Allowed

Sri. Govindappa v. Sri. N H Rehman

Karnataka HC6 Aug 2024RSA/119/2018

Case brief

AI extract

What is this about?

Defendant No.1 appealed against a First Appellate Court decree granting injunction in respect of item No.2 of suit schedule property. The High Court found the First Appellate Court disposed of the plaintiff's Order 41 Rule 27 CPC application without deciding whether it was allowed or rejected. The second appeal was allowed and the matter remitted for fresh consideration.

What did the court decide?

Judgment and decree dated 13.11.2017 in R.A.No.84/2015 set aside; matter remitted to First Appellate Court for fresh consideration including I.A.4 under Order 41 Rule 27 CPC, within six months.

Sri. Govindappa Vs Sri. N H Rehman — Property and Title | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 6^TH DAY OF AUGUST, 2024

¶5

BEFORE

¶6

THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.119 OF 2018 (DEC/INJ)

¶7

BETWEEN:

¶8

SRI. GOVINDAPPA S/O VENKATESHAPPA @ KATHEPPA, AGED ABOUT 53 YEARS, R/AT NAYANAHALLI MAJARA, KOTHUR VILLAGE, BETHAMANGALA NEW TOWN, BETHAMANGALA HOBLI, BANGARPET TALUK-563116.

¶9

…APPELLANT

¶10

(BY SRI. RAGHAVENDRA RAO K., ADVOCATE)

¶11

AND:

¶12

SRI. N H REHMAN S/O LATE HYDER SAB, AGED ABOUT 68 YEARS,

¶13

Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka

¶14

DILSHAD BEGUM SINCE DECEASED REP. BY LRS. SRI. N.H. REHMAN WHO IS ALREADY ON RECORD IN THIS APPEAL AS RESPONDENT NO.1 AND RESPONDENT NOS. 2(a) TO 2(c)

¶15

2(a). AFROZE BEGUM D/O N.H. REHMAN AGED MAJOR

¶16

2(b). FIROZE BEGUM D/O N.H. REHMAN AGED MAJOR

¶17

2 - NC: 2024:KHC:31343 RSA No. 119 of 2018

¶18

2(c). FIAZ S/O N.H. REHMAN AGED MAJOR

¶19

SRI. VENKATESHAPPA S/O VENKATESHAPPA @ KATHEPPA, AGED ABOUT 55 YEARS,

¶20

SRI. MUNIYAPPA S/O VENKATESHAPPA @ KATHEPPA, AGED ABOUT 51 YEARS,

¶21

SMT. MUNILAKSHMAMMA W/O GOVINDAPPA, AGED ABOUT 48 YEARS, RESPONDENT NOS. 1, 2(a) TO 2(c), AND 3 TO 5 ARE R/OF NAYANAHALLI MAJARA, KOTHUR VILLAGE, BETHAMANGALA NEW TOWN, BETHAMANGALA HOBLI, BANGARPET TALUK-563116.

¶22

CHIKKA VENKATASWAMI BOVI SINCE DEAD BY HIS LRS.,

¶23

SRI. VENKATESHAPPA, S/O LATE CHIKKA VENKATASWAMI BOVI, AGED ABOUT 58 YEARS, R/OF NAYANAHALLI MAJARA, KOTHUR VILLAGE, BETHAMANGALA HOBLI, BANGARPET TALUK-563116.

¶24

SRI. RAJAPPA S/O VENKATESHAPPA, AGED ABOUT 28 YEARS, R/AT NAYANAHALLI MAJARA, KOTHUR VILLAGE, BETHAMANGALA NEW TOWN, BETHAMANGALA HOBLI, BANGARPET TALUK-563116.

¶25

¶26

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶27

SRI. A.M. LAKSHMINARAYANA S/O SRI MIDDEMANE MUNIYAPPA, AGED ABOUT 67 YEARS, R/OF BETHAMANGALA NEW TOWN, BETHAMANGALA HOBLI, BANGARPET TALUK-563116.

