Smt G Nalini Vs Sharath Chandra

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 17.1.2013 PASSED IN R.A.NO.59/2008 ON THE FILE OF THE ADDL. DISTRICT JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.4.2008 PASSED IN

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OS.NO.126/1993 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN) & CJM, MANDYA.

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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

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challenging the judgment and decree dated 17.01.2013 passed in R.A.No.59 of 2008 by the learned Additional District Judge, Mandya.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendant Nos.2 and 3, respondent No.1 was the plaintiff, and respondent No.2 was defendant No.1.

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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 against the defendants for declaration of title and he is in possession and enjoyment of the suit schedule properties and

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consequently for cancellation of the registered sale deeds dated 14.07.1983 and 28.03.1989 executed by defendant No.1 in favour of defendant No.2. It is the case of the plaintiff that the suit schedule properties are the self-acquired properties of his father i.e., defendant No.1. Defendant No.1 executed a settlement deed in favour of the plaintiff on 28.03.1977. The plaintiff was a minor as of the date of execution of a settlement deed, by virtue of a settlement deed, the plaintiff became the absolute owner in possession of the suit properties. Defendant No.1 executed a registered sale deed in favour of defendant No.2 dated 14.07.1983 in respect of item No.2 of the suit schedule properties. Another registered sale deed dated 28.03.1989 was executed by defendant No.1 in favour of defendant No.3, in respect of suit item No. 1 of the suit schedule property. Defendant No.1 has unilaterally cancelled the settlement deed by executing the cancellation deed dated 07.03.1983, and the same is

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illegal. The sale deeds executed by defendant No.1 in favour of defendant Nos.2 and 3 are void. Hence, on these grounds, prays to decree the suit.

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Defendant Nos.2 and 3 filed a written statement contending that defendant No.1 was the absolute owner of the suit schedule properties. He sold item Nos.2 and 3 of the suit schedule property in favour of defendant Nos.2 and 3 under the different registered sale deeds. Defendant Nos.2 and 3 became the absolute owners of the said suit schedule properties by virtue of the registered sale deeds and they were put in possession of the suit schedule properties i.e., item Nos. 1 and 2. The plaintiff has no right, title or interest over the suit schedule properties. It is contended that the suit is hopelessly barred by limitation. There is no cause of action to file a suit for declaration of title and for cancellation of the registered sale deeds. Hence, on these grounds, prays to dismiss the suit against defendant Nos.2 and 3.

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The summons was served on defendant No.1. Despite service of summons, defendant No.1 remained unrepresented and was placed ex parte.

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

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1) Whether the plaintiff proves that due execution of settlement deed dated 28.03.1977 by the first defendant?

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2) Whether the plaintiff proves that cancellation of the settlement deed is invalid?

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3) Whether the sale deeds in favour of defendant Nos.2 and 3 are liable to be cancelled?

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4) Do the defendants prove that they have spent Rs.25,000/- and Rs.10,000/- to improve the schedule properties?

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5) Whether the suit is barred by time?

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6) Whether the plaintiff is entitled for the relief of declaration and possession?

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7) What decree or order?

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The plaintiff, to substantiate his case, examined himself

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as PW.1 and marked 2 documents as Ex.P1 and Ex.P2.

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In rebuttal, defendant Nos.3 and defendant No. 2 were examined as DW1 and DW2 respectively, and marked 10 documents as Ex.D1 to D10. The trial court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue Nos. 3 to 5 in the negative issue No.6 partly affirmative and issue No.7 as per the final order. The suit of the plaintiff was partly decreed with costs and it is declared that the plaintiff is the owner of the suit schedule properties and the sale deeds of contesting defendant Nos.2 and 3 are not binding on the plaintiff and dismissed the suit for declaration regarding the cancellation of the registered sale deeds dated 14.07.1983 executed in favour of defendant No.2 and the registered sale deed dated 28.03.1989 executed in favour of defendant No.3. It is also declared that the plaintiff is the owner of the suit schedule properties by virtue of the settlement deed dated 28.03.1977. It is

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also declared that the sale deeds dated 28.03.1989 and 14.07.1983 executed by defendant No.1 in favour of defendant Nos.3 and defendant No.2 are not binding on the plaintiff and suit of the plaintiff for settlement of account was dismissed.

