Remanded

Mari Gowda v. Y B Nagaraju

Karnataka HC2 Nov 2023RSA/882/2013

Case brief

AI extract

What is this about?

The High Court allowed the second appeal and set aside the First Appellate Court's judgment, remitting the matter to the First Appellate Court to consider an application for production of additional evidence under Order 41 Rule 27 CPC before deciding on merits regarding suit property dispute.

What did the court decide?

The impugned judgment dated 02.03.2013 was set aside and the matter remitted to the First Appellate Court to consider the appeal afresh along with the application for production of additional evidence

Mari Gowda Vs Y B Nagaraju — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 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. 882 OF 2013 (INJ)

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BETWEEN:

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MARI GOWDA S/O LATE NINGE GOWDA SINCE DEAD BY HIS LR'S

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1(A) RAJANNA AGED ABOUT 52 YEARS S/O LATE MARIGOWDA R/AT NIDUGOLI VILLAGE CHANNAPATNA HOBLI RAMANAGARAM DISTRICT

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Digitally signed by R DEEPA Location: High Court of Karnataka

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1(B) SMT. SHIVAMMA AGED ABOUT 47 YEARS D/O LATE MARIGOWDA W/O NAGARAJU R/AT No.14/1, 2^ND MAIN 8^TH CROSS, DEEPANJALINAGAR BANGALORE

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1(C) SMT. SUNANDAMMA AGED ABOUT 44 YEARS D/O LATE MARIGOWDA W/O CHIKKAMOGA R/AT AGALAHALLI MADDUR TALUK MANDYA DISTRICT.

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1(D) SMT. SHARADHA AGED ABOUT 41 YEARS D/O LATE MARIGOWDA W/O BASAVARAJU R/AT No.14/1, 2^ND MAIN 8^TH CROSS, DEEPANJALINAGAR BANGALORE.

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1(E) SMT. NAGAMBIKE AGED ABOUT 38 YEARS D/O LATE MARIGOWDA W/O MAHESH R/AT YALIYOOR VILLAGE CHANNAPATNA TALUK RAMANAGARAM DISTRICT

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…APPELLANTS

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(BY SRI. T.P. VIVEKANANDA, ADVOCATE)

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AND:

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Y B NAGARAJU S/O LATE BORE GOWDA SINCE DECEASED BY HIS LR'S

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1(A) SMT. GOWRAMMA AGED ABOUT 71 YEARS W/O LATE. Y.B. NAGARAJU

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1(B) SRI. Y.N. SHIVAKUMAR AGED ABOUT 45 YEARS S/O LATE Y.B. NAGARAJU

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1(C) SRI. RAMESH AGED ABOUT 44 YEARS S/O LATE Y.B. NAGARAJU

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1(D) SRI. SATHISH AGED ABOUT 41 YEARS S/O LATE Y.B. NAGARAJU

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1(E) SMT. SHASHIKALA AGED ABOUT 35 YEARS D/O LATE Y.B. NAGARAJU

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ALL ARE R/AT YELETHOTADA HALLI VIRUPAKSHIPURA HOBLI CHENNAPATNA TALUK – 571 501 RAMANAGARAM DISTRICT.

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…RESPONDENTS

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(BY SRI. ASHWIN KUMAR M S, ADVOCATE)

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THIS RSA IS FILED U/S 100 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 2.3.2013 PASSED IN R.A.NO.94/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., CHANNAPATTANA, RAMANAGARA DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.4.2009 PASSED IN OS.NO.122/2004 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC., CHANNAPATNA.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 02.03.2013, passed in R.A.No.94/2012 by the Court of Senior Civil Judge and JMFC, Channapattana, Ramanagar, confirming the judgment and decree dated 25.04.2009 passed in

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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O.S.No.122/2004 by the Court of Additional Civil Judge (Jr.Dn.) at Channapatna.

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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 is the plaintiff.