¶28

…RESPONDENTS

¶29

(BY SRI. Y.R. SADASIVA REDDY, SENIOR COUNSEL FOR SRI. RAHUL S. REDDY, ADVOCATE FOR R1 AND LRS OF R2 V/O DATED 09.08.2018 NOTICE TO R5 TO R8 IS DISPENSED WITH; V/O DATED 19.12.2019 NOTICE TO 3 & 4 IS DISPENSED WITH)

¶30

¶31

THIS REGULAR SECOND APPEAL IS FILED UNDER

¶32

SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 13.11.2017 PASSED IN R.A. NO.84/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, K.G.F, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 15.10.2015 PASSED IN O.S. NO.551/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, K.G.F.

¶33

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

¶34

¶35

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶36

CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

¶37

ORAL JUDGMENT

¶38

This appeal is preferred by defendant No.1 challenging the Judgment and Decree dated 13.11.2017 in R.A.No.84/2015 on the file of the Additional Senior Civil Judge and JMFC at KGF allowing the appeal and as such, setting aside the Judgment and Decree dated 15.10.2015 in O.S.No.551/2010 on the file of Principal Civil Judge and JMFC, KGF, decreeing the suit in part.

¶39

For the sake of convenience, parties are referred with reference to their rank before the Trial Court.

¶40

It is the case of the plaintiffs that plaintiff No.1 is the owner and in possession of the suit schedule property consisting of item Nos.1 and 2. It is the case of the plaintiffs that, plaintiff No.1 and defendant No.7 have sold item No.2 of the suit schedule property in favour of the plaintiff No.2 as per registered Sale Deed dated 12.11.2009 and as such, the plaintiff No.2 became the owner of item No.2 of the suit

¶41

5 - NC: 2024:KHC:31343 RSA No. 119 of 2018

¶42

schedule property. It is also stated by the plaintiffs that pursuant to the execution of the registered Sale Deed referred to above, the mutation in respect of the land in question was transferred in favour of the plaintiffs. It is stated that plaintiffs are in possession of the schedule property and is in cultivation of the land in question. However, the defendants without any semblance of right, title or interest over the schedule property have interfered with the peaceful possession of the schedule property of the plaintiffs and as such the plaintiffs filed suit in O.S.No.551/2010 seeking relief of permanent injunction restraining the defendants from interfering with the suit schedule property.

¶43

On service of notice, defendant Nos.2 to 7 were unrepresented and accordingly, they have been placed exparte. Defendant No.1 has filed detailed written statement denying the averments made in the plaint. It is the specific case of defendant No.1 with regard to item No.2 of the schedule property that the land described in item No.2 is not measuring 2 acres 20 guntas but the measurement of land bearing Sy. No.39 of Nayanahalli Majara, Kothur Village, Bethamangala

¶44

¶45

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶46

Hobli, Bangarpet Taluk is four acres. It is also stated by defendant No.1 that the land to an extent of 1 acre in Sy. No.28 is a bagarhukum saguvali land and defendant No.1 is in cultivation of the said land and accordingly, it is the case of defendant No.1 that plaintiffs have illegally interfered with the possession of the defendant No.1 in respect of the subject land to illegally knock off 1 acre of land in question, accordingly, defendant No.1 sought for dismissal of the suit.

¶47

The Trial Court based on the pleadings on record, framed issues for its consideration. In order to establish their case, plaintiffs have examined two witnesses as P.W.1 and P.W.2 and got marked nine documents as Exs.P1 to P9. The defendants have examined three witnesses and produced 18 documents and same were marked as Exs.D1 to D18. The Trial Court, after considering the material on record, by its Judgment and Decree dated 15.10.2015, allowed the suit in part holding that the plaintiff is in possession of item No.1 of the suit schedule property and thereby restrained defendants from interfering with item No.1 of the schedule property. In so far as relief for temporary injunction in respect of item No.2 of the schedule

¶48

¶49

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶50

property is concerned, the Trial Court dismissed the suit. Feeling aggrieved by the same, with regard to dismissal of the suit in respect of the item No.2 of the schedule property is concerned, plaintiffs have filed R.A.No.84/2015 on the file of the First Appellate Court. The defendants entered appearance and resisted the same. The First Appellate Court, after reappreciating the material on record, by its Judgment and Decree dated 13.11.2017, allowed the appeal and as such, set aside the Judgment and Decree dated 15.10.2015 in O.S. No.551/2010 in respect of the item No.2 schedule property. Feeling aggrieved by the same, defendant No.1 has presented this appeal.

