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SRI. M PILLAPPA AGED ABOUT 63 YERAS, S/O MUNISHAMPPA, AGRICULTURIST R/O DEVARMALLUR VILLAGE, KASABA HOBLI, SIDLAGHATTA TALUK – 562 105.

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…APPELLANT

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(BY SRI. PREM SAI REDDY, ADVOCATE FOR SRI. VINOD REDDY V., ADVOCATE)

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AND:

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SMT. BAGYA D/O N NAGARAJAPPA R/O DEVARMALLUR VILLAGE, KASABA HOBLI, SIDLAGHATTA TALUK – 562 105

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SRI N VENKATESH

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S/O N NAGARAJAPPA R/O DEVARAMALLUR VILLAGE, KASABA HOBLI, SIDLAGHATTA TALUK – 562 105

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…RESPONDENTS

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(BY SRI. S B HEBBALLI, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 5.11.2011 PASSED IN R.A.NO.76/2003 ON THE FILE OF THE ADHOC SESSIONS JUDGE, FAST TRACK COURT-II, CHINTAMANI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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DATED 25.7.2003 PASSED IN O.S.NO.69/1999 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., SIDLAGHATTA.

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THIS APPEAL, COMING ON FOR FINAL 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 05.11.2011, passed in R.A.No.76/2003 by the Adhoc Sessions Judge, FTC-II, Chintamani, confirming the judgment and decree dated 25.07.2003 passed in O.S.No.69/1999 by the Prl. Civil Judge (Jr.Dvn.) and JMFC at Sidlaghatta.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent No.1 is the legal representative of deceased plaintiff No.1 i.e., plaintiff No.1(a) and respondent No.2 is plaintiff No.2.

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

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The plaintiffs filed a suit for declaration of title, permanent injunction, mandatory injunction and

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possession. It is the case of the plaintiffs that the defendant had constructed a house by encroaching upon the extent of 33 X 30 feet in the suit schedule property. Originally the eastern boundary of the suit property was shown as road and by amending the plaint, the eastern boundary was corrected as Panchayath site and illegal construction of the defendant. It is contended that the suit schedule property was the absolute property of late Venkateshappa, the husband of plaintiff No.1 and grand father of plaintiff No.1(a) and 2. After his death, the plaintiffs are his only legal heirs, who have succeeded to the suit schedule property. The plaintiffs are in possession and enjoyment of the same by paying tax to the Governmetn and they have obtained a house licence from the Grama Panchayath to put a rearing house in the suit schedule property. The defendant has no manner of right, title or interest over the suit schedule property and is trying to trespass into the suit schedule property. It is further contended that the defendant also tried to dispossess the plaintiffs from the suit schedule property.

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Hence, the plaintiffs initially filed a suit for a permanent prohibitory injunction. Thereafter, the plaintiffs got amended the plaint and sought for the relief of declaration of title, possession and mandatory injunction contending that the defendant has no legal right in possession of the suit schedule property and prayed to decree the suit.

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Defendant filed written statement denying the

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averments made in the plaint. It is contended that he is the absolute owner and person in possession of a site measuring an extent of 45 X 60 feet, bounded on the east by road, west by vacant site belonging to plaintiff No.1, north by vacant site belonging to one Munivenkatappa and south by road. It is further contended that the said site is in possession of the defendant for the past 30 years and the defendant is using the site for the purpose of tethering cattle, to keep haystack etc. The defendant had also planted 14 ovarsi trees, one tamarind tree and one jali tree. It is contended that the Devaramallur Grama Panchayath had also mutated the katha in favour of the

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defendant on 12.02.1995 and the defendant had also obtained the licence from the Devaramallur Grama

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Panchayath on 12.07.1996 and on 15.04.1999 for construction of house. It is stated that the defendant has already started construction of the house and the house was constructed up to the roof level. Meanwhile, the plaintiffs have filed the present suit including the defendant's site on the plaint schedule. It is contended that the plaintiffs were never in possession of the site up to the road towards east. It is contended that the plaintiffs have got created the documents and filed the present suit. Hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues:

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Issues:

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1. Whether the plaintiff proves his title over the suit schedule property?

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1. Whether plaintiff proves his lawful possession over the suit schedule property?

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1. Whether plaintiff proves the interference by the defendant?

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1. Whether the plaintiff proves that he is entitled for an order of declaration and permanent injunction?

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1. What order or decree?

