Sri Chikkamarappa Vs Sri Anjanappa

SRI CHIKKAMARAPPA AGED ABOUT 87 YEARS S/O CHIKKA MARITHAMMANNA R/AT MALLAHALLI VILLGE SIDLAGHATTA TALUK REPRESENTED BY ITS PA HOLDER BY NAME MUNICHANNAPPA

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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S/O MUNIKALAPPA AGED ABOUT 55 YEARS R/AT MALLAHALLI VILLAGE SIDLAGHATTA TALUK

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(BY SRI. R B ANAND, ADVOCATE)

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AND:

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…APPELLANT

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SRI ANJANAPPA AGED ABOUT 48 YEARS S/O LATE A K NARAYANAPPA R/AT ABLOOD VILLAGE SIDLAGHATTA TALUK

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SRI DODDATHIRUMALAPPA AGED ABOUT 43 YEARS S/O A K NARAYANAPPA

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R/AT ABLOOD VILLAGE SIDLAGHATTA TALUK

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SRI CHIKKATHIRUMALAPPA AGED ABOUT 38 YEARS S/O LATE A K NARAYANAPPA R/AT ABLOOD VILLAGE SIDLAGHATTA TALUK

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SRI MUNITHIRUMALAPPA AGED ABOUT 33 YEARS S/O A K NARAYANAPPA R/AT ABLOOD VILLAGE SIDLAGHATTA TALUK

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SMT CHIKKA VENKATAMMA AGED ABOUT 63 YEARS W/O LATE A K NARAYANAPPA R/AT ABLOOD VILLAGE SIDLAGHATTA TALUK

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SMT ANJANAMMA AGED ABOUT 49 YEARS W/O BYATHARAYAPPA R/AT CHIKKADASENAHALLI VILLGE SIDLAGHATTA TALUK KOLAR DISTRICT

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SMT ERAMMA AGED ABOUT 45 YEARS W/O MUNIYAPPA R/AT MARAVAHALLI VILLAGE SIDLAGHATTA TALUK

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SMT VENKATALAKSHMAMMA AGED ABOUT 39 YEARS W/O SRINIVAS R/AT NAKUNDA VILLAGE CHINTAMANI TALUK KOLAR DISTRICT

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SRI. NAGRAJ S/O JODI NAGAPPA AGED MAJOR R/AT ABLUDU GRAMA SIDLAGHATTA TALUK KOLAR DISTRICT.

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…RESPONDENTS

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(BY SRI. G BALAKRISHNA SHASTRY., ADVOCATE FOR R1 TO R8 SRI. V NAGAREDDY & SRI. PRATHAP KUMAR K S., VNR ASSTS, FOR R9)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 23.11.2012 PASSED IN R.A.NO.15/2005 ON THE FILE OF ITINERY SENIOR CIVIL JUDGE, AND JMFC, SIDLAGHATTA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 31.1.2005 PASSED IN OS.NO.385/1997 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), SIDLAGHATTA.

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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 23.11.2012 passed in R.A.No.15 of 2005 by the itinery Senior Civil Judge and JMFC, Sidlaghatta.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellant

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was defendant No.1 and the respondents No.1 to 8 were the legal representatives of the deceased plaintiff and respondent No.9 was defendant No.2.

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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 the relief of a declaration and a consequential relief of permanent injunction. The land bearing Survey No.63 totally measures 5 acres 19 acres is a government land, out of which 2 acres 29 acres was granted in favour of the plaintiff in 1970 under darkasth. The remaining land is phut kharab land which is part and parcel of Survey No. 63. The entire extent of land was in possession and enjoyment and they were cultivating the same previously before grant. The plaintiff with the hard work and spending huge amount made it fertile from the date of grant. The Khata was mutated in the name of plaintiff. He was paying kandayam to the Government. One Akkalappa filed a suit in O.S.No.27

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of 1987 against the plaintiff regarding land bearing Survey No.77 for the relief of permanent injunction. In the said suit, Akkalappa admitted the land bearing Survey No. 63 belongs to the plaintiff. The said suit was partly decreed, and partly dismissed vide judgment dated 31.08.1994. The defendant is the absolute owner and in possession of the suit schedule property. Defendant No.1 being the neighbouring land owner towards eastern and western side of the suit property. The defendants have no right, title or interest or possession over the suit schedule property, they are trying to obstruct the cultivation of the suit schedule land. Hence, a cause of action arose for the plaintiff to file a suit for a declaration and a permanent injunction. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement contending

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that himself and his son are in possession and enjoyment to the extent of 1 acre 30 guntas for last

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more than 50 years. The disputed survey number totally measures 5 acres 19 guntas. As per recent survey by the ADLR, Chikkaballapur, the measurements are 5 acres 26 guntas, out of which 1 defendant is in possession of 1 acre 30 guntas, the remaining extent is in possession and enjoyment of Akkalappa since more than 40 years. The kharab land which is in possession and adjacent to the defendant No.1's land. The defendant No.1 invested

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a huge amount and leveled up the disputed land. It is contented that the defendant made a representation to the Government and it issued an endorsement. The defendant No.1’s son-in-law has preferred an appeal before the Assistant Commissioner, who granted an interim order of status quo. The plaintiff has suppressed the material fact and filed the present suit. Hence, the suit filed by the plaintiff is not maintainable and liable to be dismissed.