¶51

I have heard Sri. Raghavendra Rao K., learned counsel for the appellant and learned Senior Counsel Sri.Y.R. Sadashiva Reddy appearing on behalf of Sri. Rahul S. Reddy, learned counsel for respondent No.1 and legal representatives of deceased respondent No.2.

¶52

This Court, by order dated 08.01.2020 has formulated the following substantial questions of law:

¶53

¶54

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶55

"1. Whether the First Appellate Court was justified in allowing the application filed by the plaintiffs under Order 41 Rule 27 of CPC without following the procedure laid down under Order 41 Rule 27 and Rule 28 of CPC?

¶56

2. Whether the First Appellate Court was justified in accepting the contention of the plaintiff that the Kharab purportedly attached to the main property could be deemed to have been validly transferred, without even examining whether the Kharab was 'A' or 'B' Kharab and whether it was transferable?

¶57

3. Whether the First Appellate Court erred in reversing the judgment of the trial court while admittedly the plaintiffs sought to make out a new case by producing additional documents and therefore the plaintiffs were permitted to make out a new case which was neither pleaded nor proved before the trial court?

¶58

4. Whether the First Appellate Court was justified in granting injunctive relief in respect of part of item of No.2 of the suit schedule property (22 guntas of kharab land) even though plaintiffs failed to produce any evidence to prove possession over the disputed portion of item No.2?"

¶59

Sri. Raghavendra Rao, learned counsel appearing for the appellant submitted that the present appeal was dismissed on merits by this Court, by Order dated 10.03.2023 and thereafter the defendant no.1 filed R.P. No.177/2023 and the review

¶60

¶61

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶62

petition came to be allowed and as such, the order dated 10.03.2023 was recalled. In this regard, he invited the attention of the Court to the application filed by the plaintiff No.1 in R.A. No.84/2015 under Order 41 Rule 27 of CPC as well as the finding recorded by this Court while passing the order dated 04.09.2023 in R.P. No.177/2023. In this regard, the principal argument advanced by Sri. Raghavendra Rao is that the First Appellate Court ought to have given a finding relating to the application filed by the plaintiff No.1 under Order 41 Rule 27 of CPC and in the absence of the same, the First Appellate Court ought not to have passed the impugned Judgment and Decree. Accordingly, learned counsel sought for interference of this Court.

¶63

Per contra, Sri. Y.R. Sadasiva Reddy, learned Senior Counsel appearing on behalf of respondent No.1/plaintiff invited the attention of the Court to the finding recorded by the First Appellate Court, particularly with regard to para No.39 and submitted that even in the absence of those documents referred to in the application filed by the plaintiff under Order 41 Rule 27 of CPC, the First Appellate Court has passed the

¶64

10 - NC: 2024:KHC:31343 RSA No. 119 of 2018

¶65

impugned Judgment and Decree, looking into the other documents produced by the plaintiffs as well as the defendants thereunder and therefore, learned Senior Counsel submitted that allowing or rejecting the application would not have any bearing on the Judgment and Decree that has been passed by the First Appellate Court and accordingly, sought for dismissal of the appeal.

¶66

Having taken note of the submissions made by the learned counsel appearing for the parties, the substantial questions of law referred to above, this Court is of the opinion that it is relevant to consider whether the First Appellate Court was justified in ignoring the application filed by the plaintiff under Order 41 Rule 27 of CPC?

