Smt. Devamma Vs Kalegowda

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 12.3.2013 PASSED IN R.A.NO.153/2012 ON THE FILE OF C/c VI ADDITIONAL DISTRICT JUDGE, MYSORE, PARTLY ALLOWING THE APPEAL

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AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 15.3.2012 PASSED IN OS.NO.569/2007 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, MYSORE.

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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 appellants challenging the judgment and decree dated 12.03.2013 passed in R.A.No.153/2012 by the VI Additional District Judge, Mysore.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants, and the respondents were the plaintiffs.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for declaration and injunction contending that they are the

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absolute owners, in possession, and enjoyment of the suit schedule property measuring 1 acre 17 guntas in Sy.No.267/2B1 of Nagavala village, Yelawala hobli, Mysore Taluk. The plaintiffs had sold portion of Sy.No.267/2 to one Sampigowda and they retained the suit property. Sy.No. 267/2 was renumbered as 267/2 B1 out of total extent of 2 acres 35 guntas. The plaintiffs sold 2 acres in favour of Sampigowda S/o Javaregowda. Even though he sold 2 acres, out of 2 acres 35 guntas, only 1 acre 24 guntas cannot be entered in the name of Sampigowda, Hence, the remaining 1 acre 17 guntas continued in the name of the plaintiffs as an owner in possession. The defendants who were not related to the plaintiffs tried to interfere with the peaceful possession, and enjoyment over the suit schedule property. The defendants taking advantage of their names in the revenue records are attempting to alienate the suit property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration

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and permanent injunction. Accordingly, prays to decree the suit.

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3.1. Defendants No.1 to 8 filed a written statement

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denying the averments made in the plaint. It is contended that suit schedule property along with the adjacent land to an extent of 2 acres is an ancestral property of the defendants, and they are in possession and enjoyment of the suit schedule property along with the adjacent land to an extent of 2 acres. The revenue records stood in the name of defendant No.1’s husband i.e., the father of defendant Nos.2 to 8 vide M.R.No.25/1974-75 and after his death, the suit schedule property was mutated in the name of defendant No.1 vide MR No.37/2006-07 and the suit property was sold in favour of defendant No.9 under a registered sale deed dated 23.02.2007 for legal necessity and the possession was handed over to defendant No.9. It is contended that defendant No.9 is in possession of the suit schedule property, and accordingly, prays to dismiss the suit.

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3.2. Defendant No.9 filed a written statement on the

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same lines and contended that he is in possession of the suit property and his vendors have perfected title over the property by adverse possession and hence, prays to dismiss the suit.

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3.3. The trial Court, based on the pleadings of the

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parties framed the following issues, and Additional issues.

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1. Whether the plaintiff proves that he is the absolute owner in peaceful possession and enjoyment of suit schedule property as on date of suit?

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1. Whether the plaintiff further proves that the Revenue Authority has inducted the name of 1^st defendant in the RTC and Revenue records against the principles of law?

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1. Whether the plaintiff proves that taking advantage of wrong entry in Revenue records defendant Nos.1 to 8 have executed registered sale deed dated 23.02.2007 in favour of the 9^th defendant and the same is not binding on him?

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1. Whether the plaintiff is entitled for the relief of declaration and consequential relief of permanent injunction?

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1. What order or decree?

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Additional Issues:

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1. Whether the 9^th defendant proves that the defendants have sold the suit schedule property in his favour for legal necessity as per the registered sale deed dated 23.02.2007?

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1. Whether the 9^th defendant proves that the suit is barred by time?

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1. Whether the 9^th defendant proves that his vendors have perfected their title by way of adverse possession?

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3.4. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1, one witness was examined as PW.2 and 8 documents were marked as Exs.P1 to P8. In rebuttal, defendant No.8 was examined as DW.1, and 22 documents were marked as Exs.D1 to D22. The trial Court, after recording the evidence, hearing both sides, and on assessing the verbal and documentary evidence, answered issue Nos.1 to 4, additional issue Nos.2 and 3 in the negative, additional issue No.1 in the affirmative, and issue No.5 as per the final order.