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Defendant Nos.2 and 3 and the plaintiff, aggrieved by the judgment and decree dated 19.04.2008, passed in O.S.No.126/1993, preferred an appeal in R.A.No.59 of 2008 and a cross objection/appeal on the file of the learned Additional District Judge, Mandya.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration and additional issues:

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1) Whether the plaintiffs are entitled to produce additional documentary evidence as prayed in I.A.?

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2) Whether the defendants prove that the finding of the trial Court on issue No.1 and 2 with regard to the settlement deed dated 28.03.1977 and cancellation of settlement

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deed are perverse, capricious and against to the evidence on record and therefore, judgment and decree of the trial Court is liable to be set aside?

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3) Whether the plaintiffs prove that the finding of the trial Court so far as it relates to refusing the decree for possession is perverse, capricious, illegal and against to the evidence on record?

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4) What order?

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Additional issue Nos.1 and 2:

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1) Whether the plaintiff is entitled for possession of the schedule property?

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2) Whether the defendants prove that suit is barred by limitation?

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point No.1, additional issue No.1 and point No.3 in the affirmative, point No.2 and additional issue No.2 in the negative and point No.4 as per the final order. The appeal of defendant Nos.2 and 3 was dismissed and the crossobjection/appeal filed by the plaintiff was allowed, and

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held that defendant No.2 and defendant No.3 shall hand over the possession of the schedule property to the plaintiff within 3 months from the date of the judgment. There shall be a separate enquiry with regard to the mesne profits payable to the plaintiff from the date of suit till the date of possession and rest of the judgment passed by the trial Court was confirmed.

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Defendant Nos.2 and 3, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for defendant No.2 and defendant No.3, and the learned counsel for the plaintiff.

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Learned counsel for defendant No.2 and defendant No.3 submits that the plaintiff has filed an application under Order VI Rule 17 for amendment to the plaint and also an application for production of additional evidence. The First Appellate Court after hearing the

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learned counsel for the parties allowed the application for amendment to the plaint and the plaintiff was permitted to carry out the amendments to the plaint. The first appellate court has not given opportunity to defendant No.2 and defendant No.3 to file an additional written statement. He also submits that the plaintiff has filed an application for production of additional evidence. The trial Court, while passing the judgment on merits, allowed the said application and without complying Order XLI Rule 28 of the CPC, placed a reliance on the said documents, and passed the impugned judgment. He submits that the impugned judgment passed by the first appellate court is not in compliance with Order XLI Rule 28 of the CPC, and further no opportunity was provided to defendant No.2 and defendant No.3 to file an additional written statement. Hence, on these grounds, he prays to remit the matter to the first appellate court with a liberty to defendant No.2 and defendant No.3 to file an additional

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written statement and permit the plaintiff to lead further evidence on the documents produced along with an application for production of additional evidence and in rebuttal, the defendants may be permitted to lead the evidence.

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Per contra , learned counsel for the plaintiff supported the impugned judgments and contended that the first appellate court has provided sufficient opportunity to defendant No.2 and defendant No.3 to file an additional written statement. Despite granting sufficient opportunity, defendant No.2 and defendant No.3 did not file an additional written statement. The first appellate court has rightly framed the additional issues and passed the impugned judgment. He also submits that the first appellate court has allowed the application for production of additional documents and rightly relied on the said documents. The judgment and decree passed by the first appellate court is just and

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proper and do not call for any interference at the hands of this court. Hence, prays to dismiss the appeal.

