Allowed

Yallappagouda @ Yallappa v. Timmanagouda @ Timmanna

Karnataka HC18 Jul 2024RSA/100052/2014

Case brief

AI extract

What is this about?

Second appeal by defendant against confirmation of a decree of declaration of title and injunction. The First Appellate Court had ignored the defendant's application under Order 41 Rule 27 r/w Section 151 CPC to produce additional evidence. This court set aside the first appeal's judgment and remanded it for fresh adjudication.

What did the court decide?

Judgment and decree dated 30.11.2013 in RA No.121/2012 set aside; parties directed to appear before First Appellate Court on 12.09.2024; appeal and IA No.3 to be adjudicated afresh; contentions open.

Yallappagouda @ Yallappa Vs Timmanagouda @ Timmanna — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100052 OF 2014

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BETWEEN:

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YALLAPPAGOUDA ALIAS YALLAPPA SINCE DECEASED BY HIS LRS

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1(A) TULASA W/O YALLAPPGOUDA GOUDAR AGE: 70 YEARS, OCC: HOUSEHOLD, R/O MIG 2. MAHANTESH NAGAR, BELAGAVI DIST: BELAGAVI

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1(B) PRASHANT S/O YALLAPPGOUDA GOUDAR AGE: 45 YEARS, OCC: SELF EMPLOYEED R/O MIG2. MAHANTESH NAGAR, BELAGAVI. DIST. BELAGAVI.

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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1(C) POORNIMA D/O YALLAPPGOUDA GOUDAR AGE: 43 YEARS, OCC: PRIVATE SERVICE R/O 101, AJANTHA COMFORTS, GREEN GLEN LAYOUT, NEAR TO OUTER RING ROAD, BELLANDUR, BENGALURU.

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…APPELLANT (BY SRI PRASHANT HOSMANI, ADVOCATE FOR A1 (A TO C)

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AND:

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TIMMANAGOUDA @ TIMMANNA S/O GADIGEPPAGOUDA GOUDAR @ PATIL, AGE ABOUT: 69 YEARS, OCC: AGRICULTURE, R/O: HEBSUR VILLAGE, TQ: HUBLI DIST: DHARWAD. (BY SRI V.G.BHAT AND SRI S.A.PAWAR, ADVOCATES)

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…RESPONDENT

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NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.O.121/2012 DATED 30.11.2013 PASSED BY THE II ADDITIONAL SENIIOR CIVIL JUDGE, HUBBALLI, CONFIRMING THE JUDGMENT AND DECREE IN O.S.NO.1090/2010 DATED 25.09.2012 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND III JMFC, COURT, HUBBALLI.

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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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The present second appeal is filed under Section 100

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of Code of Civil Procedure¹ by defendant challenging the judgment and decree dated 30.11.2013 passed in RA No.121/2012 by the Court of II Additional Senior Civil Judge Hubli² .

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For the sake of convenience, the parties will be

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referred to as per their ranking before the Trial Court.

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The relevant facts necessary for consideration of the present appeal are that, the plaintiff filed a suit for declaration and injunction. The defendant was placed exparte before the Trial Court. The plaintiff examined himself

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as ‘First Appellate Court’

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NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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as PW.1. Ex.P.1 to Ex.P.6 were marked in evidence. The Trial Court vide its judgment and decree dated 25.09.2012 decreed the suit and passed the following order:

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“ The suit of the plaintiff is decreed with costs.

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It is hereby declared that plaintiff is the absolute owner of suit property.

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It is hereby declared that ME No.1787 dated 2510-1999 pertaining to suit property is null and void.

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The defendant is permanently restrained from causing unlawful interference in the peaceful possession and enjoyment of plaintiff over suit property by way of prohibitory injunction.

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Office is directed to send a copy of this decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of instrument contained in his books the fact of its cancellation.

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Draw decree accordingly.”

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Being aggrieved, the defendant preferred RA No.121/2012. Along with the said appeal, the defendant

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who was the appellant before the First Appellate Court filed IA No.3 in RA No.121/2012 under Order 41 Rule 27

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NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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r/w Section 151 of CPC seeking leave to produce additional documents. The plaintiff entered appearance before the First Appellate Court and contested the same. The First Appellate Court vide its judgment and decree dated 30.11.2013 dismissed the appeal and affirmed the judgment and decree passed by the Trial Court.

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Being aggrieved the present second appeal is filed. This Court vide Order dated 15.07.2024 admitted the appeal and framed the following substantial questions of law:

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i. Whether the First Appellate Court was justified in recording a finding that the appellant has produced certain documents along with the list which has not been signed and no application has been filed by the appellant when the appellant has filed I.A.No.3 on 10.12.2012 before the First Appellate Court under Order XLI Rule 27 read with Section 151 of the CPC?

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5 - NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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ii. The judgment and decree passed by the First Appellate Court is erroneous and liable to be interfered with having regard to the fact that the same has been rendered without considering I.A.No.3 filed under order XLI Rule 27 read with Section 151 of CPC by the appellant?

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Heard submissions of the learned counsel

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Sri.Prashant S. Hosmani appearing for the appellant and the learned counsel Sri.V.B. Bhat appearing for the respondent.

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It is contended on behalf of the appellant that the First Appellate Court has recorded a finding that the defendant/ appellant therein had produced certain documents along with a memo and no application was filed. It is further contended that the said finding is contrary to the material on record. Having regard to the fact that the appellant had filed IA No.3 before the First Appellate Court under Order 41 Rule 27 of CPC.

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6 - NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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It is forthcoming from the records of the First

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Appellate Court that, the appellant/ defendant had filed IA No.3/2012 under Order 41 Rule 27 r/w Section 151 of CPC on 10.12.2012. In view of the aforementioned, it is clear that the First Appellate Court without noticing the said application has erred in recording a finding that the documents have been produced along with a memo and without any application. Hence, the finding recorded by the First Appellate Court is contrary to the material available on record and liable to be interfered with.

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In view of the discussion made above, the

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substantial questions of law No.(i) is answered in the negative and No.(ii) is answered in the affirmative.

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Having regard to the aforementioned, it is just and proper that the judgment and decree passed by the First Appellate Court be set aside and a date for appearance of the parties before the First Appellate Court be ordered to enable the first appeal be adjudicated in accordance with law.

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NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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Hence, the following;

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ORDER

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i) The above appeal is allowed ;

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ii) The judgment and decree dated 30.11.2013 passed in RA No.121/2012 by the Court of II Additional Senior Civil Judge Hubli, is set aside;

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iii) Both the parties shall appear before the First Appellate Court on 12.09.2024 without the requirement of any fresh notice being issued in this regard;

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iv) Upon appearance of the parties, the First Appellate Court shall consider the appeal of the defendant along with IA No.3 filed under Order 41 Rule 27 r/w. Section 151 of CPC and adjudicate upon the same in accordance with law;

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8 - NC: 2024:KHC-D:10007 RSA No. 100052 of 2014

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v) All contentions of both the parties kept

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open;

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vi) Registry to return the records forthwith.

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Sd/JUDGE

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PJ CT:GSM List No.: 1 Sl No.: 53

Yallappagouda @ Yallappa v. Timmanagouda @ Timmanna

Case brief

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Yallappagouda @ Yallappa v. Timmanagouda @ Timmanna

Case brief

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