Sri. Govindappa S/O Late Siddappa Vs Laxmamma W/O Late Kondappa

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 18.4.2013 PASSED IN R.A.NO.61/2012 ON THE FILE OF ADDITIONAL SESSIONS JUDGE (FAS TRACK COURT), CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 2.8.2012 PASSED IN OS.NO.21/2011 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE.

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NC: 2025:KHC:24925 RSA No. 1223 of 2013

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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 18.04.2013 passed in R.A.No.61/2012 on the file of the Learned Additional Sessions Judge, FTC, Chitradurga, and the judgment and decree dated 02.08.2012 passed in O.S.No.21/2012 by the learned Senior Civil Judge, Challakere.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the defendant, 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 the suit against the defendant for a declaration to declare that the plaintiffs are the absolute owners in possession of the suit schedule property by holding that the registered partition deed dated 12.10.1987 is not binding on them, and consequently, sought a permanent injunction. It is the case of the plaintiffs that they are the legal heirs of Kondappa, who is no more. It is contended that Kondappa has purchased Sy.No.72, measuring 30 Acres and 22 Guntas of land from one Eshwarappa on 30.5.1958 and therefore, the said land is a self acquired property, and that, except Kondappa, nobody has any right, title, or interest over the suit schedule property. It is the case of the plaintiffs that they are the legal representatives of the deceased Kondappa. After his demise, the plaintiffs succeeded to the suit property and have become owners in possessions of the suit schedule property.

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During May 2011, the plaintiff visited the

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Revenue office for the payment of a tax, the Revenue

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authorities refused to collect the tax for 7 acres 25 guntas of land in Sy.No.72/1p2 since the Khata stood in the name of the defendants and then the plaintiffs came across the registered partition deed dated 12.10.1987. It is contended that, without the plaintiffs' knowledge the partition deed was created and the partition deed is not binding on the plaintiffs. The defendant has no right/interest over the suit property. Immediately, the plaintiffs obtained the certified copy of the registered partition deed, and a cause of action arose for the plaintiffs to file a suit for declaration of title, and a permanent injunction. Accordingly, prays to decree the suit.

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The defendant filed a written statement, contending that the suit filed by the plaintiffs is not maintainable. It is contended that deceased plaintiff No.1 is the own sister of the defendant. And her marriage was performed with Kondappa and the sister of Devanna by name Gowramma had given in marriage to the father of

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the defendant by name Siddappa. Both families, i.e., the family of Kondappa and the family of Siddappa i.e., the defendants did not have any landed properties, and they were doing coolie work. The children of Siddappa, namely Bheemaiah, Govindappa (the defendant), Narasimhappa,

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were working as coolies and out of the said coolie amount, the suit property was purchased in the name of Kondappa, who was the eldest member of the joint family. The defendant has a share in the suit schedule property. It is contended that, after the marriage of Bheemaiah a dispute arose between the family members. Therefore about 50 years ago Bheemaiah partitioned the property and took his 1/4^th share. As Kondappa and Bheemaiah were relatives and as they could not partition the property. Therefore, Bheemaiah got registered the sale deed regarding 7 acres 25 guntas out of Sy.No.72 measuring 30 acres 22 guntas, and remaining 23 acres 35 guntas is in joint possession of Kondappa, Govindappa and Narasimhappa.

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6. Govindappa and Kondappa have partitioned the

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property, and in the said property 7 acres 25 guntas fell to the share of the defendant and the remaining property fell to the share of Kondappa. Since, the date of the partition, the respective parties have been in possession and enjoyment of the suit schedule property. It is contended that the defendant is the absolute owner and in possession of the suit schedule property. There is no cause of action to file the instant suit. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the following issues:

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1. Whether plaintiffs prove that they are the absolute owners in possession and enjoyment of the suit schedule property?

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2. Plaintiffs prove that partition deed dated 12.10.1987 is not binding on the rights of them?

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3. Whether defendant prove that suit is barred by law of limitation?

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4. What order or decree?