¶67

In this regard, I have carefully examined the finding recorded by this Court in R.P. No.177/2023. At para Nos.10 and 11 of the Order dated 04.09.2023 in R.P. No.177/2023 it reads as under:

¶68

"10. Having perused these paragraphs No.28 to 31, though an observation is made by the First Appellate Court in paragraph No. 39 that those documents which

¶69

11 -

¶70

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶71

have been filed along with an application filed under Order 41 Rule 27 and of CPC other documents are enough to prove that plaintiff has proved their case, but in detail discussed in paragraphs No.28 to 31 with regard to the kharab land is concerned and hence there is a force in the contention of the counsel appearing for the review petitioner counsel that before giving such finding, the First Appellant Court taken note of the additional documents which have been produced before the First Appellate Court i.e. phody document and also the Akar bandh document and this has not been discussed in the judgment of this Court in R.S.A.No.119/2018 vide order dated 10.03.2023 and no doubt this Court while answering substantive question of law in respect of item No.2 is concerned, in paragraph No. 18 taken note of the fact that, though the document are produced, the First Appellate Court has not been allowed the I.A. and also disposed of by giving the reasoning in paragraph No.39 under such application, only sought permission to produce the certified copy of Tippany and Karnataka Revision Settlement Akar Bandh. But those documents are not considered by the First Appellate Court in paragraphs No. 28 to 31 and the same has been discussed taking into note of the phody as well as the Akar Bandh, in order to comes to a conclusion of the possession of the respondents to the extent of 22 guntas of karab land and when such finding is given and though an observation is made in paragraph No.39 that in the absence of those documents also Court can comes to the conclusion that the plaintiff has proved the same and the same has been extracted by this Court in paragraph No. 18 and having

¶72

12 -

¶73

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶74

perused the entire judgment of this Court and paragraphs No.28 to 31 regarding discussion made by the First Appellate Court with regard to the additional documents which have been produced and the same is not discussed in the order. Hence, it requires to review the order and there is a apparent mistake on record in not considering paragraphs No.28 to 31 while passing the order and hence, I am of the opinion that review petitioner has made out the ground to review the order, since mistake apparent on record is not considering the discussion made by the First Appellate Court in paragraphs No. 28 to 31.

¶75

11. The counsel appearing for the respondents would vehemently contend that no single piece of material is placed before the Court by the review petitioner with regard to dispossession is concerned except claiming unauthorized possession. When this Court found the material with regard to the discussion made by the First Appellate Court with regard to the additional document is concerned, and this Court also while admitting the second appeal framed the issue with regard to discussion made in respect of the additional documents and no doubt the First Appellate Court while disposing of the regular appeal made an observation that I.A. is disposed of and hence, the same has to be considered in RSA by recalling the order of this Court and hence, Review Petition is allowed and the order dated 10.03.2023 is hereby reviewed and matter has to be considered afresh in keeping the contentions urged by the review petitioner also looking into the paragraphs No.28 to 31 while considering the

¶76

13 -

¶77

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶78

matter on merits and hence, I answer the points as affirmative."

¶79

Though this Court dismissed the appeal on merits on 10.03.2023, however reviewed the said order on the sole ground that the First Appellate Court has not considered the application filed by the plaintiff, at para 28 to 31 of the said Judgment. In that view of the matter, I am of the view that, when the First Appellate Court has not considered the application, in this regard, this Court in the case of SHANTHAVEERAPPA Vs. K.N.JANARDHANACHARI reported

¶80

in ILR 2007 KAR 1127 . This Court has held that whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred or any other subordinate Court, to take such evidence and send it to the Appellate Court as required under Rule 28 CPC.

¶81

At this juncture, it is also relevant to follow the declaration of law made by the Hon'ble Supreme Court in the case of AKHILESH SINGH ALIAS AKHILESHWAR SINGH

¶82

Vs. LAL BABU SINGH AND OTHERS reported in ( 2018) 4

¶83

14 -

¶84

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶85

SCC 659 at paragraph Nos. 12 to 14 therein, which read as follows:

¶86

"12. Order 41 Rule 27 CPC, which deals with the provision of additional evidence in appellate court, provides for the grounds and circumstances on which the appellate court may allow such evidence or documents or witnesses to be examined. Order 41 Rule 27 sub-rule (2) further provides that wherever additional evidence is allowed to be produced by an appellate court, the court shall record a reason for its admission. Order 41 Rule 27 is silent as to the procedure to be adopted by the High Court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the appellate court to grant opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 27.

¶87

13. One provision, which is part of Order 41, which also needs to be noted is Order 41 Rule 2, which is as follows:

¶88

“ 2. Grounds which may be taken in appeal .— The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the appellate court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the court under this rule:

¶89

15 -

¶90

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶91

Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.”

