Sri M N Narendra Vs Sri M S Ananda

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER PASSED BY LEARNED DISTRICT JUDGE IN CHIKKABALLAPURA UNDER THE ORIGINAL OF ANNEXURE-F CONDONING THE DELAY IN FILING THE APPEAL DTD:01.12.2016 AND A FINAL ORDER IN M.A.NO.21/2015 DTD:24.03.2017 UNDER ORIGINAL OF ANNEXURE-G AND ACCORDINGLY DISMISS THE APPEAL & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 02.07.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV ORDER

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This writ petition is filed challenging the order dated 24.03.2017 passed in M.A.No.21/2015 by the Principal

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District and Sessions Judge, Chikkaballapura (for short, 'the Appellate Court').

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Sri.H.R.Anantha Krishna Murthy, learned

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counsel for the petitioners submits that one Sheshappa had 3 sons namely, Shama Rao, Narayana Rao and Srinivasa Rao. It is submitted that the deceased Sheshappa was a holder of Shanbhog office and the lands were attached to the said office as emolument. It is further submitted that after the death of Sheshappa, Smt.Lakshmi Narasamma was made as Shanbhog of Amanik Mavukere and Manchanabele Firka by an order of the Assistant Commissioner. It is also submitted that the name of Narayana Rao has been entered as Shanbhog in Baraberthi register of Chikkaballapura Taluk and the lands were in his possession and cultivation. The said Narayana

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Rao died in the year 1963 and in the year 1978, M.Shama Rao, with an intention to grab the entire property, made a false claim taking advantage of the death of Narayana Rao, by filing a suit for partition contending that the entire lands were allotted to his share and he is in exclusive possession of the same. Thereafter, the Village Offices Abolition Act, 1961, came into force. It is contended that Shama Rao is a registered Shanbhog of Gajjegunte of Siddlaghatta Taluk and the lands were granted in his favour vide order dated 20.02.1994 and Narayana Rao was not granted any land. It is further contended that the Tahsildar, vide order dated 12.09.1983 re-granted the lands in favour of the petitioners. The said order was assailed in an appeal which came to be dismissed. A writ petition came to be filed challenging the said order of dismissal which was allowed and the matter was remanded back to the Appellate Court to offer a reasonable opportunity to the parties and pass order. It is also contended that the Tahsildar, after remand, re-

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granted the lands in favour of the petitioners which was challenged by the respondents in an appeal with delay. The Appellate Court condoned the delay and allowed the appeal by remanding the matter back to the Tahsildar without any justifiable reason. It is submitted that the Appellate Court had all the records and it would have decided the appeal on merits. The remand without framing any issues and without there being any application of the appellant for production of additional documents, is impermissible. In support of his contentions, he placed reliance on the decision of the Hon’ble Supreme Court in the case of UTTARADI MUTT Vs. RAGHAVENDRA SWAMY MUTT¹ . Hence, he seeks to allow the petition.

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Though notice is served, there is no

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representation for the respondents.

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1 (2018) 10 SCC 484

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I have heard the learned counsel for the

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petitioners and meticulously perused the material available on record.

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The material on record indicates that one

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Sheshappa had three sons Shama Rao, Narayana Rao and Srinivasa Rao. Venkatalakshmamma is the wife of Sheshappa. Shama Rao died and his son M.S.Ananda was the respondent No.1 in these proceedings and now he is represented by his legal heris. Lakshmikantamma is the daughter of Narayana Rao, Nanjundaiah is his son and Narendra is the grandson. The prepositor Sheshappa was the holder of Shanbhog office and certain lands were attached to the said office as emolument. After the death of Sheshappa, Lakshmi Narasamma, his wife was made as Shanbhog of Amanik, Mavukere and Manchanabele Firka by the Assistant Commissioner and the Competent Authority. The records indicate that the name of Narayana Rao has been entered as Shanbhog in Baraberthi register

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of Chikkaballapura Taluk and from the date of his appointment, he was in possession of the lands till his death. It is averred that in the year 1978, Shama Rao, with an evil intention made a false claim, taking advantage of the death of Narayana Rao and filed a suit contending that there was a partition in the family and the entire lands were allotted to his share and he is in exclusive possession of the same. The suit came to be decreed recording that it would be in force only till the Government decides the grant. The legal heirs of Narayana Rao assailed the decree in R.A.No.64/1989 and the appeal came to be dismissed. The legal heirs of Shama Rao instituted execution proceedings in Ex.P.No.36/1983 contending that the decree of the Trial Court is violated and the Executing Court dismissed the execution petition holding that the decree has been extinguished and there is no enforceable decree. The legal heirs of Shama Rao assailed the said order in C.R.P.No.804/1985. The said petition came to be dismissed. Thereafter, another

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execution petition was filed in Ex.P.No.30/1986 which was also dismissed as not maintainable.

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The records further indicate that Shama Rao is a registered Shanbhog of Gajjegunte of Siddlaghatta Taluk and the lands were granted vide order dated 20.02.1994. The said fact, according to the petitioners makes it clear that Narayana Rao and Shama Rao were Shanbhogs in different places and they are entitled to register in respect of the places where they were officiating as Shanbhogs. It is also averred that vide order dated 30.11.1987, 1/3^rd share in Sy.No.72 of Amani Manchanabele kere Village namely Sy.No.193/1 measuring 7 acres 3 guntas, 26 guntas in Sy.No.15 and 1 acre 33 guntas in Sy.No.145 were re-granted in favour of Lakshmi Narasamma, w/o Narayana Rao.

