Shri. Yallappa Balu More Vs Smt. Sushila

THIS RFA IS FILED UNDER ORDER 41 RULE 1 AND 1 READ WITH SEC. 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.10.2019 PASSED IN O.S.NO.364/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BELAGAVI, DECREEING THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL RELIEF OF INJUNCTION.

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

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND

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THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2025:KHC-D:11593-DB RFA No. 100053 of 2020

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)

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The above first appeal is filed under Section 96 of the Code of Civil Procedure, 1908¹ by defendants calling in question the judgment and decree dated 30.10.2019 passed in O.S.No.364/2015 by the II Additional Senior Civil Judge and CJM, Belagavi² whereunder, the suit for declaration and injunction filed by the plaintiff has been decreed by the Trial Court.

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The parties will be referred to as per their rank before the Trial Court for the sake of convenience.

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It is the case of the plaintiff that her father one Sri Ramachandra was in possession of the larger property including the suit property and that the marriage of the plaintiff was solemnized with one Krishna Appaji Tahashildar. That after the marriage, the plaintiff was residing in her matrimonial home and thereafter the plaintiff and her husband shifted to her parental home to reside along with her parents. It is the further case of

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the plaintiff that, her father expired in the year 1985 leaving

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1 Hereinafter referred to as <the CPC= for short

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2 Hereinafter referred to as <the Trial Court= for short

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behind herself and her mother as his only surviving legal heirs. That after the death of her father, the revenue records in respect of the suit property was changed in her name since her mother gave her no objection and accordingly the plaintiff along with her mother were cultivating the suit property.

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It is the further case of the plaintiff that, since she was in need of certain finances, she alienated 35 guntas of the original property and retained 10 guntas i.e., the suit property. That one Sri Amrut Narayan Khemnalkar approached the plaintiff requesting her to sell the suit property, which was refused by the plaintiff. That defendant No.1 came along with the said Amrut Khemnalkar and insisted to sell the suit property by representing that a sum of ¹ 2,50,00,000/- would be paid. That at that time, defendant No.1 along with his son defendant No.2 were present and two Cheques of ¹20,00,000/- were forcibly handed over to the plaintiff and the plaintiff was insisted to execute a sale agreement, although the plaintiff was not willing for the same. It is the further case of the plaintiff that forcibly the plaintiff was made to sign certain papers. That when the plaintiff presented the said Cheques for encashment, the same were returned with

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an endorsement as <Funds insufficient=. That no amount was

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paid by defendant No.1 to the plaintiff.

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It is the further case of the plaintiff that her husband died on 08.04.2015 and that she is in possession of the suit property and that she has not handed over possession of the same to anyone and much less to defendant No.1. That defendant No.1, taking undue advantage of the situation got illegally executed a document styled as General Power of Attorney allegedly executed by the plaintiff and that defendant No.1 illegally claiming himself as the General Power of Attorney holder of the plaintiff got executed a registered sale deed on 10.04.2015. That the plaintiff got to know of the said fact in the year 2015. Subsequently, the plaintiff has filed the suit seeking for the following reliefs.

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<Hence for these amongst other grounds it is most humbly prayed that setting aside the contentions of the defendants if any a decree may kindly be ordered to be passed in favour of the plaintiff by granting the following reliefs:

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[a] A registered sale deed alleged to have been executed on 10/04/2015 by the defendant no 1 in favour of his own self with regard to the suit property i.e. described in para 1 of the plaint, may be declared as null, void, invalid and non est.

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[b] A decree of permanent injunction restraining the defendant no 1 their agents, servants or anybody acting on their behalf permanently, from interfering into the peaceful possession and enjoyment of plaintiffs by putting any illegal construction in the suit property as the one described in para no 1 of the plaint.

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[c] Awarding the cost of the suit.

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[d] Awarding any other equitable relief for which the plaintiff is entitled to and

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[e] Permitting the plaintiff to amend the plaint as and when necessary.=

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The defendants entered appearance in the suit and

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filed a written statement denying the case of the plaintiff. It is further contended that, the plaintiff has accepted the entire sale consideration of Rs.11,00,000/- and executed the General Power of Attorney and sale deed. It is further contended that, the Court

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fee paid is not proper and the suit has been valued incorrectly.

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Based on the pleadings of the parties, the Trial Court

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framed the following issues.

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1. Whether plaintiff proves that sale deed dated 10-04-2015 is outcome of fraud & as such it is null & void?

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2. Whether plaintiff further proves that she is in possession of suit property?

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3. Whether the defendants prove that court fee paid by plaintiff is insufficient?

