Smt Hamsamma Vs Sharanappa

SHARANAPPA S/O DASAPPA AGE MAJOR RESIDING AT KOMMANAHALLI VILLAGE TEKAL HOBLI, MALUR TALUK KOLAR – 563 137 …RESPONDENT (BY SRI. M SHIVAPRAKASH, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 3.6.2013 PASSED IN R.A.NO.107/2011 (OLD NO.303/2007) ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., MALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.10.2007 PASSED IN O.S.NO.61/2002 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) MALUR.

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NC: 2025:KHC:19417 RSA No. 1234 of 2013

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HC-KAR

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THIS APPEAL, COMING ON FOR 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 03.06.2013 passed in R.A.No.107/2011 (old R.A.No.303/2007) by the learned Senior Civil Judge and JMFC, Malur.

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For convenience, parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondent was the defendant.

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

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The plaintiff filed a suit for permanent injunction restraining the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that the plaintiff is in possession and enjoyment of the suit schedule property, which was acquired by her from her

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deceased mother as the plaintiff is the sole legal representative. The records were standing in the name of the plaintiff’s mother as the owner in respect of the suit schedule property. After the demise of her mother, the name of the plaintiff was shown in the records of rights as the owner and possessor of the suit schedule property. The defendant is the brother of the plaintiff’s husband, without any manner of right or interest, tried to interfere with the plaintiff’s possession. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit.

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The defendant filed a written statement

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contending that the suit filed by the plaintiff is not maintainable and denied the plaint averments. It is contended that the plaintiff and her husband owns a property in Sy.No.4 measuring 1 acre out of 2 acres 21 guntas and the remaining portion in the same survey number was fallen to the defendants share. The defendant has grown coconut trees that are aged about 5 to 40 years

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and the plaintiff’s husband has coconut trees of a similar age. It is contended that the plaintiff’s husband has raised glasadia as a fence. After filing the suit, the plaintiff’s husband removed the said glasidia fencing. It is contended that the defendant has raised paddy and bean crops. It is

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contended that the defendant’s father executed a registered sale deed in favour of one Ramaiah to the extent of 1 acre 27 guntas excluding 2 acres 27 guntas including phot karab on 16.10.1952. It is contended that the plaintiff has not come to the Court with the clean hands and the plaintiff, without disclosing the real material facts, has filed the suit. Hence, prays 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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1. Whether the plaintiff proves the correct boundaries of suit schedule property?

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2. Whether the plaintiff proves her lawful possession, use and enjoyment of suit land?

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3. Whether the plaintiff proves the alleged interference by the defendant?

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4. Whether the defendant proves that out of 1 acre 27 guntas in Sy.No.4 he was given half share in oral partition?

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5. Whether the defendant proves that the plaintiff has included his half share of land in the suit schedule?

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6. Whether the plaintiff proves that she is entitled for the reliefs claimed?

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7. What order or decree?

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The plaintiff, to substantiate her case examined

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herself as PW-2 and examined 4 witnesses as PW-1, PW-3 to PW-5 and marked 12 documents as Ex.P.1 to Ex.P.12. In rebuttal, the defendant examined himself as DW-1, examined two witnesses as DW-2 and DW-3 and marked 12 documents as Ex.D.1 to Ex.D.12.

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The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issues No.1 to 3 and 6 in the affirmative, issues No.4 and 5 in the negative and issue No.7 as per the final order.

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The suit of the plaintiff was decreed with cost

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and granted a decree for permanent injunction restraining the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. The defendant aggrieved by the judgment and decree dated 29.10.2002 passed in O.S.No.61/2002 preferred and appeal in R.A.No.107/2011 on the file of the learned Senior Civil Judge and JMFC, Malur.

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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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POINTS

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1) Whether the appellant proves that, the trial Court erred in considering the alleged interference of the defendant and entitlement of permanent injunction against him.