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Accordingly, prays to dismiss the suit against defendant No.1.

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Defendant No.2 filed a written statement contending that the suit survey number totally measures 2 acres and 56 guntas, out of which, defendant No.2 is in possession to the extent of 30 guntas and 3 guntas. The plaintiff is in possession to the extent of 1 acre 35 guntas towards extreme northern side Survey No. 63. The remaining is in possession of the plaintiff and others. Hence, prays to dismiss the suit against defendant No.2.

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

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i. Whether the plaintiff proves that Sy.No.63 is an extent of 5-19 gunta. In the year 1970 2.29 guntas is granted to the plaintiff and the remaining land is put karab and thus plaintiff becomes the absolute owner of the suit property?

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ii. Whether the plaintiff proves that plaintiff is in lawful possession of suit property as on the date of the suit?

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iii. Whether the plaintiff further proves that defendants lawfully interfering with the lawful possession and enjoyment of suit property?

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iv. Whether 2^nd defendant proves that he is in possession of block No.2 and 5 of Sy.No.63?

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v. Whether 1^st defendant proves that he is in possession and enjoyment of 1- 35 guntas in Sy.No.63 and the remaining land in Sy.No.63 is in possession and enjoyment of 2^nd defendant, Akkalappa and Karagappa?

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vi. Whether the plaintiff is entitle for the relief of declaration and permanent injunction?

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vii. What order or decree?

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The plaintiff to substantiate his case examined

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himself as PW1, examined three witnesses as PW2 to PW4 and marked 12 documents as Exhibit P1 to

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Exhibit P12. In rebuttal, General Power of Attorney

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holder of defendant No.1 was examined as DW1. Defendant No.2 was examined as DW2, examined four witnesses as DW3 to DW6 and marked 18 documents as Exhibit D1 to Exhibit D18. The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, decreed the suit of the plaintiffs vide judgment dated 23.11.2012. Defendant No.1, aggrieved by the judgment and decree passed in the suit in O.S.No. 385 of 1997 preferred an appeal in R.A.No. 15 of 2005 on the file of the learned Itinery Senior Civil Judge and JMFC Sidlaghatta.

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

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i. Whether the trial Court is justified in holding that the plaintiff is the absolute

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owner and in possession of suit

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schedule property?

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ii. Whether the judgment and decree of

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the trial Court warrants interference?

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iii. What order?

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The first of the appellate court, after re-appreciating the entire evidence on record, dismissed the appeal vide judgment dated 23.11.2012, confirming the judgment and decree passed by the trial Court.

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Defendant No.1, aggrieved by the impugned judgments, filed this regular second appeal.

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Heard the arguments of the learned counsel for defendant No.1 and learned counsel for the plaintiffs.

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Learned counsel for defendant No.1 submits that the first appellate court being a final fact finding court is required to re-appreciate the entire evidence on record, and frame the proper points for adjudication. He submits that the first appellate court has not

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discussed the evidence led by the parties, and the documents produced by both the parties. In one paragraph, the first appellate Court has disposed of the appeal, confirming the judgment and decree passed by the trial Court.

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Further, he also submits that the first appellate court has not answered each issue framed by the trial Court and proper points for consideration were not framed. Thus, the judgment and decree passed by the first appellate court is contrary to Order XLI Rule 31 of CPC and the proposition of law 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 these grounds, he prays to allow the appeal by setting aside the judgment and decree dated 23.11.2012 passed in R.A.No. 15/2005 and remit the matter to the first appellate court with a direction to pass the appropriate judgment in compliance with Order XLI Rule 31 of the CPC.

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Per contra , learned counsel for the legal representatives of the plaintiff supported the impugned judgment, and contended that the first appellate court has re-appreciated the entire evidence on record and has rightly passed the impugned judgment. Hence, prays to dismiss the appeal.

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This Court on 08.07.2016, admitted the appeal to consider the following substantial question of law:

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i. Whether the courts below are justified in decreeing the suit of the plaintiff for declaration and injunction ignoring the material documents –Ex.D16 under which the land was granted in favour of the defendant by the regularisation deed under the provision of Rule 108D(ii) of the Karnataka Land Revenue Rules, 1966?

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ii. Whether the courts below are justified in decreeing the suit of the plaintiff without looking to the material

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documents Exs.P10 and P11, which clearly indicated that the land which was granted to the plaintiff was phodi as consisting only 2 acres 28 guntas and nothing more?