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3.5. The suit of the plaintiff was dismissed vide

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judgment dated 15.03.2012. The plaintiffs, aggrieved by

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the judgment and decree passed in O.S.No.569/2007, preferred an appeal in R.A.No.153/2012 on the file of the VI Additional District Judge, Mysore.

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3.6. The first Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration.

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1. Whether the appellants- plaintiffs prove that the plaintiff is the absolute owner and in peaceful possession and enjoyment of suit schedule property?

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1. Whether the appellants- plaintiffs further prove that the name of defendants came to be inducted by revenue officials without there being any basis?

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1. Whether the appellants- plaintiffs are entitled to get amend the plaint as set out in I.A.2?

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1. Whether the appellants- plaintiffs are entitled for the relief of declaration and permanent injunction in respect of 35 guntas only?

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1. Whether the appellants- plaintiffs prove that the judgment and decree of the trial Court are

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perverse, unsustainable and interference of this Court is required?

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What order?

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3.7. The first Appellate Court on reassessing the

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verbal and documentary evidence, answered point No.1 to 4 in the affirmative, point No.5 partly in the affirmative, and point No.6 as per the final order. I.A.No.2 filed by the appellants - plaintiffs was allowed. It is ordered that the plaintiffs are entitled to amend the plaint before drawing the decree. The appeal filed by the plaintiffs was allowed vide judgment dated 12.03.2013 and consequently, the judgment and decree passed by the trial Court in O.S.No.569/2007 dated 15.03.2012 was set aside, and consequently, the suit of the plaintiffs was partly decreed. It is declared that the plaintiffs are owner of 35 guntas of land towards south-east corner of Sy.No.267/2B1 and the defendants are restrained by means of a permanent injunction from interfering in peaceful possession and enjoyment of said 35 guntas of land of the plaintiffs.

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3.8. The defendants, aggrieved by the judgment and

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decree dated 12.03.2013, passed in R.A.No.153/2012 by the VI Additional District Judge, Mysore, have filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for

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the defendants, and the learned counsel for the plaintiffs.

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Learned counsel for the defendants submits

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that the plaintiffs filed an application in I.A.No.2 for the amendment to the plaint. He submits that the first Appellate Court has not provided opportunity to the defendants to file an objections to the amendment application filed by the plaintiffs and also to file an additional written statement, and proceeded to pass the impugned judgment. He submits that the impugned judgment passed by the first Appellate Court is without application of the mind. Hence, he prays to allow the appeal.

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Per contra , the learned counsel for the plaintiffs

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supports the impugned judgments, and contends that by way of amendment, the plaintiff has sought a lower extent of land, and there was no necessity for the defendants to file an additional written statement. The first Appellate

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Court was justified in reversing the judgment and decree passed by the trial Court in O.S.No.569/2007. Hence, on these grounds, prays to dismiss the appeal.

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This Court vide order dated 18.02.2020,

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admitted the appeal to consider the following substantial questions of law :

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i. Whether the first Appellate Court was justified in allowing I.A. filed under Order VI Rule 17 of CPC and permitting the plaint to be amended without giving an opportunity to the defendants to file their written statement?

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ii. Whether the first Appellate Court was justified in simultaneously allowing the application filed under Order VI Rule 17 of CPC, to amend the plaint and also thereby allowed the appeal

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and set aside the judgment and decree of the trial Court?

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iii. Whether the trial Court was justified in relying upon Ex.P1 to return a finding that the property available for declaration was only 35 guntas as against 1 acre 17 guntas claimed by the plaintiffs?

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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REG. SUBSTANTIAL QUESTIONS OF LAW NOS.1 AND 2:

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Substantial questions of law Nos.1 and 2 are interlinked with each other. Hence, they are taken together for common discussion to avoid repetition of facts.

