Mr S R Narasimhamurthy Vs the Sreematha Trust

THE SREEMATHA TRUST, HARIHARAPURA, KOPPA TALUK, CHIKKAMAGALURU DISTRICT, THROUGH ITS MANAGING TRUSTEE MR. D.N. JEEVARAJ S/O NARAYANA GOWDA AGED ABOUT 61 YEARS R/O DWARAMAKKI - 577 134, N.R. PURA TALUK CHIKKAMAGALURU DISTRICT.

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MRS. DEVAMSHA W/O MEHUL LATHIA AGED ABOUT 42 YEARS R/AT NO. 202, SF, 'C' BLOCK, GARADI APARTMENT,

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K.R. ROAD, BASAVANAGUDI BENGALURU - 560 004. REPRESENTED BY THEIR

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SMT. DEVAPUTHA D/O S.R. NARASIMHAMURTHY AGED ABOUT 37 YEARS R/AT NO. 202, SF C BLOCK GARADI APARTMENT, K.R. ROAD, BASAVANAGUDI BENGALURU - 560 004.

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RESPONDENTS NO2 AND 3 ARE REPRESENTED BY THEIR SPECIAL POWER OF ATTORNEY HOLDER SMT. SAKSHI GANGADKAR, W/O SHIVRAM GANGADKAR, AGED ABOUT 32 YEARS, R/AT NO. 30, THIMMEGOWDANADODDI VILLAGE, KASABA HOBLI, HARISANDRA POST, RAMANAGARA - 562 128.

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…RESPONDENTS

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(BY SMT. ARUNA SHYAM, SR. ADVOCATE SRI. SUYOG HERELE E, ADVOCATE FOR R1 A/W TRUST DEED; R2 - DEVAMSHA, SERVED; R3 - DEVAUPTHA - SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.03.2024 PASSED IN RA.NO.25/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, N.R.PURA, ITINERARE AT KOPPA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT

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AND DECREE DATED 14.08.2023 PASSED IN O.S.NO.12/2015 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KOPPA.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard on merits regarding admission, learned counsel for appellant Sri. Keshavamurthy B. and Sri. Arun Shyam, learned senior counsel for Sri. Suyog Herele for respondent No.1.

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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Suit property was sold by the appellant herein by a registered sale deed dated 26.02.2000. Appellant is the first defendant in the suit in O.S. No.12/2015 filed by his daughters questioning the alienation. As expected, the appellant being the father of plaintiff did not contest the suit which shows that it is a collusive suit between the

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plaintiffs and the first defendant only with an intention to somehow grab the suit property which was sold by the first defendant in favour of the contesting respondent under a registered sale deed dated 26.02.2000.

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Pertinent to that there was a total lull between

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the period of 26.02.2000 till the date of filing of suit in the year 2015.

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It is also pertinent to note that in the sale deed, first defendant has categorically stated that suit property is his self acquired property. Even though the relief claimed in the suit for cancellation of the sale deed and permanent injunction, the basis for filing the suit by the daughters of the first defendant as plaintiffs is that the property is a joint family properties and plaintiffs did have independent interest in the suit property. To establish that suit property is joint family property, there is no material on record. Therefore the Trial Judge was justified in dismissing the suit of the plaintiffs.

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In view of dismissal of the suit, the plaintiffs

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filed an appeal before the First Appellate Court in RA No.25/2023 where again first defendant was shown as the first respondent. It is at that juncture, as an after thought,

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first defendant who is the appellant before this Court filed a cross objection. Cross objection is in the nature of supporting the case of plaintiffs and therefore it could not have been considered as cross objection strictly in accordance with law.

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No doubt, the learned Judge in the First Appellate Court after securing the records, dismissed the appeal, but did not chose to write in so many words that the cross objection is not maintainable in view of the fact that the first defendant did not contest the suit before the Trial Court.

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Being aggrieved by the same, it is the first defendant who has filed the present appeal. In other

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words, plaintiffs are satisfied with the dismissal of the suit which was confirmed by the First Appellate Court.

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Being aggrieved by the non consideration of the Cross Objection filed by the first defendant, the appellant has filed the present appeal on the following grounds:

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That the impugned Judgments and Decrees are contrary to the material on record and opposed to the well established principles of law and therefore the same are liable to be set aside.

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That the impugned Judgments and Decree are not speaking orders as both the courts below have not assigned any cogent or justifiable reasons and therefore the same are liable to be set aside.

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That while passing the Judgment and Decree in the Regular Appeal, the First Appellate Court has never uttered one single word about the filing of CrossObjections by the Appellant nor made any observation about the same, and has never passed arty order on the Cross-Objections. As such, the First Appellant has committed a grave error in passing the impugned Judgment and Decree which is apparent on the face of the record, and therefore the same is liable to be set aside.