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The plaintiffs, to substantiate their case,

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plaintiff No.4 was examined himself as PW1, one witness was examined as PW2, and 6 documents were marked as Ex.P1 to Ex.P6. In rebuttal, the defendant was examined as DW1, and one witness was examined as DW2 and 10 documents were marked as Ex.D1 to Ex.D10.

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The trial Court, after recording the evidence, hearing both sides, and on assessing the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative, point No.3 in the negative, and point No.4 as per the final order. The suit of the plaintiffs was decreed vide judgment dated 02.08.2012 and it was declared that the plaintiffs are the absolute owners and in possession of the suit schedule property, and the partition deed dated 12.10.1987 is not binding on the plaintiffs' right and the defendant was permanently restrained from interfering with the plaintiffs' peaceful possession, and enjoyment over the suit schedule property. The defendant, aggrieved by the judgment and decree passed in O.S.No.21/2011 by

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the Learned Senior Civil Judge, Challakere, preferred an appeal in R.A.No.61/2012 on the file of the Learned Additional Sessions Judge, Fast Track Court, Chitradurga.

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The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:-

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1. Whether plaintiffs proved that, they are the absolute owners in possession and enjoyment of the suit schedule property and the alleged partition deed dated 12.10.1987 is not binding on their rights as it is created by the defendant?

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2. Whether the impugned judgment passed by learned trial Court is arbitrary, perverse, capricious and oppose to law?

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3. Is there any sufficient reasons to interfere in the order of the learned trial court?

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4. What decree or order?

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The first appellate Court, after hearing the parties and after re-assessing the verbal and documentary evidence, answered point No.1 in the affirmative, point Nos.2 and 3 in the negative and point No.4 as per the final

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order. The appeal was dismissed vide judgment dated 18.04.2013. The Judgement and decree passed in O.S.No.21/2011, dated 02.08.2012, by the learned Senior Civil Judge, Challakere, was confirmed. The defendant, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the defendant and the plaintiffs.

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Learned counsel for the defendant submits that

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the first appellate Court, being a final fact finding Court, has re-appreciated the entire evidence on record. She submits that plaintiff No.4 was examined as PW1, also one witness was examined as PW2, and 6 documents were marked. Conversely, the defendant was examined as DW1, and produced 10 documents which were marked as Ex.D1 to Ex.D10. She submits that the first appellate Court without re-appreciating the entire evidence on record, by general expression, affirmed the judgment and

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decree passed by the trial Court. She submits that the judgment and decree passed by the first appellate Court is not in compliance with order 41 rule 31 of the CPC, 1908.

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To buttress her arguments, she has placed reliance on the judgment of the Hon'ble Apex Court in the case of H. Siddiqui (D) By Lrs vs A. Ramalingam reported in (2011) 2 KCCR 1389 . She submits that the matter requires re-consideration by the first appellate Court, and prays to allow the appeal, and set aside the judgment and decree passed in R.A.No.61/2012, remitting the matter to the first appellate Court with a direction to pass the judgment in compliance with Order 41 Rule 31 of the Code of Civil Procedure, 1908.

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Per contra, the learned counsel for the plaintiff submits that, that the first appellate Court has correctly re-appreciated the entire evidence on record produced by the parties and has passed the judgment and decree which is in compliance with order 41 Rule 31 of the CPC, 1908.

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Hence, he submits that the impugned judgments passed

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by the Courts below are just and proper, and do not call for any interference. Hence, prays to dismiss the appeal.

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This Court admitted the appeal on 22.06.2016

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to consider the following substantial questions of law:

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1. Were the Courts below justified in decreeing the suit in favour of the plaintiffs ignoring the material documents Ex.D1 and Ex.P3 which clearly depicts that the deceased Kondappa and Govindappa purchased the suit schedule properties on 30.05.1958 and in the year 1987, Kondappa executed his right in the suit schedule properties on 12.10.1987?

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2. Were the Courts below justified in decreeing the suit without considering oral and documentary evidence on record?

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3. Were the Courts below justified in decreeing the suit ignoring the law of limitation when the suit filed by the plaintiffs are barred by limitation?