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There is no dispute that the plaintiffs filed a suit for declaration, and permanent injunction against the defendants claiming that the plaintiffs are the absolute owners in possession of the suit schedule property measuring 1 acre 17 guntas. The defendants filed a written statement denying the averments made in the

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plaint. The plaintiffs to substantiate their case, legal representative of the original plaintiff i.e., Boregowda (plaintiff No.2) was examined as PW.1, one witness was examined as PW.2, and 8 documents were marked as Exs.P1 to P8.

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In rebuttal, defendant No.8 was examined as DW.1, and marked 22 documents as Exs.D1 to D22. The trial Court after recording the evidence, hearing both sides, recorded its finding that the plaintiffs have failed to prove that they are the absolute owners in possession and enjoyment of the suit schedule property, and also failed to prove that, the revenue authorities inducted the name of defendant No.1 in the RTC, and the revenue records are against the principles of law, and taking advantage of the wrong entry in the revenue records, defendant Nos.1 to 8 have executed the registered sale deed dated 23.02.2007 in favour of defendant No.9, and the same is not binding on him.

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Further, held that defendant No.9 has proved that the defendants have sold the suit schedule property for legal necessity as per the registered sale deed dated 23.02.2007, and held that defendant No.9 has failed to prove that the suit is barred by limitation and also held that defendant No.9 has failed to prove that his vendors have perfected their title by way of adverse possession, and consequently, dismissed the suit of the plaintiff. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.596/2007, preferred an appeal in R.A.No.153/2012 on the file of the learned VI Additional District Judge, Mysore.

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During the pendency of the said appeal, the plaintiffs filed an application in I.A.No.2 seeking amendment to the plaint on 10.09.2012. From the perusal of the order sheet dated 10.09.2012 it is evident that, the matter was posted for filing of the objections to I.A.No.2 on 30.10.2012. On 30.10.2012, the objections were taken as not filed and the matter was posted for

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hearing on I.A.No.2. The said application was considered by the first Appellate Court along with the main matter. I.A.No.2 was allowed by the first Appellate Court, and consequently the judgment and decree passed in O.S.No.569/2007 dated 15.03.2012, was set aside and consequently, the suit of the plaintiffs was decreed.

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First of all, the first Appellate Court has not provided opportunity to the defendants to file the objections to I.A.No.2, and has taken objections of the defendants as not filed on the next date of hearing. Furthermore, the first Appellate Court has allowed the application seeking an amendment to the plaint. It was the duty of the first Appellate Court to permit the defendants to file an additional written statement. Thus, the procedure adopted by the first Appellate Court in disposing the application in I.A.No.2 is illegal.

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Based on the amendment, the first appellate Court has set aside the judgment and decree passed by

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the trial Court. The judgment and decree passed by the first Appellate Court, without providing the sufficient opportunity to the defendants to file the objections to I.A.No.2 is arbitrary and the first Appellate Court without providing opportunity to file an additional written statement, has allowed the appeal. The judgment and decree passed by the first Appellate Court is arbitrary, erroneous, and perverse, and the same is liable to be set aside. In view of the above discussion, I answer substantial question of law Nos.1 and 2 in the affirmative.

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REG. SUBSTANTIAL QUESTION OF LAW NO.3:

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This Court is of the opinion that the matter requires

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fresh consideration by the first Appellate Court. This Court does not want to express any opinion on substantial question of law No.3. Hence, substantial question of law No.3 does not arise for consideration.

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Accordingly, I proceed to pass the following

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order:

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ORDER

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i. The Regular Second Appeal is allowed.

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ii. The judgment and decree dated 12.03.2013 passed in R.A.No.153/2012 by the VI Additional District Judge, Mysore, is set aside.

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iii. The R.A.No.153/2012 on the file of learned VI Additional District Judge, Mysore, is restored to its original file.

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iv. The first Appellate Court is directed to permit the defendants to file additional written statement, to the amended portion and thereafter, pass the appropriate judgment in accordance with law.

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