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

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The plaintiff filed a suit for permanent injunction against the defendant from restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property and to direct the defendant to pay the damages of Rs.5,000/- to the plaintiff. It is the case of the plaintiff that the plaintiff is the absolute owner of the suit schedule property bearing Sy.No.50 measuring 2 acres 06 guntas situated in Nelamakanahalli Village, V.P.Pura Hobli, Channapatna Taluk and originally, it was a gomal land and the plaintiff has been in physical possession and enjoyment of the same since from 1965 and thereafter, the plaintiff filed an application for

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regularization of unauthorized occupation of the suit schedule property. Form No.1 was issued on 05.10.1982 in favour of the plaintiff. The plaintiff was become the absolute owner in possession and enjoyment of the suit schedule property. It is contended that the plaintiff is paying the land revenue to the Government and got transferred the khatha and pahani into his name in the year 1984-85 with regard to suit schedule property. The defendant along with one Ningegowda challenged the grant made in favour of the plaintiff by preferring an appeal before the Assistant Commissioner. The grant order was cancelled and directed the Tahsildar to build up fresh records for both the parties depending upon the enjoyment. The plaintiff aggrieved by the order passed by the Assistant Commissioner, preferred an appeal before the Deputy Commissioner. The Deputy Commissioner confirmed the order passed by the Assistant Commissioner. The plaintiff preferred an appeal before the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal set aside the order passed by the Assistant

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Commissioner and the Deputy Commissioner and confirmed the grant order in favour of plaintiff. The defendant and Ningegowda have challenged the order passed by the Karnataka Appellate Tribunal by preferring an writ appeal in W.A.No.4330/1999. The said appeal came to be dismissed. It is contended that the Government has acquired the portion of the suit land vide notice dated 08.11.2000 to an extent of 12 guntas and remaining portion to an extent of 1.34 acres of the suit land is in possession and enjoyment of the plaintiff. It is further stated that the plaintiff has received the award notice from the Special Land Acquisition Officer, Ramanagara. It is contended that the defendant being a stranger to the suit schedule property has no right, title or interest over the suit schedule property. The defendant tried to trespass into the suit schedule property. The plaintiff lodged a complaint against the defendant and the said criminal case ended in acquittal. It is contended that the plaintiff once again lodged a complaint against the defendant for destroying the growing crops by trespassing

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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the suit schedule property and same was registered in Crime No.116/2004. The plaintiff requested the defendant not to trespass into the suit schedule property, but the defendant did not stop the illegal act. Hence, cause of action arose for the plaintiff to file a suit for permanent injunction.

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Defendant filed written statement denying the averments made in the plaint. It is contended that the suit schedule property is the Government land measuring about 100 acres. It is contended that the defendant occupied the suit property long back and he is in unauthorized possession and he applied for grant of the same. He is entitled for regularization of the unauthorized occupation. The plaintiff is not in possession of the suit schedule property and further contended that the plaintiff cannot claim the suit property as granted in favour of the defendant. Hence, on these grounds, 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 his lawful possession and enjoyment over the suit property as on the date of the suit?

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1. Whether the plaintiff proves the interference of defendant with his possession and enjoyment over the suit property as alleged at para 6 of the plaint?

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1. Whether plaintiff entitled for the suit reliefs?

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1. What order or decree?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got marked 37 documents as Exs.P1 to P37. Defendant examined himself as DW-2 and got examined two witnesses as DW-1 & DW-

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3 and no documents were marked. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 and 2 in affirmative and issue No.3 in partly affirmative and consequently, decreed the suit of the plaintiff in part. It is ordered and decreed restraining the defendant by way of permanent injunction

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from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff and the relief of damages of Rs.5,000/- claimed by the plaintiff from the defendant was rejected.

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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.94/2012. The First Appellate Court, after hearing the parties, has framed the following points for

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consideration:

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1) Whether the appellant has made out sufficient grounds to interfere with the impugned judgment and decree of the trial Court?

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2) 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 negative and consequently dismissed the appeal filed by the defendant, confirming the judgment and decree passed by the trial Court vide judgment dated 02.03.2013. The defendant, aggrieved by

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the judgments and decrees passed by the courts below,

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has filed this second appeal.

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This court admitted the appeal on the following

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substantial question of law :

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1. Whether the lower appellate Court was justified in dismissing the appeal without considering I.A.No.3 filed by the appellant under Order 41 Rule 27 of CPC for production of additional evidence?