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Additional Issue framed on 13.08.2001:

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1. Whether the defendant proves that the plaintiffs including the defendant property which is described in the true facts in the written statement filed this suit by giving wrong measurement and boundaries as contended in the true facts of the written statement?

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Additional Issues framed on 25.06.2003:

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1. Whether the plaintiffs prove that after the filing of the suit the defendant has encroached upon the plaint schedule property and has laid the foundation and constructed the house measuring 33 X 30 feet?

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1. Whether the plaintiffs prove that the defendant is liable to demolish the said construction?

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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1. Whether the plaintiffs are entitled for the relief of possession and mandatory injunction?

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Additional Issue framed on 13.08.2001 is re-casted as follows:

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1. Whether the defendant proves that he is the absolute owner of the property described in para (a) in page 2 of his written statement?

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In order to prove the case of the plaintiff, plaintiff No.2 examined as PW-1 and got examined one witness as PW-2 and got marked 9 documents as Exs.P1 to P9(a). Defendant No.1 examined as DW-1 and got examined one witness as DW-2 and got marked 14 documents as Exs.D1 to D14. The Court Commissioner was examined as CW1 and got marked 5 documents as Exs.C1 to C5. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1, 3, 4, additional issue No.2 framed on 25.06.2003, additional issue No.3 framed on 25.06.2003 in affirmative, issue No.2 answered that the plaintiffs are in possession of the plaint schedule

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property excluding the encroached portion by the defendant, additional issue No.1 framed on 13.08.2001 in negative, additional issue No.1 framed on 25.06.2003 answered that the defendant has encroached upon the plaint schedule property to an extent of east-west 30 feet and north-south 39.2 feet on the eastern side of the plaint schedule property and consequently decreed the suit of the plaintiffs with cost. It is ordered and declared that the plaintiffs are the absolute owners of the plaint schedule property. It is held that the defendant has encroached upon the plaint schedule property to an extent of 30 feet and 39.2 feet on the eastern side and put up the construction and the defendant shall demolish the said portion at his own costs and hand over the physical possession of the said portion of the plaint schedule property to the plaintiffs within three months from date of judgment and restrained the defendant by way of permanent injunction from interfering with the lawful, peaceful possession and enjoyment of the plaintiffs over the plaint schedule property.

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.76/2003 before the Civil Judge (Sr.Dn.),

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Chintamani. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether the impugned judgment and decree passed by the trial Court is justifiable under law?

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2) Whether the interference of this Court is called for with the judgment of the lower Court?

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3) What order?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence placed on record by the parties, answered point No.1 in affirmative, point No.2 answered that calls for interference with respect to the extent of structure to be removed by defendant only and consequently dismissed the appeal with cost and consequently, modified the judgment and decree passed by the trial Court and ordered that the defendant shall demolish the structure measuring 24 feet east-west and

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39 feet north-south, built by him in the north-eastern portion illegally during pendency of the suit immediately as per his undertaking as shown in the sketch of Assistant Executive Engineer, Sidlaghatta dated 24.08.2010 submitted before the First Appellate Court. It is ordered and decreed that the defendant is directed to pay the compensatory cost of Rs.25,000/- to the plaintiffs within one month from the date of order, otherwise, the plaintiffs are at liberty to recover the same under the process of Court by attaching and selling of his property and detaining him in civil prison. The defendant, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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Whether an application filed under Order XLI Rule 27 of CPC before the appellate Court can be rejected summarily without assigning any reasons"?

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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Heard the learned counsel for the defendant

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and also the learned counsel for the plaintiffs.

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Learned counsel for the defendant submits that the defendant had filed an application - I.A.No.2 before the First Appellate Court. The First Appellate Court without assigning any reasons on the said application in the impugned judgment in a single line has rejected the said application. He submits that the First Appellate Court has not applied its mind while deciding I.A.No.2. He submits that the judgment passed by the First Appellate Court is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the plaintiffs submits that the First Appellate Court after considering the material on record was justified in passing the impugned judgment. He further submits that the First Appellate Court has rejected I.A.No.2 filed by the defendant before the First Appellate Court. Hence, on these grounds, he prays to dismiss the appeal.