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2) Whether the appellant proves that, the trial Court erred in framing of issues with regard to the title of the suit schedule property with boundaries in a suit for bare injunction?

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3) Whether the judgment and decree of the trial Court is opposed to law, facts and circumstances to the case and liable to interfere by this Court?

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4) What order?

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The first appellant Court, on reassessing the verbal and documentary evidence, answered points No.1 to 3 in the affirmative, point No.4 as per the final order. The appeal was allowed vide judgment dated 03.06.2013. Consequently, the first appellate Court set aside the judgment and decree passed in O.S.No.61/2002 dated 29.10.2007 and accordingly the suit of the plaintiff was dismissed with through out cost. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.107/2011 (old No.303/2007), filed this Regular Second Appeal.

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Heard the learned counsel for the plaintiff and also the learned counsel for the defendants.

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The learned counsel for the plaintiff submits that the first appellate Court, without assigning any proper reasons, reversed the judgment and decree passed by the trial Court and dismissed the suit. He submits that the judgment and decree passed by the first appellate Court is not in compliance with Order XLI Rule 31 of the Code of

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Civil Procedure, 1908 (for short CPC). Hence, he submits that the first appellate Court, being the final fact finding Court, is required to re-appreciate the entire evidence on record and answer each issue framed by the trial Court. Hence, he submits that the matter requires reconsideration by the first appellate Court. He submits that the appeal may be allowed and the matter may be remitted to the first appellate Court directing the first appellate Court to assign the appropriate and valid reasons to overcome the findings of the trial Court.

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Per contra , the learned counsel for the defendants supported the impugned judgment. He submits that the first appellate Court has re-appreciated the entire evidence on record and hence, prays to dismiss the appeal.

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I have perused the records and considered the submissions of the learned counsel for the parties.

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NC: 2025:KHC:19417 RSA No. 1234 of 2013

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This Court, admitted the appeal on 19.08.2014, to consider the following Substantial Questions of Law:

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“When the trial Court held that the gift deedEx.D.1 and Will-Ex.P.12 have been proved on the basis of evidence on record and granted a decree of injunction, whether the First Appellate Court was justified in reversing the judgment and decree of the trial Court and in doing so, did not assign appropriate and valid reasons to overcome the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?”

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Reg: Substantial Question of Law:

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I have perused the judgment passed by the first appellate Court. The first appellate Court, except reproducing the evidence of witnesses and documents, has not assigned any valid reasons to overcome the findings of the trial Court. Therefore, before dealing with the substantial question of law, it is necessary to discuss whether the impugned judgment passed by the first appellate Court is in accordance with Order XLI Rule 31 of CPC.

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The Hon’ble Apex Court had an occasion to deal with the requirements of provisions of Order XLI Rule 31

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of CPC in the case of H. Siddiqui dead by LRs Vs. A. Ramalingam reported in (2011) 4 SCC 240 . The Hon’ble Apex Court had observed that the said provisions provided guidelines for the first appellate Court as to how the Court has to proceed and decide an appeal. It is further observed that the provisions should be read in such a way as to require that the various particulars mentioned there in should be taken into consideration. It must be evident from the judgment of the first appellate Court that the Court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record.

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In paragraph No.18 of the judgment of the

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Hon’ble Apex Court, after considering its several

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judgments 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 the mere general expression of concurrence with the trial Court judgment rather it must give reasons for its

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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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(emphasis supplied)

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The first appellate Court while considering and

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deciding the first appeal, should realise that it has to be decided strictly in adherence with the provisions contained in Order XLI Rule 31 of CPC.

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From the perusal of the judgment of the first appellate Court, the first appellate Court has not formulated the points for consideration properly and reappreciated the entire evidence on record and not answered each issues framed by the trial Court. The judgment and decree passed by the first appellate Court is not in compliance with Order XLI Rule 31 of the CPC and is contrary to the ratio laid down by the Hon’ble Apex Court in the case of H. Siddiqui (supra). Hence, on this ground alone, the judgment and decree passed in

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