Partly allowed

Mrs. Dolores L. a. Nazareth v. B. Raju

Karnataka HC28 Nov 2024MSA/1/2021

Case brief

AI extract

What is this about?

High Court in miscellaneous second appeal allowed the appeal, set aside the First Appellate Court order remanding the case for fresh disposal. Court held remand was arbitrary. Directed First Appellate Court to decide IA for surveyor appointment and dispose of appeal on merits within six months.

What did the court decide?

Order dated 03.11.2020 set aside. First Appellate Court directed to decide IA No.X, appreciate existing evidence, and dispose of appeal on merits within six months from 06.01.2025.

Mrs. Dolores L. a. Nazareth Vs B. Raju — Partition | Karnataka HC (2024)

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NC: 2024:KHC:48831 MSA No.1 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO.1 OF 2021 (RO)

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BETWEEN:

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MRS. DOLORES L. A. NAZARETH, W/O. ELIAS DENIS NAZARETH, AGED ABOUT 78 YEARS, R/O. ASSUMPTHA, SHIVABAGH, 5^TH CROSS ROAD, KADRI, MANGALURU - 575 002.

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DR. LONA JASIMNE GOMES, W/O. RONALD GERALD GOMES, AGED ABOUT 51 YEARS, SOHAR HOSPITAL, POST BOX 786, SOHAR POSTAL CODE 311, SULTANATE OF OMAN.

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Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA

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KENNEDY HECTOR JEROME NAZARETH, S/O. ELIAS DENIS NAZARETH, AGED ABOUT 50 YEARS, GLOBE LINK WEST STAR SHIPPING LLC, P.O. BOX 6027, DUBAI, UNITED ARAB EMIRATES.

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DESMOND SYDNEY NAZARETH, S/O. ELIAS DENIS NAZARETH, AGED ABOUT 48 YEARS, EMPLOYED AT BENGALURU, AND R/AT NO.3, MYSTICAL ROSE, NEAR ST. VINCENT PALLOTTI SCHOOL, KALYANANAGAR POST, BABUSAPALYA, BENGALURU - 560 043.

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APPELLANTS 2 TO 4 REPRESENTED BY THEIR

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NC: 2024:KHC:48831 MSA No.1 of 2021

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GPA HOLDER APPELLANT NO.1, MRS. DOLORES L.A. NAZARETH.

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…APPELLANTS

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(BY SRI. VISHWAJITH RAI M., ADVOCATE)

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AND:

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B. RAJU, S/O. LATE NARASAPPA, AGED ABOUT 53 YEARS,

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B. NAGESH, S/O. LATE NARASAPPA, AGED ABOUT 58 YEARS,

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BOTH ARE RESIDING AT NEAR ANANTHAPADMANABHA TEMPLE, KUDUPU POST AND VILLAGE, MANGALURU TALUK - 575 028.

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SHASHIKALA, W/O. B. RAGHAVA, AGED ABOUT 64 YEARS,

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NAGESH, S/O. B. RAGHAVA, AGED ABOUT 45 YEARS,

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CHITRA, D/O. B. RAGHAVA, AGED ABOUT 41 YEARS,

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RESPONDENTS 3 TO 5 ARE R/O. KOTTARA CHOWKI, URWA STORE, ASHOKANAGAR, MANGALURU - 575 006.

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…RESPONDENTS

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(BY SRI. ABHISHEK MARLA ADVOCATE FOR R1 AND R2; R3, R4 & R5 ARE SERVED AND UNREPRESENTED)

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NC: 2024:KHC:48831 MSA No.1 of 2021

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THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER ORDER XLIII RULE 1(U) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.11.2020 PASSED IN R.A.NO.65/2017 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM., MANGALURU D.K. ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.03.2017 PASSED IN O.S.NO.418/2012 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC., MANGALURU D.K., PARTLY DECREEING THE SUIT FOR DECLARATION THE APPELLATE COURT REMANDED BACK THE MATTER TO THE TRIAL COURT FOR FRESH DISPOSAL AS PER LAW.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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Though the matter is listed for admission, but with consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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This Miscellaneous Second Appeal filed by the appellants/plaintiffs calling in question the order dated 03.11.2020 passed in R.A.No.65/2017 on the file of II Additional Senior Civil Judge and CJM, Mangaluru, D.K. (hereinafter referred to as ‘the First Appellate Court’), Which reversed the judgment and decree dated 03.03.2017 passed in O.S.No.418/2012 on the file of I Additional Civil Judge and

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JMFC, Mangaluru, D.K. (hereinafter referred to as ‘the Trial Court’).