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This Court vide order dated 18.06.2014, admitted the appeal to consider the following substantial questions of law:

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1) Whether the first appellate court was justified in allowing IA filed under Order 6 Rule 17 of the CPC by the first respondent and decreeing his suit without appreciating the fact that the same was barred by time and that too without affording an opportunity to the appellants to lead further evidence on the amended pleadings?

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2) Whether the courts below were justified in looking into the certified copy of the settlement deed at Ex.D1 when no foundation was laid by the plaintiff to lead secondary evidence that too in the light of the fact that the plaintiff has failed to prove its execution as required under law?

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Perused the records and considered the submissions of the learned counsel for the parties.

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Reg. Substantial question of law No.1:

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The plaintiff filed a suit against the defendants for declaration of title and permanent injunction on the ground that the plaintiff had acquired a title by virtue of a settlement deed as per Ex.P1. Defendant No.1 had no right, title or interest over item Nos.1 and 2 of the suit schedule properties to execute a registered sale deed in favour of defendant No.2 and defendant No.3. As per the settlement deed, the plaintiff is the absolute owner of the suit schedule properties. The sale deeds executed by defendant No.1 in favour of defendant No.2 and defendant No.3 are not binding on the plaintiff. The plaintiff to substantiate his case, produced the documents Ex.P1 is the copy of the settlement deed. Ex.P2 is the cancellation of settlement deed which discloses that defendant No.1 unilaterally cancelled the settlement deed.

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In rebuttal, defendant No.3 was examined as DW.1.

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She reiterated the written statement averments in the

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examination-in-chief and defendant No.2 was examined as DW.2 and got marked 10 documents as Ex.D1 to D10. The trial Court, after recording the evidence, decreed the suit of the plaintiff with costs, and declared that the plaintiff is the owner of the suit schedule properties by a settlement deed dated 28.03.1977 and declared that the sale deeds dated 14.07.1983 and 28.03.1989 executed by defendant No.1 in favour of defendant No. 2 and defendant No.3 respectively are not binding on the plaintiff.

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Defendant No.2 and defendant No.3 aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.59 of 2008 and the plaintiff has also filed a cross objection under Order XLI Rule 22 of the Code of Civil Procedure. During the pendency of the appeal before the first appellate court, the plaintiff filed an application for amendment to the plaint. The said application came to be allowed. The

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plaintiff carried out the necessary amendment in the plaint.

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I have perused the order sheet of the first appellate court. The first appellate court without providing an opportunity to defendant No.2 and defendant No.3 to file an additional written statement, has framed additional issues on 17.01.2012 and posted the matter for recording additional evidence on 31.01.2012.

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From the perusal of the records, it does not disclose that after framing an additional issue, the plaintiff examined himself as PW.1 before the first appellate court and he was cross examined and thereafter the plaintiff filed an application for production of additional evidence. The first appellate court while passing a judgment has considered the application for production of additional evidence and allowed the application and taken the said additional documents on record. When an application for production of additional evidence is allowed, the first appellate court could have recorded

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the evidence under Order XLI Rule 28 of the CPC. The first appellate court, without recording the evidence on the additional documents, has placed a reliance on the said documents and further, no opportunity was provided to defendant Nos.2 and 3 to lead a rebuttal evidence on the amended pleadings. The procedure adopted by the first appellate Court in disposing of the appeal is irregular and illegal. Hence, on these grounds, alone itself the impugned judgment passed by the first appellate court is liable to be set aside.

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In view of the above discussion, I answer substantial question No.1 in the negative.

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Reg. Substantial question of law No.2:

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The substantial question goes to the merits of the case. This Court has not decided the appeal on merits. This Court has decided this appeal on technical grounds. As the matter requires reconsideration by the first appellate court, the substantial question No.2 does not

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arise for consideration at this point of time. The said issue shall be decided by the first appellate court. The judgment and decree passed by the First appellate court is in violation of the principles of natural justice. Thus, substantial question of law No.2 does not arise for consideration.

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