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1. Whether the lower appellate Court was justified in relying upon Exhibits – P36, P37, P38 and P2 to hold that the respondent was in possession of the suit schedule property?

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Heard the learned counsel for the plaintiff and

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also the learned counsel for the defendant.

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Learned counsel for the defendant submits that

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during the pendency of the appeal before the First Appellate Court, the defendant filed an application I.A.No.3 for production of additional evidence. He submits

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that the First Appellate Court vide order dated 17.01.2013 passed an order to consider the application under Order 41

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Rule 27 to be heard along with main appeal. He submits that the First Appellate Court has not passed any order on the application filed by the defendant. Hence, in order to buttress his arguments, he has placed a reliance on the judgment of Hon'ble Apex Court in the case of JATINDER SINGH & ANR. VS. MEHAR SINGH & ORS. reported in AIR 2009 SC 354 . Hence, on these grounds, he prays to set aside the judgment passed by the First Appellate Court and remit the matter to the First Appellate Court to consider the application-I.A.No.3 along with main appeal.

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Per contra , learned counsel for the plaintiff submits that both the courts below have concurrently recorded a finding of facts against the defendant. He submits that the plaintiff has produced the documents to show that the plaintiff is in possession of the suit schedule property. He further submits that the defendant is not in possession of the suit schedule property and the defendant has no title or interest over the suit schedule property. He submits that both the courts below have concurrently

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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recorded a finding of facts against the defendant. Hence, he submits that the judgments passed by the courts below

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are just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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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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Substantial questions of law No.1 : The

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plaintiff filed a suit for permanent injunction against the defendant. It is the case of the plaintiff that the plaintiff is in unauthorized possession of the suit schedule property

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for more than 45 years. The plaintiff filed an application for regularization of his unauthorized occupation. The concerned Authority regularized his unauthorized possession. The defendant aggrieved by the order of regularization, preferred an appeal before the Assistant Commissioner. The Assistant Commissioner set aside the order of grant made in favour of the plaintiff. The plaintiff aggrieved by the order passed by the Assistant Commissioner, preferred an appeal before the Deputy

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Commissioner. The Deputy Commissioner dismissed the appeal filed by the plaintiff and upheld the order passed by the Assistant Commissioner. The plaintiff aggrieved by the order passed by the Assistant Commissioner and Deputy Commissioner, preferred appeal before the Karnataka Appellate Tribunal. The Karnataka Appellate Tribunal allowed the appeal filed by the plaintiff and set aside the order passed by the Assistant Commissioner and Deputy Commissioner and the grant made in favour of the plaintiff was confirmed. The defendant aggrieved by the order passed by the Karnataka Appellate Tribunal, preferred writ petition and the said writ petition came to be dismissed and writ appeal was filed in W.A.No.4330/1999, which came to be dismissed. It is the case of the plaintiff that the defendant is trespassing into the suit schedule property. The plaintiff had lodged two criminal cases against the defendant. One case was ended in acquittal and in another case, charge sheet was filed. It is further contended that the portion of the suit schedule property was acquired and the Special Land Acquisition Officer has

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passed an order showing the name of the plaintiff as owner of the suit schedule property. It is contended that the plaintiff is in possession of 01 acre 34 guntas of the suit property. The plaintiff in support of his case has produced the documents i.e., Ex.P1 is the Form No.1 filed by the plaintiff, Ex.P2 is the revenue sketch, Exs.P3 to P14

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are the RTC extracts in respect of the suit schedule property, which stands in the name of the plaintiff, Exs.P15 to 26 are the tax paid receipt, wherein it discloses that the plaintiff has paid the tax in respect of the suit schedule property, Ex.P27 is the Rasheedi Patta, Ex.P28 is the Krushi pass book, which discloses that the plaintiff is the owner in respect of the suit land, Ex.P29 is the 6(1) Notification, which discloses that the plaintiff is the owner of the suit land and the land of the plaintiff is acquired, Ex.P30 is the certified copy of the order passed in W.P.No.34677/1996, wherein the defendant and his father filed a writ petition. This Court vide order dated 26.03.1999, dismissed the writ petition filed by the defendant and his father. The plaintiff filed the order