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In addition to the substantial

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questions of law framed by this Court on

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22.06.2016, on 10.11.2021, the following

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substantial question of law was framed:-

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"Whether the suit filed by the plaintiffs seeking the relief for declaration and permanent injunction in the absence of relief for possession was maintainable, having regard to the fact that the plaintiffs have not disputed the execution of the partition deed dated 12.10.1987 Ex.D10 by late Kondappa in favour of the defendant and when the material available on record would go to show that the defendant was put in possession of the land in question pursuant to the said partition deed?"

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Regarding Substantial Question No.2

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The plaintiffs filed a suit for a declaration to declare that the plaintiffs are the absolute owners in possession of the suit schedule property and to declare that the registered partition deed dated 12.10.1987 is null and void, and not binding on the rights of the plaintiffs and also sought for permanent injunction. To substantiate the case of the plaintiffs, plaintiff No.4 was examined as PW1, and reiterated the plaint averments in the examination-inchief, and to prove that the plaintiffs are the absolute

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owners of the suit schedule property, produced 6 documents which were marked as Ex.P1 to Ex.P6. The plaintiffs also examined one witness, as PW2.

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In rebuttal, the defendant was examined himself as DW1, examined one witness as DW2, and 10 documents were marked as Ex.D1 to Ex.D10.

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The trial Court, after considering the material on record, decreed the suit of the plaintiffs vide judgment dated 02.08.2012 holding that the plaintiffs are the absolute owners in possession of the suit schedule property, and also declared that the registered partition deed dated 12.10.1987 is null and void, and not binding on the rights of the plaintiffs, and further, the decree of permanent injunction was granted restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. The defendant, aggrieved by the judgment and decree passed in OS.No.21/2011 preferred an appeal in R.A.No.61/2012

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on the file of learned Additional Sessions Judge, Fast Track Court, Chitradurga. The first appellate Court framed the points for consideration.

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From the perusal of the entire judgment passed by the first appellate Court, it is evident that the first appellate Court has not discussed the evidence of PW1, DW1 and DW2, and merely recorded its finding that, whether the defendant is able to show that, out of the coolie amount, the said property was purchased in the name of Kondappa or not. The first appellate Court has not applied its mind while passing the impugned judgment. The Hon'ble Apex Court in the case of H. Siddiqui (D) By Lrs vs A. Ramalingam reported in (2011) 2 KCCR 1389 had an occasion to consider the requirements of Order 41 Rule 31 of the CPC, 1906. The Hon'ble Apex Court observed that the said provisions provide a guidelines to the first appellate Court as to how the first appellate Court has to proceed, and decide the appeal. It is further observed that, the provisions should be read in

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such a way, as to require, that the various particulars mentioned therein should be taken into consideration. It must be evident from the judgment of the First Appellate Court that the First Appellate Court has properly appreciated the facts/evidence, applied its mind, and decided the case by considering the material on record.

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In para 18 of the judgment of the Hon'ble Apex Court in the case of H. Siddiqui (D) By Lrs vs A. Ramalingam reported in (2011) 2 KCCR 1389, after considering its several judgments, has observed thus:

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"It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."

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From the perusal of the judgment passed by the first appellate Court, it is evident that the first appellate Court has not independently assessed the evidence of the parties, considered the relevant points which arise for consideration, and the bearing of evidence on those points. The first appellate Court has just recorded a mere general expression concurrent to that of the trial Court judgment, and has not assigned any reasons for confirming the judgment and decree passed by the trial Court. The defendant has raised a plea of limitation, but the first appellate Court has not considered the grounds raised by the defendant in the first appeal memo. Thus, the judgment and decree passed by the first appellate Court is contrary to the preposition laid down by the Hon'ble Apex Court in the case of H. Siddiqui (D) By Lrs vs A. Ramalingam reported in (2011) 2 KCCR 1389 . Hence, on this ground alone, the judgment and decree passed in R.A.No.61/2012 is liable to be set aside.

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As the matter requires reconsideration by the first appellate Court, in view of the above discussions, I answer substantial question No.2 in the negative. As this Court is remitting the matter to the first appellate Court, in view of the same, substantial question Nos.1,3 and additional substantial question of law would not arise for consideration.

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