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For the sake of convenience and easy reference,

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the parties are referred to as per their rankings before the Trial Court.

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The plaintiffs have filed the suit for declaration

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that the plaintiffs are owners of the plaint schedule property and for consequential relief by directing defendant Nos.1 and 2 or such of other defendants to surrender vacant possession of the schedule property to the plaintiffs. Further sought declaration that the registered sale deed dated 23.11.2004 is void, as it was fraudulently executed by the defendants and is not enforceable in law and not binding on the plaintiffs to cancel the said document and consequential relief of injunction.

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It is the case of the plaintiffs that one Sanjeev Baliga was owner of the land to the extent of 03.52 acres and he has sold the said land to one B. Raghava, who is husband of defendant No.3 and father of defendant Nos.4

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and 5 through registered sale deed dated 14.09.1970 (Ex.P-6). The said B. Raghava in-turn has sold the said land to an extent of 03.52 acres and another bit of land to an extent of 1.01 acres to Elias Denis Nazareth, who is father of plaintiff Nos.2 to 4 and husband of plaintiff No.1 through registered sale deed dated 25.10.1980 (Ex.P-8). Thus, the Elias Denis Nazareth has become owner of the land to an extent of 03.52 acres and the same is inherited to plaintiff No.1 (wife of Elias Denis Narareth) and plaintiff Nos.2 to 4 (children of Elias Denis Nazareth).

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It is the case of plaintiffs that defendant Nos.3 to 5 did not have any right, title or interest over the said land to an extent of 0.06 cents so as to sell the land to defendant Nos.1 and 2 after death of B. Raghava. Therefore, with these facts in detail pleaded in the plaint, the plaintiffs have filed suit for the relief claimed above stated.

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Defendant Nos.1 and 2 have appeared through

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their counsels and contested the suit. Defendant No.1 has filed written statement and the same is adopted by

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NC: 2024:KHC:48831 MSA No.1 of 2021

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defendant No.2. The sum and substance of the defendants case is that as per Ex.D-68 (certified copy of Adangal Registry) originally the extent of land is shown as 03.58 acres therefore, defendant Nos.3 to 5 have sold 0.06 cents of land to defendant Nos.1 and 2, hence, by claiming this bit of land sold to defendant Nos.1 and 2 as per Ex.P-16 - registered sale deed dated 23.11.2004 is other than the land to an extent of 03.52 acres. Therefore, pray to dismiss the suit.

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The Trial Court after receiving the evidence from both the sides and appreciating the same has decreed the suit filed by the plaintiffs and declared that the plaintiffs are owners of the suit schedule land as B. Raghava has purchased the land only to an extent of 03.52 acres and the same is sold to one Elias Denis Nazareth, who was husband of plaintiff No.1 and father of plaintiff Nos.2 to 4. Therefore, declared that the plaintiffs are owners of land to an extent of 0.06 cents.

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Being aggrieved by it, defendant Nos.1 and 2 have filed regular appeal before the First Appellate Court. The First Appellate Court has set aside the judgment and decree passed by the Trial Court and framed three additional issues and also held that rejection of interlocutory application No.X filed under Order XXVI Rule 9 of CPC for appointment of Court Commissioner is not correct. Therefore, directed the Trial Court shall appoint the competent Surveyor as Court Commissioner for making local inspection of the suit schedule property and pass order.

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The First Appellate Court has assigned reasons that the Trial Court has not framed proper issues therefore, framed three additional issues and remanded the matter to the Trial Court.

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The First Appellate Court has framed three additional issues, which are as follows:

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i. Whether, the plaintiffs prove that the legal heirs of B. Raghava does not inherited any property to sell in the suit survey number?

