Allowed

Sri B Siddappa v. Sri Bandhari Siddappa

Karnataka HC24 Sept 2024RSA/1066/2013

Case brief

AI extract

What is this about?

This bench allowed a regular second appeal declaring that courts below erred in dismissing an appeal without considering additional evidence regarding a grant certificate under CPC Order 41 Rule 31. The appeal is restored for reconsideration on merits.

What did the court decide?

Regular Second Appeal allowed; Judgment dated 15.09.2007 set aside; Appeal restored to First Appellate Court. Direction to reconsider application for additional evidence under CPC Order 41 Rule 27 and

Sri B Siddappa Vs Sri Bandhari Siddappa — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:39605 RSA No. 1066 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1066 OF 2013 (DEC/INJ)

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BETWEEN:

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SRI. B. SIDDAPPA, S/O BASAPPA, AGED ABOUT 63 YEARS, R/O. KARANAGHATTA VILLAGE, AJJAMPURA HOBLI, TARIKERE TALUK - 577 228.

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…APPELLANT

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(BY SRI. KALYAN BASAVARAJ, ADVOCATE)

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AND:

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SRI. BANDHARI SIDDAPPA, S/O LATE SIDDALINGAPPA, SINCE DEAD BY HIS LRS.

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SMT. GANGAMMA, W/O. BHANDHARI SIDDAPPA, AGED ABOUT 66 YEARS,

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SRI. CHANDRAPPA, AGED ABOUT 41 YEARS, S/O. BANDHARI SIDDAPPA, AGRICULTURIST, BOTH ARE R/O. HUNASAGHATTA

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POST, TARIKERE TALUK - 577 228.

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…RESPONDENTS

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(BY SRI. G.S. BHAT & ASSTS BY C. SADA SHIVA, ADVOCATE FOR R1 AND R2)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 15.9.2012 PASSED IN R.A.NO.23/2007 ON THE FILE OF SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 4.4.2007 PASSED IN OS.NO.110/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND ADDITIONAL JMFC, TARIKERE.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 15.09.2012, passed in RA.No.23/2007 by the Senior Civil Judge and Principal JMFC, Tarikere and judgment and decree dated 04.04.2007 passed in O.S.No.110/2004 by the learned Civil Judge (Junior Division) and Additional JMFC, Tarikere.

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For convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff, and the respondents are the defendants.

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The brief facts giving rise to the filing of this appeal are as follows:

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Respondents are the LR's of the original defendants.

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The plaintiff filed the suit for declaration and permanent injunction regarding property bearing Sy.No.80/2P measuring 4 acres situated at Karanaghatta Village, Ajjampura Hobli, Tarikere Taluk. It is contended that the said land was granted to him by the Government, and its four other brothers were also granted 4 acres of land each in Sy.No.80/2. In furtherness to the grant made in favour of the plaintiff, khatha stands mutated in the name of the plaintiff and his name is found in the revenue records as khatedar in respect of the suit land. It is contended that the defendant, claims to be the owner of the property adjacent to the plaintiff's property, entered appearance and started interfering with the peaceful possession. Hence, the plaint. Therefore, the plaintiff filed a suit to declare title and permanent injunction.

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The defendants filed a written statement denying the averments made in the plaint and contended that the suit schedule property was granted in favour of the plaintiff. The defendants contended that the government granted 3 acres of land in Sy.No.80/2 vide Saguvali Chit dated 27.02.1980, and he has paid the government the upset price for the said grant. It is contended that he has filed the petition before the Assistant Commissioner, Tarikere to rectify the survey numbers wrongly entered in the RTC extracts regarding land granted to him. The Assistant Commissioner has allowed the petition and ordered the rectification of the survey number of the land from 78/2 to 80/2. It is contended that the boundaries shown in the plaint are incorrect, and the plaintiff is not in possession of the suit schedule property at any point in time and prayed to dismiss the suit.

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The Trial Court based on the pleadings of the

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parties, framed the following issues:

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i. “Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?