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4. Whether plaintiff is entitled for the reliefs as sought?

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5. What order or decree?

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Issue No.3 regarding court fee was decided as a preliminary issue on 15.11.2017 and the plaintiff was directed to pay court fee on the market value of the suit property which was complied with by the plaintiff.

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The plaintiff examined herself as PW1 and marked Exs.P1 to P11. Defendant No.2 examined himself as DW1. However DW1 did not appear for cross-examination.

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The arguments of the learned counsel for the plaintiff were heard; however the arguments of the defendants, despite adequate opportunity having been given were not addressed. The Trial Court by its judgment and decree dated 30.10.2019 decreed the suit and passed the following order:

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<Suit of the plaintiff is decreed with cost.

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It is hereby declared that the sale deed dated 10.04.2015 existing in favour of the defendant No.1 in respect of the suit property is null and void. Consequently the defendant No.1 and any person claiming under him are hereby restrained by an order of permanent injunction from interfering with peaceful possession and enjoyment of the suit property by the plaintiff as prayed.

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Draw decree accordingly.=

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Being aggrieved, the defendants have preferred the present appeal.

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Heard submissions of learned counsel for the appellants - defendants and learned counsel for the respondent/plaintiff.

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Although various contentions have been put forth by the learned counsel for the appellants - defendants on the merits of the matter contending, inter alia, that the judgment and decree passed by the Trial Court is erroneous and ought to be interfered with by this Court in the present appeal, it is also contended that the Trial Court has not afforded an adequate opportunity to DW1 to present himself for cross-examination and that the defendants also did not have an opportunity to address their arguments in the matter. Hence learned counsel for the appellants 3 defendants seeks for the matter to be remanded, so as to afford an opportunity to DW1 to be presented for crossexamination and also to permit the appellants - defendants to address their arguments on the matter.

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Per contra, learned counsel for the respondent - plaintiff opposes the request of the appellants 3 defendants for remand of the matter and contends that adequate opportunity has been afforded by the Trial Court and that the appeal of the defendants is liable to be rejected.

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The submissions of both the learned counsels have been considered and the materials on record have been perused.

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Although the learned counsel for the appellants 3 defendants have sought to impugn the judgment and decree passed by the Trial Court on the merits of the matter, as noticed above, it is clear and forthcoming from the material record that DW1 was not present for cross-examination. It is further pertinent to note here that the examination-in-chief of DW1 was adduced on 03.08.2019 and the matter was posted to 26.08.2019 for cross-examination of DW1. However, on the said date the Trial Court noticing that the defendants were permitted to adduce evidence pursuant to I.A.Nos.9 and 10 being allowed on cost of Rs.1,500/- each, rejected the request made on behalf of defendants for time for DW1 to be present for crossexamination and vide order dated 26.08.2019 took the cross-

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examination of DW.1 as nil for non appearance of DW.1. Thereafter the Trial Court has heard the arguments of the plaintiffs on 03.09.2019 and adjourned the matter to 13.09.2019 for the arguments of the defendants. Since there was no appearance on behalf of the defendants, arguments on behalf of defendant Nos.1 and 2 were taken as nil and matter was proceeded for judgment.

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It is the contention of the learned counsel for the appellants 3 defendants that due to various circumstances, DW1 could not be present for cross-examination and that the arguments on merits could not be addressed before the Trial Court.

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Having regard to the aforementioned factual matrix, keeping in mind that the valuable rights in immovable properties are required to be adjudicated in the suit filed by the respondent - plaintiff, in the interest of justice it is just and proper that the appellants 3 defendants be afforded an another opportunity before the Trial Court with certain directions.

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Hence, the following:

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ORDER

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The above appeal is hereby allowed;

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The impugned judgment and decree dated 30.10.2019 passed in O.S.No.364/2015 by the Trial Court is set aside and the matter is remitted back to the Trial Court subject to the appellants - defendants paying cost of ¹30,000/- to the respondent 3 plaintiff;

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The parties shall appear before the Trial Court on 15.10.2025, without the requirement of any further notice being issued in this regard;

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The appellants 3 defendants shall pay the Cost of ¹30,000/- on the date of appearance before the Trial Court to the respondent - plaintiff. In the event the respondent- plaintiff refuses to receive the cost, the same shall be deposited before the Trial Court;

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DW1 shall be kept present for cross-examination on the date fixed by the Trial Court;

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Consequent to the cross-examination of DW1 the Trial Court shall afford an opportunity to the defendants to adduce further evidence and thereafter conduct further proceedings in accordance with law;

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