¶92

14. Order 41 Rule 2 provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order 41 Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When the appellate court admits the additional evidence under Order 41 Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by the present appellant and his other cosharers and what was relied on before the High Court was that the appellant admitted in the sale deeds that the partition has taken place in the family. The main issue in the first appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds has taken place in the family is correct or not. The additional evidence which was admitted has been

¶93

16 -

¶94

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶95

relied on by the High Court while allowing the appeal. It was in the interest of justice that the High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the first appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied on by the defendants. The mere fact that no counteraffidavit was filed to the IAs was not decisive. Since IAs having not been admitted, occasion for counter-affidavit did not arise at any earlier point of time. The High Court on the same day i.e. 8-3-2017 has allowed [Lal Babu v. Akhilesh Singh, 2017 SCC OnLine Pat 309] the IAs as well as the first appeal. The fact that the contesting respondents to the first appeal, who are the appellant before us were not represented at the time of hearing of the first appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal."

¶96

Taking into consideration the declaration of law made by this Court as well as the Hon'ble Supreme Court as above, I have carefully examined the finding recorded by the First Appellate Court with regard to I.A.4 filed by the plaintiffs under Order 41 Rule 27 of CPC. In the operative portion, the First Appellate Court has stated that the said application is disposed of. However, in the discussion at para 39 would indicate that even in the absence of said application, the plaintiffs have proved their case. However the outcome of the Judgment

¶97

17 -

¶98

NC: 2024:KHC:31343 RSA No. 119 of 2018

¶99

rendered by the First Appellate Court would not say whether the said application is considered and allowed or considered and rejected. In that view of the matter, I find force in the submission made by the learned counsel for the appellant.

¶100

It is also submitted by Sri. Raghavendra Rao K., learned counsel for the appellant, that the grievance of the defendant No.1 before this Court is only in respect of the item No.2 of the schedule property and therefore, I am of the view that, the matter be remitted to the First Appellate Court for fresh consideration with regard to the finding to be recorded by considering the application in I.A.4 filed by the appellant/ plaintiff therein under Order 41 Rule 27 of CPC, only with regard to item No.2 of the suit schedule property and dispose of the same at the earliest.

¶101

In the result, the substantial question of law framed by this Court referred to above, favours defendant No.1/ appellant herein and accordingly, the matter is required to be remitted to the First Appellate Court.

¶102

Hence, the following:

¶103

18 - NC: 2024:KHC:31343 RSA No. 119 of 2018

¶104

ORDER

¶105

(i) The Regular Second Appeal is allowed.

¶106

(ii) The Judgment and Decree dated 13.11.2017 in R.A.

¶107

No.84/2015 on the file of the Addl. Senior Civil Judge and JMFC at KGF is set aside and the matter is remitted to the First

¶108

Appellate Court to reconsider the issue afresh, after affording fair opportunity of hearing to both side parties on merits as well as on the application filed by the plaintiff / appellant in I.A.4 under Order 41 Rule 27 of CPC, and pass appropriate orders in accordance with law, within outer limit of six months from the date of receipt of certified copy of this order.

¶109

(iii) Since the parties herein are represented through

¶110

their learned counsel and to expedite the hearing before the First Appellate Court, parties are directed to appear before the First Appellate Court on 10.09.2024 at 11.00 a.m. and on their appearance, the First Appellate Court is directed to dispose of the appeal on merits in terms of the observations made above.

¶111

SD/(E.S.INDIRESH) JUDGE

¶112

sac List No.: 1 Sl No.: 46

Sri. Govindappa v. Sri. N H Rehman

Case brief

What is this about?

What did the court decide?

Sri. Govindappa v. Sri. N H Rehman

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Talavar Duragappa Vs Sri D Jayappa

The State of Karnataka Vs Surendra Maniyani

Barikara Nagappa Vs Hosuramma

Sri Narayanaswamy Vs Smt. Rajamma

Shri K S Shivaprakash Vs Shri K.S. Veerabhadraprasad

Sri M S Ramaswamy Iyengar Vs Sri T Srinivas Since Dead by Lrs Smt Renuka