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That the First Appellate Court has never taken into consideration that the Appellant has clearly mentioned in his Cross-Objection that he is the resident of Bangalore and because of his advanced age and sickness he could not appear before the Trial Court within short span of time to lead his evidence. Admittedly the Appellant filed his Written Statement on 07-07-2023 the matter was posted for framing Additional Issues on 10-07-2023 however, no additional issues were framed, and the matter was posted on the next day i.e., on 11-07-2023 for evidence of Appellant/Defendant No.1 and adjourned to 15-07-2023 on which day the Trial Court took the evidence of the Appellant as Nil and posted the matter for arguments. The time granted to the Appellant to lead his evidence is just from 11-07-2023 to 15-07-2023. Thus it is clear that there is no sufficient opportunity granted to the Appellant to lead his evidence. On the basis of the same, the Trial Court has made adverse inference against the Appellant and has held that the suit was collusive, which is highly erroneous and arbitrary. Without considering this vital aspect of the matter, the First Appellate Court has straight away making any observation on the Cross-objections filed by passed the impugned Judgment and Decree, without the Appellant. As such, the same is highly erroneous and unsustainable in law.

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That both the Courts below have never taken into consideration the specific contention taken by the Appellant in his Written Statement that he has never sold the Suit Schedule Property and that he has never received

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any consideration amount and that the Respondent No.1 has obtained the Sale Deed under the guise of a Gift and when there is no consideration passed on to the Appellant, no right, title or interest flowed into the Respondent No.1/purchaser. As such, the sale deed in question is not sustainable in law and the same is to be cancelled. Without considering this vital aspect of the matter, both the courts below have grossly erred in passing the impugned Judgments and Decrees which are highly erroneous and unsustainable in law and therefore liable to be set aside.

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That both the courts below have failed to take into consideration that absolutely there was no necessity to alienate the Suit Schedule Property. It was the family arrangement between the Appellant and the Respondents No.2 and 3 that the Appellant shall retain the enjoy the land measuring 0-02 guntas and the another extent of land measuring 0-05 guntas ie., the Suit Schedule Property, shall be shared equally between the Respondents. No.2 and 3, and it is in this background they continued to be in peaceful possession and enjoyment of the Suit Schedule Property. The Appellant never had any ir tention to sell the suit schedule property and no consideration is passed on to him, and the Respondent No.1 has obtained a Sale Deed under the guise of a Gift. Without considering the same, both the courts below have grossly erred in passing the impugned Judgments and Decrees, which are unsustainable in law and therefore liable to be set aside.

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Viewed from any angle and at any stretch of imagination, it could clearly be held that the impugned Judgments and Decrees are highly erroneous, arbitrary and contrary to the material on record and opposed to law, facts and circumstances of the case and therefore the same are liable to be set aside.

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9. In the appeal, following substantial questions of

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law are raised :

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(i) Whether the First Appellate Court is justified in law in dismissing the Regular Appeal without passing any order on the Cross-Objections filed by the Appellant?

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(ii) Whether the Trial Court is right in drawing adverse inference against the Appellant without providing sufficient opportunity to lead his evidence?

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(iii) Whether the Courts below are justified in lav in dismissing the suit, without ascertaining the ingredients required for deciding the suit for declaration ?

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Sri. Keshava Murthy B. learned counsel for the appellant reiterating the grounds urged in the

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memorandum of appeal vehemently contended that non consideration of the cross objection without raising a point

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on the question of cross objection and dismissing the appeal filed by the plaintiffs has resulted in grave miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law.

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Per contra, Sri. Arun Shyam, learned senior counsel representing Sri. Suyog Herele for contesting respondent who is the purchaser of the property from the appellant under a registered sale deed dated 26.02.2000 supports the impugned judgment.

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Insofar as for non raising necessary point and dismissing the appeal of the plaintiffs ignoring the cross objections filed by the first defendant is concerned, he would contend that same is not bad in law in view of the fact that the first defendant did not possess any independent right, title or interest in respect of the suit property being the vendor of the contesting respondent in registered sale deed dated 26.02.2000.

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In support of his arguments, he places reliance on the judgment of the Hon'ble Apex Court in the case of Nafees Ahmad and Another vs. Soinuddin and others reported in 2025 SCC Online 826 . Relevant paragraphs reads as under:

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" 2. This appeal arises from the judgment and order passed by the High Court of Judicature at Allahabad, Lucknow Bench dated 4-9-2017 in Second Appeal No.69/2008, by which the Second Appeal filed by the respondents – herein came to be partly allowed and the matter was remitted to the First Appellate Court on the ground that the First Appellate Court failed to comply with the provisions of Order 41 Rule 31 of the Code of Civil Procedure (CPC).