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iii. Whether the courts below are justified in decreeing the suit of the plaintiff in the facts and circumstances of the present case?

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Reg. Substantial questions of law No.3:

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The original plaintiff filed a suit against the defendants for a declaration and a consequential relief of permanent injunction contending that the land bearing Survey No. 63 totally measures 5 acres 19 guntas is a Government land, out of which, 2 acres 29 guntas granted in favour of the plaintiff in 1970 under darkhast and the remaining land is phut karab land, which is a part and parcel of Survey No.

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The Khata was mutated in the name of the plaintiff. One Akkalappa filed a suit in OS No. 27 of

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1997 against the plaintiff regarding the land bearing Survey No. 77 for the relief of permanent injunction. The said suit was partly decreed, and partly dismissed on 31.08.1994.

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Defendant No.1, a neighboring land owner towards the eastern and western side of the property has no right, title or possession over the suit schedule property. The defendant denied the case of the plaintiffs and contended that defendant No.1 is in possession and enjoyment of the suit schedule property. Defendant No.2 also denied the averments made in the plaint and contended that defendant No.2 is in possession of land to an extent of 30 guntas is Survey No.63 and the remaining is in the possession of the plaintiffs and others.

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The plaintiffs to substantiate their case, original plaintiff was examined as PW.1, examined three witnesses as PW2 to PW4 and marked 12 documents.

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In rebuttal, the POA holder of defendant No.1 was examined as DW.1, defendant No.2 examined himself as DW2, examined 4 witnesses as DW3 to DW6 and marked documents Exhibit D1 to Exhibit D18. The trial Court, after appreciating the entire evidence on record, decreed the suit of the plaintiffs vide judgment dated 31.01.2005. The defendant No.1, aggrieved by the judgment and decree passed in the said suit, preferred an appeal in R.A.No.15 of 2005.

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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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i. Whether the trial Court is justified in holding that the plaintiff is the absolute owner and in possession of suit schedule property?

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ii. Whether the judgment and decree of the trial Court warrants interference?

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iii. What order?

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From the perusal of the points for consideration framed by the first appellate court, it is clear that the first appellate court has not properly framed the points for adjudication as per Order XLI Rule 31 of the CPC. Further, the first appellate court, except incorporating the arguments canvassed by both the counsels, extracting depositions, portions of deposition of PW1 to PW4 and referring to the documents produced by both the parties, has confirmed the judgment and decree passed by the trial Court. The first appellate court has not assigned any reasons while passing the impugned judgment. The first appellate court being a final fact finding court, is required to re-appreciate the entire evidence, and frame properly the points for adjudication, and answer each issue framed by the trial Court.

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From the perusal of the judgment passed by the first appellate Court it is not in consonance with Order XLI

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Rule 31 of the CPC. The Hon'ble Apex Court in the

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case of H.Siddiqui (D) by LRs. (referred supra) has framed the guidelines for dealing with the appeal under Section 96 of the Code of Civil Procedure, which reads as under:

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“18. … … 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 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 judgment and decree passed by the first appellate court is contrary to the provisions of Order XLI Rule 31 of the CPC and judgment of the Hon'ble

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Apex Court in the case of H.Siddiqui (D) by LRs.

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(referred supra). Hence, on these grounds, the

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judgment passed by the first appellate court in R.A.No. 15 of 2005 is liable to be set aside.

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As observed above, the matter requires reconsideration by the first appellate Court, Hence, I answer substantial question of law No.3 in the negative. This Court is of the opinion, not to express any opinion on the merits of the case, as substantial questions No.1 and 2 touches upon the merits of the case.

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In view of the above discussion, I proceed to pass the following order:

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ORDER

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(i) This Regular Second Appeal is allowed .

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(ii) The judgment and decree passed in Regular Appeal No.15 of 2005 dated 23.11.2012 by the learned Itinerary

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Senior Civil Judge and JMFC, Sidlaghatta, is set aside.

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(iii) R.A. No.15 of 2005 is restored to its original file.

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(iv) The First appeal is remanded to the First Appellate Court for consideration afresh in accordance with law.

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(v) The First Appellate Court is directed to dispose of R.A. No.15 of 2005 in compliance with the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908, by framing the proper points for its consideration and by assigning the detailed reasons;

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(vi) The Parties are directed to appear before the First Appellate Court on 30.03.2026 without awaiting any further notice from the Court;

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(vii) The Office is directed to transmit the records to the First Appellate Court, forthwith;

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(viii) All the contentions of the parties are kept open.

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(ix) No order as to the costs.

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(x) In view of the disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are accordingly disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS CT:KHV

Sri Chikkamarappa v. Sri Anjanappa

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Sri Chikkamarappa v. Sri Anjanappa

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