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NC: 2024:KHC:48831 MSA No.1 of 2021

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ii. Whether, the plaintiffs further proves that one B. Narasappa and his wife Jalaja were in permissive possession of the suit property?

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iii. Whether, defendant Nos.1 and 2 prove that they are the Bonafide purchaser of the suit property?

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The First Appellate Court by framing three

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additional issues remanded the case to the Trial Court and directed the Trial Court to consider these three additional issues and also by allowing IA No.X filed for appointment of Court Commissioner for making local inspection, hence, passed the order.

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Being aggrieved by it, the plaintiffs have preferred present Miscellaneous Second Appeal.

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Learned counsel for the appellants/plaintiffs submitted that three additional issues framed by the First Appellate Court are unnecessary and amounting to repetition of issues as already framed by the Trial Court. Further submitted that additional issue No.2 is unnecessary as it is nobody’s case regarding framing of issue No.2, therefore only on flimsy reasons, the First Appellate Court has remanded the case without appreciating the evidence on

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NC: 2024:KHC:48831 MSA No.1 of 2021

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record. Therefore, submitted that the First Appellate Court very well could have appreciated evidence on record and then come to conclusion, but without doing so only for the purpose of remanding the case to the Trial Court has framed three additional issues though which are already framed in the Trial Court. Therefore, submitted that setting aside the judgment and decree passed by the Trial Court and remanding the case to the Trial Court is nothing but frivolous exercise. Hence, prays to allow the appeal by setting aside the order passed by the First Appeal Court by confirming the judgment and decree passed by the Trial Court.

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On the other hand, learned counsel for the respondents/defendant Nos.1 and 2 submitted that originally the extent of land was 03.58 acres. The plaintiffs have purchased the land to the extent of 03.52 acres from defendant Nos.3 to 5, remaining 0.06 cents of land was not sold to the plaintiffs that is remained with defendant Nos.3 to 5 and defendant Nos.3 to 5 have placed reliance on Ex.D-68 (Adangal Registry), Exs.D-69 to D-73 (Manual RTCs’). Therefore, defendant Nos.3 to 5 have sold 0.06 cents of land

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NC: 2024:KHC:48831 MSA No.1 of 2021

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to defendant Nos.1 and 2 as per sale deed (Ex.P-16) dated 23.11.2004. Therefore, prays to dismiss the appeal.

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Upon considering the pleadings and evidence on record, the defendants have not disputed that B. Raghava has sold the land to an extent of 03.52 acres of land to one Elias Denis Nazareth (father of plaintiff Nos.2 to 4 and husband of plaintiff No.1). Ex.P-6 is the sale deed dated 14.09.1970 which discloses that one Sanjeev Baliga was the vendor and he sold the land to an extent of 03.52 acres to B. Raghava, who is husband of defendant No.3 and father of defendant Nos.4 and 5. Thus, by virtue of this sale deed (Ex.P-6) B. Raghava has become owner of the land to an extent of 03.52 acres only. B. Raghava in-turn has sold the said land to an extent 03.52 acres to one Elias Denis Nazareth (father of plaintiff Nos.2 to 4 and husband of plaintiff No.1) through registered sale deed dated 25.10.1980 as per Ex.P-8. When B. Raghava has purchased the land only to the extent of 03.52 acres, his legal heirs also would claim their right, title to the extent of 03.52 acres of land and not more than that. Ex.D-68 (Adangal Registry)

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may show the extent of land as 03.58 acres, but B. Raghava has acquired the right, title by virtue of sale deed as per Ex.P-6 only to the extent of 03.52 acres and his legal heirs would acquire the right and title to the extent of 03.52 acres only. Though there is remaining 0.06 cents of land, defendant Nos.3 to 5 could not sell the same because they have not acquired to that extent of land.