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3. The High Court, while deciding the Second Appeal, formulated the following substantial question of law:-

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“Whether it is incumbent upon the Appellate Court to frame the point of determination as per the provisions of Order 41 Rule 31 CPC while deciding the first appeal or not?”

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4. Order 41 Rule 31 CPC reads thus:

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“Rule 31. Contents, date and signature of judgment.─ 18:12:07 IST Reason: The judgment of the Appellate Court shall be in writing and shall state ─

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(a) the points for determination;

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(b) the decision thereon;

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(c) the reasons for the decision; and

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(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

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5. It appears that the High Court relying upon few decisions took the view that Order 41 Rule 31 CPC is mandatory and the failure on the part of the Appellate Court to frame the points for determination as per the provisions of Order 41 Rule 31 CPC would vitiate the entire judgment and make it wholly void.

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6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are in complete disagreement with the view taken by the High Court.

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7. We propose to follow the dictum as laid by this Court in the case of “G. Amalorpavam And Others v. R.C. Diocese of Madurai And Others” reported in (2006) 3 SCC 224, wherein this Court observed that whether in a particular case, there has been substantial compliance, with the provisions of Order 41 Rule 31 CPC should be determined on the nature of the judgment delivered in

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each case. Non-compliance with the provisions, by itself, may not vitiate the judgment and make it wholly void and may be ignored if there has been a substantial compliance with it."

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Having heard the arguments of both sides, this court perused the material on records in the light of the grounds urged in the appeal as well as in the light of substantial questions of law raised in the appeal memorandum.

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On such perusal of the material on record, it is crystal clear that the appellant is the first defendant in the original suit filed by none other than his own daughters. The plaint averments do not make out that the plaintiffs possessed independent right, title or interest over the suit property inasmuch as the contents of the sale deed dated 26.02.2000 executed by the present appellant in favour of

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the contesting respondent would make it clear that it is the individual and self acquired property of the appellant herein.

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Having sold the property for a valuable

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consideration through a registered sale deed in the year 2000, egging up his daughters to file a suit in the year 2015 questioning the validity of the sale deed is nothing

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but a collusive attempt made by the first defendant through his daughters to somehow to avoid the sale which was validly executed about fifteen years earlier to filing of the suit.

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It is settled principles of law and requires no

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emphasis that in such suits, the Courts are required to deal with the rights of the parties with extra care and caution.

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Pertinently, the first defendant who is the appellant before this Court, as expected, did not contest the suit on merits, nor first defendant was cited as a witness by the plaintiffs to establish that plaintiffs also had the right, title and interest over the suit property.

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Crowning all these aspects of the matter, there

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is no other material on record, except the self serving testimony of the plaintiffs that in the suit property, plaintiffs had independent right, title and interest.

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It is also to be noted that even it is so, in the lifetime of the father, the plaintiffs did not have any right to institute a suit for partition. Therefore, cleverly, the suit has been framed in such a way that they are seeking cancellation of the registered sale deed executed by the first defendant in favour of the contesting respondent. These aspects of the matter has been dealt in detail by the learned Trial Judge while passing the impugned judgment dismissing the suit of the plaintiffs.

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Pertinent to note that it is the plaintiffs who filed the appeal before the First Appellate Court and to support the plaintiffs as an after thought, the first defendant who is the appellant before this Court had filed the cross objection.

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Cross objections was no doubt required to be dealt by the First Appellate Court in accordance with law. Though there is a reasoning recorded by the First Appellate Court with regard to the cross objections, there was no specific point raised by the First Appellate Court in considering the cross objections filed by the first defendant.

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It is also pertinent to note that mere non raising of the necessary points would not vitiate the judgment in toto as per the decision of the Hon'ble Apex Court relied on by the counsel for contesting respondent in the case of

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Nafees and Anr . supra.

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Thus, in the absence of any further contest by the plaintiffs, first defendant is now trying to serve the interest of the plaintiffs who themselves have not approached this Court with second appeal.

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Taking note of the fact that appellant has already parted away his right, title and interest by virtue

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of the registered sale deed dated 26.02.2000, cannot reagitate the issue of the validity of the sale deed especially in the absence of any second appeal filed by the plaintiffs who are none other than his own daughters.

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Thus, none of the grounds urged in the appeal memorandum would be sufficient enough to consider substantial questions of law raised in the appeal memorandum any further.

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