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ii. Whether the plaintiff proves the interference made by the defendant over the schedule property?

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iii. Whether the defendant proves that this court has no pecuniary jurisdiction to try the suit?

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iv. Whether the plaintiff is entitled for the reliefs sought for?

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v. What decree or order?”

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Plaintiff, to establish his case, examined himself

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as PW.1 and got marked 11 documents as Ex.P.1 to Ex.P.11. In rebuttal, the defendant examined himself as DW.1 and got marked 10 documents as Ex.D.1 to Ex.D.10. The trial Court after recording the evidence, hearing both sides and on assessment of the oral and documentary evidence, answered issue Nos.1 to 4 in the negative and issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 04.04.2007. The plaintiff aggrieved by the judgment and decree passed in

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O.S.No.110/2004 preferred appeal in RA.No.23/2007 on

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the file of Senior Civil Judge and Principal JMFC, Tarikere. The Appellate Court framed the following points for consideration:

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i. “Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?

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ii. Whether the plaintiff proves the interference made by the defendant over the schedule property?

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iii. Whether the defendant proves that this court has no pecuniary jurisdiction to try the suit?

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iv. Whether the plaintiff is entitled for the reliefs sought for?

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v. What decree or order?”

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The appellate Court on assessment of oral and

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documentary evidence, answered point Nos.1 and 2 in the negative and point No.3 as per the final order. The appeal filed by the plaintiff was dismissed and the judgment and

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decree passed by the Trial Court was confirmed vide judgment dated 15.09.2012. The plaintiff, aggrieved by

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the impugned judgments passed by the courts below, filed

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this Regular Second Appeal.

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Heard learned counsel for the plaintiffs and learned counsel for the LR's of defendants.

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Learned counsel for the plaintiffs submits that during the pendency of the first appeal, the plaintiffs have filed an application for the production of additional evidence and produced a copy of the grant certificate, mutation order affected in the name of the plaintiffs. The Appellate Court, without assigning any reasons, rejected the application for production of additional evidence. He also further submits that though, the plaintiff has examined himself as PW.1 and produced documents. Defendant examined himself as DW.1 and produced the documents, still, the trial Court has not discussed the oral evidence of PW.1 or DW.1. He submitted that the first Appellate Court has not properly framed the points for consideration and not answered each issue framed by the trial Court and further submits that the said proposed

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documents produced by the plaintiffs goes to the root of the case. He submits that the trial Court dismissed the suit of the plaintiff solely on the ground that the plaintiffs have not produced grant certificate and revenue records. The Appellate Court allowed the application for the production of additional evidence. He further submits that the

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judgment passed by the Appellate Court is not in conformity with Order XLI Rule 31 of CPC and, furtherance to his arguments, has placed reliance on the judgment of the Co-ordinate Bench of this Court in the case of BANGARAPPA Vs. RUDRAPPA AND ANOTHER reported in ILR 2012 KAR 1020 and further placing the reliance on the judgment of the Hon'ble Apex Court in the case of

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UTTARADI MUTT V. RAGHAVENDRA SWAMY MUTT reported in AIR 2018 SC 4796 . Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the defendants

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submits that the Courts below have rightly passed the impugned judgment. He submits that the plaintiff has not

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produced any records to substantiate his case that the suit land was granted in favour of the plaintiffs. He further submits that the plaintiffs ought to have produced the additional evidence before the trial Court so as to provide sufficient opportunity, still, the plaintiff has not produced the additional evidence before the trial Court and further, the plaintiff has not fulfilled the requirements of Order XLI Rule 27 of CPC. Hence, on these grounds, he prays to dismiss the appeal.

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This Court vide order dated 22.06.2016, admitted the appeal to consider the following substantial question of law, which reads as under:-

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"1. Were the Courts below justified in dismissing the suit for declaration and permanent injunction, when the plaintiff claims his right based on the Grant Certificate No.NCR51/81-82?