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passed in W.A.No.4330/1999, marked as Ex.P31, wherein the defendant and his father aggrieved by the order passed in the aforesaid writ petition, preferred the writ appeal in W.A.No.4330/1999. The Division Bench vide judgment dated 02.09.1999 dismissed the writ appeal. Ex.P32 is the notice issued under Section 4(1) of the Land Acquisition Act, wherein the Land Acquisition Officer issued a notice under Section 4(1) of the Land Acquisition Act proposing to acquire the land of the plaintiff measuring 12 guntas. Ex.P33 is the copy of notice issued to the plaintiff. Ex.P34 is the award notice, Ex.P35 is the revenue sketch, Ex.P36 is the certified copy of the mahazar and Ex.P37 is the RTC extract.

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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 also examined two witnesses as DW.2 and DW.3 in order to prove his possession over the suit schedule property. But the defendant except examining the witnesses has not

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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produced any documents to show that the suit land was granted in favour of the defendant. The trial Court considering the oral and documentary evidence decreed the suit of the plaintiff in part and restrained the defendant by way of permanent injunction from interfering into the peaceful possession and enjoyment of the suit schedule property of the plaintiff and relief of damages as sought by the plaintiff was dismissed. The defendant aggrieved by the judgment passed by the trial Court, preferred an appeal in R.A.No.94/2012.

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During the pendency of the appeal, the defendant filed an application for production of additional evidence i.e., I.A.No.3. The First Appellate Court vide order dated 17.01.2013 ordered that an application under Order 41 Rule 27 of CPC to be heard along with main appeal. From the perusal of the judgment passed by the First Appellate Court, the First Appellate Court has not passed any order on the application filed by the defendant under Order 41 Rule 27 of CPC. The First Appellate Court

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without passing any order on the application filed under Order 41 Rule 27 of CPC, passed the judgment on merits. The procedure adopted by the First Appellate Court is contrary to the law laid by the Hon'ble Apex Court in the case JATINDER SINGH (Supra). In view of the above discussion, I answer substantial questions of law No.1 in negative.

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Substantial questions of law No.2 : It is the

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case of the plaintiff that the plaintiff is the owner of the suit schedule property and in order to establish his possession over the suit schedule property, the plaintiff has produced Form No.1 and also the revenue records and further, the plaintiff has produced the notice under Section 4(1) of the Land Acquisition Act issued by the Special Land Acquisition Officer and award notice, which discloses that the plaintiff is the owner and in possession of the suit schedule property and produced the mahazar and also RTC in respect of the suit schedule property which discloses that the plaintiff is in possession of the suit schedule

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property. Though the First Appellate Court has placed a reliance on Exs.P36 to P38 and Ex.P2 held that the plaintiff is in possession of the suit schedule property. However, as

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the First Appellate Court has failed to consider an application filed under Order 41 Rule 27 of CPC. Hence, the matter requires re-consideration by the First Appellate

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Court only to consider an application for production of additional evidence. In view of answering substantial questions of law No.1 in the negative, substantial questions of law No.2 does not arise for consideration.

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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 impugned judgment dated 02.03.2013 passed in R.A.No.94/2012 passed by Senior Civil Judge and JMFC, Channapattana, Ramanagar and is set aside.

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The matter is remitted to the First Appellate Court to consider the appeal afresh

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NC: 2023:KHC:38901 RSA No. 882 of 2013

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along with an application for production of additional documents filed by the defendant and pass appropriate judgment, in accordance with law.

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The parties are directed to appear before the First Appellate Court on 18.12.2013 without awaiting any further notice.

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As the appeal is of the year 2013, the First Appellate Court is directed to dispose of the appeal within period of one year from the date of receipt of copy of this judgment.

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Office is directed to transmit the records to the First Appellate Court, forthwith.

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The First Appellate Court shall dispose of the appeal independently without being influenced by any observation made by this Court in this judgment.

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All the contentions of the parties are kept open.

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Sd/JUDGE

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SSB

Mari Gowda v. Y B Nagaraju

Case brief

What is this about?

What did the court decide?

Mari Gowda v. Y B Nagaraju

Case brief

What is this about?

What did the court decide?

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