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Initially, the plaintiffs filed a suit for permanent injunction prohibiting the defendant from encroaching upon the suit property. Further, during the pendency of the suit, plaintiffs filed the application for amendment to the plaint seeking relief of declaration of title, possession and mandatory injunction. The said application came to be allowed and the plaintiffs have carried out the amendment in the plaint. It is the case of the plaintiffs that the suit schedule property was owned by late Venkateshappa i.e., the husband of plaintiff No.1 and grandfather of plaintiff No.1(a) and 2 and after his death, the plaintiffs who are

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the sole legal heir of deceased Venkateshappa have succeeded to the property. The plaintiffs are in possession and enjoyment of the suit schedule property. The defendant has no right, title or interest over the suit schedule property. After filing a suit, the defendant trespassed into the suit schedule property and encroached

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upon the property of the plaintiffs and thereby illegally constructed the house an extent of 33 X 30. The plaintiffs in order to substantiate their case, plaintiff No.2 was examined as PW.1 and he has reiterated the plaint averments in examination-in-chief and produced the documents i.e., Ex.P1 is the Khaneshumari Patti, Ex.P2 is the House List Tax Assessment Extract, Exs.P3 and P4 are the tax paid receipts, Ex.P5 is the licence, Ex.P6 is the Khaneshumari Extract, Ex.P7 is the Demand Register Extract, Ex.P8 is the House List Book, Ex.P9 is the New House List Book. The plaintiffs in order to prove their possession also examined one witness as PW.2. He has deposed the same line of PW.1.

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In rebuttal, the defendant was examined himself as DW.1 and he has reiterated the written statement averments in the examination-in-chief and produced the documents i.e., Ex.D1 is the Mutation Extract, Ex.D2 and D3 are the House Lease Extracts, Ex.D4 and D5 are the Demand Register Extracts, Exs.D6

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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and D7 are the licenses, Exs.D8 and D9 are the House List Extracts, Ex.D10 is the Khaneshumari extract, Ex.D11 is the endorsement, Ex.D12 is the Old House list book, Ex.D13 is the New House List Book, Ex.D14 is the order copy of Zilla Panchayath in appeal No.5/2001-02. Further during the pendency of the suit, the Court Commissioner was appointed to inspect the suit property. The Court Commissioner visited the spot and submitted a report and sketch. The Court Commissioner was examined as CW.1 and reports and sketchs are marked as Exs.C1 to C5. The trial Court placing a reliance on evidence of the plaintiffs and evidence of CW1 and reports held that the defendant had encroached upon the plaint schedule property to an extent of 30 feet X 39.2 feet on the eastern side and put up a construction and defendant shall demolish the said portion. The trial Court after considering the oral and documentary evidence decreed the suit of the plaintiff vide judgment dated 25.07.2003. The defendant aggrieved by the judgment preferred an appeal in R.A.No.76/2003. The defendant filed I.A.No.2 before the First Appellate Court

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for production of additional evidence. The First Appellate Court after hearing the parties answered the points for consideration. I have perused the judgment passed by the Appellate Court. Though the defendant has filed an application for production of additional evidence under Order 41 Rule 27 of CPC, the First Appellate Court without

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discussing the contents of the application filed by defendant i.e., I.A.No.2 is rejected on a single sentence stating “by allowing application under Order 41 Rule 27 of CPC, no fruitful purpose serves, hence, same is rejected.” The First Appellate Court has not assigned any reasons for

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rejecting the application for production of additional evidence. The First Appellate Court has committed an error in not assigning the reasons in rejection of application for production of additional evidence. Hence, the judgment and decree passed by the First Appellate Court is perverse and arbitrary and the same is liable to be set aside. Hence, I answer the substantial question of law in negative.

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The judgment and decree dated

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05.11.2011, passed in R.A.No.76/2003 by the

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Adhoc Sessions Judge, FTC-II, Chintamani is set aside.

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The matter is remitted to the First Appellate Court.

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The First Appellate Court is directed to consider the appeal and also I.A.No.2 and pass judgment, in accordance with law.

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The parties are directed to appear before the First Appellate Court on 18.12.2023, without awaiting any further notice.

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As the appeal is of the year 2003, the First Appellate Court is directed to dispose of the appeal, within a period of six months from the date of receipt of copy of this judgment.

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NC: 2023:KHC:38547 RSA No. 231 of 2012

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This Court has not made adjudication on

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the merits in issue.

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All the contention of the parties are kept

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open.

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Office is directed to transmit the records

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to the First Appellate Court.

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Sd/JUDGE

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SSB

Sri M Pillappa v. Smt Bagya

Case brief

What is this about?

What did the court decide?

Sri M Pillappa v. Smt Bagya

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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