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2. Were the Courts below justified in dismissing the suit of the plaintiff without considering the Grant Certificate and the additional evidence produced along with application filed under Order 41 Rule 27 of Code of Civil Procedure?.

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3. Were the Courts below justified in rejecting the application filed under Order 41 Rule 27 of Code of Civil Procedure only on the ground that there was no diligence on the part of the appellant when the material documents disclose that there was a grant in favour of the plaintiff?."

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It is the case of the plaintiff, the suit schedule property was granted in favour of the plaintiff and by virtue of grant order, the plaintiff came in possession of the suit schedule property. To substantiate his case, the plaintiff examined himself as PW.1 and produced the documents as per Exs.P.1 to P.4, which are the RTC extracts. Exs.P.5 to P.6 the mutation register extract. Exs.P.7 and P.8 RTC extract. Ex.P.9 is the record of rights, Ex.P.10 is the index of lands, and Ex.P.11 is the certified copy of the order passed by the Assistant Commissioner. In rebuttal, the defendant was examined as DW.1. He reiterated the written statement averments in the examination in chief and deposed that the said land was granted in favour of the defendant under the Saguvali Chit, and he has produced the original Saguvali Chit

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marked as Ex.D.1, Ex.D.2, the sketch, Ex.D.3 is the mutation register extract, Exs.P.4 to P.6 are the RTC extracts, Exs.P.7 and P.8 are the Kandayam receipts, Ex.D.9 is the receipt patta and Ex.D.10 is the Hiduvali certificate.

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From the perusal of the entire evidence on record, though, the plaintiff has filed a suit for declaration, but the plaintiff has not produced the grant certificate in respect of the suit land, which was alleged to have been granted in favour of the plaintiff. The trial court recorded its findings that the plaintiff has not produced grant certificate or revenue records to establish that, he is the owner of the suit schedule property and dismissed the suit. During the pendency of the appeal, the plaintiff filed an application for the production of additional evidence in support of the application. The plaintiff has produced the copy of Saguvalli Chit, regularised grant certificate, land holding certificate, rough sketch, mutation register extract and RTC register extract. Though, the plaintiff has

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produced the said documents during the pendency of the appeal, but the said application was opposed by the defendant by filing the objection. From the perusal of the judgment passed by the Appellate Court, the Appellate Court has not assigned any reason for rejecting the application for the production of additional evidence. The Appellate Court has recorded its finding that the Court can pronounce the judgment on the material available on record without considering, the additional evidence sought to be produced by the plaintiff.

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From perusal of the judgment passed by the trial Court, the trial Court has dismissed the suit solely on the ground that the plaintiff has not produced the grant certificate and revenue records. The records produced by the plaintiff, the Appellate Court could consider the documents sought to be produced by the plaintiff. The Appellate Court has committed an error in dismissing the application filed by the plaintiff for the production of additional evidence. If the said documents are allowed to

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produce by the Appellate Court, the Appellate Court could pass the judgment based on the proposed additional documents. Further, the Appellate Court has not framed proper points for consideration as contemplated under Order XLI Rule 31 of CPC and further, that the Appellate Court has not discussed the oral evidence of PW.1 and DW.1 except reproducing the observations of the trial Court. The Appellate Court has not applied its mind while assigning the reasons. The said judgment passed by the Appellate Court is contrary to order 41 Rule 31 of CPC. Hence, without expressing any opinion on the merits of the case, the substantial questions are taken together for common discussion in order to avoid the repetition of facts. In view of the above discussion, the substantial question Nos.1 to 3 are answered in negative Accordingly,

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I proceed to pass the following :

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ORDER

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1. The appeal is allowed .

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The judgment dated 15.09.2007 passed in RA.No.23/2007 passed by the learned Senior Civil Judge and Principle JMFC, Tarikere, is set aside.

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Appeal is restored.

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The Appellate Court is directed to reconsider the application to produce additional evidence and pass judgment in conformity under Order 41 Rule 31 of the CPC.

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