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It is the case of plaintiffs that the sale of land to the extent of 0.06 cents to defendant Nos.1 and 2 is within the land acquired by the father of the plaintiffs i.e., within the extent of 03.52 acres. Upon considering the facts and circumstances and evidence adduced in the Trial Court, the Trial Court has rightly appreciated the evidence on record, but the First Appellate Court has assigned reason by wrongly finding fault with the Trial Court that plaintiffs have not produced evidence. The First Appellate Court observed that except Ex.P-6 (registered sale deed dated 14.09.1970) and RTCs, no other document established their title and as such they were produced before the Court. This observation of the First Appellate Court is not correct. When the plaintiffs

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have produced the sale deed as per Exs.P-6 and P-8 of the year 1970 and 1980, then what more title documents are to be produced by the plaintiffs, is the matter to be considered. In this regard, the First Appellate Court reasonings given in the order is not correct. Furthermore, considering additional issue No.1 framed by the First Appellate Court, it is unnecessarily framed for the reason that the legal heirs of B. Raghava could get right only to the extent of 03.52 acres of land as B. Raghava has purchased the land to the extent of 03.52 acres only. Further, regarding additional issue No.2 is concerned framed by the First Appellate Court, it is nobody’s

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case that B. Narasappa and Jalaja were in permissive possession, but it is a part of the pleadings as pleaded in the written statement but this pleading is unnecessary to decide the lis. If these B. Narasappa and Jalaja were in permissive possession of the suit property, then it is the domain of plaintiffs to continue or not in possession of the property. Therefore, this additional issue No.2 is not necessary to decide the lis involved in the case. Hence, this is unnecessarily framed.

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NC: 2024:KHC:48831 MSA No.1 of 2021

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Further, considering additional issue No.3

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whether defendant Nos.1 and 2 prove that they are bonafide purchasers of the suit property, this is already framed by the

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Trial Court as issue No.2 and answered by the Trial Court. Therefore, the First Appellate Court in mechanical way without any valid reasons has framed additional issues and remanded the matter to the Trial Court, is not correct approach made by the First Appellate Court. Therefore, on this reason the order passed by the First Appellate Court is liable to be set aside.

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19. During the trial, defendant Nos.1 and 2 have filed

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IA No.X under Order XXVI Rule 9 of CPC praying for appointment of Court Commissioner for making local inspection of the suit schedule land. The said IA No.X was dismissed by the Trial Court. Defendant Nos.1 and 2 have not challenged the dismissal of IA No.X before the Appellate or Revision Court. Defendant Nos.1 and 2 while preferring the regular appeal before the First Appellate Court have also questioned the order and findings to IA No.X. Since the

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appeal is continuation of suit, in order to find out the land to the extent of 0.06 cents is coming within the extent of land whatever purchased by the plaintiffs or separate property, conducting the local inspection by the surveyor is necessary. Therefore, the matter is remanded to the First Appellate Court to pass appropriate orders on IA No.X and then dispose of the appeal by considering the evidence adduced already in the suit before the Trial Court. Therefore, it is hereby directed the First Appellate Court to give findings on the issues already framed and evidence adduced already in the suit before the Trial Court and also take appropriate decision on IA No.X after taking decision on considering IA No.X. The First Appellate Court shall have to consider the case on merits according to pleadings and evidence already adduced in the suit.

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For the reasons above stated, I proceed to pass the following:

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NC: 2024:KHC:48831 MSA No.1 of 2021

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ORDER

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i. The Miscellaneous Second Appeal is allowed .

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ii. The order dated 03.11.2020 passed in R.A.No.65/2017 on the file of II Additional Senior Civil Judge and CJM, Mangaluru, D.K., is hereby set aside.

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iii. The First Appellate Court is directed to consider IA No.X filed under Order XXVI Rule 9 of CPC and take appropriate decision and consider the legality of the property of the judgment and decree passed by the Trial Court after considering the evidence already led in the suit on merits.

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iv. The parties shall appear before the First Appellate Court on 06.01.2025 without expecting any further notice from the First Appellate Court.

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v. The First Appellate Court is directed to dispose of the appeal within six months from 06.01.2025.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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SRA

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List No.: 1 Sl No.: 27

Mrs. Dolores L. a. Nazareth v. B. Raju

Case brief

What is this about?

What did the court decide?

Mrs. Dolores L. a. Nazareth v. B. Raju

Case brief

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What did the court decide?

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