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It is contended that the Tahsildar vide order

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dated 12.09.1983 granted lands in favour of the petitioners and the said order was assailed in

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M.A.No.3/1988 which came to be dismissed on

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11.04.1990. Being aggrieved, the writ petition in W.P.No.1565/1990 was filed which was allowed and the

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orders impugned were set aside and the matter was remitted back to the Tahsildar, Chikkaballapura Taluk, to afford opportunities to the parties and pass order. It is further contended that after the remand, the Tahsildar provided opportunities to the parties, heard them and passed an order dated 07.05.2015 wherein the lands were re-granted in favor of the petitioners. Being aggrieved, Sri.M.S.Ananda, deceased respondent No.1 herein preferred an appeal in M.A.No.21/2015 along with an application seeking condonation of delay. The Appellate Court condoned the delay, allowed the appeal and the matter was remitted back to the Tahsildar under the impugned order.

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The Appellate Court, while remanding the

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matter, at paragraph 16 of its judgment has observed that

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the subject matter is under the Karnataka Certain Inams Abolition Act, 1977,(For short the ‘Act’) and the Tahsildar has to decide who is the original barawardar in the family of the appellant and the respondents, whether the legal heirs are entitled to re-grant and whether the original prepositor of the appellant and the respondents is a registered Shanbhog of the Inam lands. It is required to be noticed that the dispute is not under the provisions of the Act but under Karnataka Village Offices Abolition Act, 1961.

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It would be useful to refer to the decision of the Hon’ble Supreme Court in UTTARADHI MUTT referred supra at paragraphs 18 and 19 held as under:

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“18. In the present case, the High Court has not recorded any special reasons as to why the parties should be relegated before the “trial court” to redecide the suit. The only reason, which, presumably, weighed with the High Court, is that it was necessary to find out the truth, as it is the duty of the court. That could be done even by directing the first appellate court to record

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evidence, which it was competent to do while hearing the first appeal, had it allowed the applications under Order 41 Rule 27 CPC by the respondent-defendant. For that, as per Rule 25 of Order 41 of the CPC, the High Court could have framed the issues and referred them for adjudication before the first appellate court, against whose decree the second appeal was preferred before the High Court. It may be useful to advert to Rules 28 & 29 of Order 41 of CPC. The same read thus:

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“ 28. Mode of taking additional evidence .— Wherever additional evidence is allowed to be produced, the appellate court may either take such evidence, or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the appellate court.

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29. Points to be defined and recorded .—Where additional evidence is directed or allowed to be taken, the appellate court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.”

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19. The High Court could have issued directions to the first appellate court to determine any question of fact including the existence and

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genuineness of the additional evidence or for that matter, whether the contents of the said documents had been duly proved by the party relying thereon. After recording the evidence in support of such relevant matters as the High Court may have directed, the first appellate court could proceed to try such issues and return the evidence to the High Court together with its findings thereon within the prescribed time. Such a course was permissible in terms of Rule 28 of Order 41 of CPC. And on receipt of the report, the High Court could then consider the substantial questions of law already framed while admitting the second appeal and finally decide the same on all issues.”

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10. The Co-ordinate Bench of this Court in the case

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of SHANTHAVEERAPPA Vs. K.N.JANARDHANACHARI² ,

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at paragraphs 7 to 12 has held as under:

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“7. Point No. (2):— A reading of order 41 rules 27, 28 and 29 CPC make it clear that, whenever additional evidence is allowed to be produced, the Appellate Court may either lake such evidence or direct the Court from whose decree the appeal is preferred or any other subordinate

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2 ILR 2007 KAR 1127

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Court, to take such evidence and to send it to the Appellate Court. This is the requirement of law as contained in Rule 28. On receipt of such material, after hearing the parties, the Appellate Court shall pronounce the judgment on merits. The scheme of these provisions do not provide for setting aside a well considered judgment and the decree of the Trial Court solely on the ground that the application filed for additional evidence is allowed. The Appellate Court should remember that merely because it decide to admit additional evidence under this rule, it should not set aside the judgment and decree of the Trial Court and remand the case to the Trial Court, unless it falls within Rule 23.

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8. Point No. (3):— The question is under what circumstances the Appellate Court can exercise its power of remand. The Code of Civil Procedure contains specific provisions conferring power on the Appellate Court to remand a case under various circumstances. They are contained in order 41 rule 23 and Rule 23 A which read as under:—

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“23. Remand of case by Appellate CourtWhere the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in

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appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original Trial shall, subject all just exceptions, be evidence during the Trial after remand.

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23A. Remand in other cases.- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23”.

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9. Order 41 Rule 23 CPC applies to a case where a suit is disposed of upon a preliminary point and the said decree is reversed in appeal. In other words, when the Trial Court has not decided the case on merits or when it has not recorded evidence on all issues and pronounced its judgment on all issues but disposed of the suit upon a preliminary point, then the Appellate Court,

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even if it wants, is unable to pronounce judgment on merits. Therefore, in such circumstances, if the Appellate Court reverses the finding of the Trial Court on preliminary issue, it has no option except to remand the suit to the Trial Court for Trial and disposal on merits. In other words, it is a case of an open remand. However, similar power is conferred on the Appellate Court under Rule 23A, even if the Trial Court has disposed of the suit on merits and the said judgment is reversed in appeal and the Appellate Court feels a re-trial is necessary it has the jurisdiction to order for an open remand.

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10. In cases where the Trial Court has omitted to frame or try any issue or to determine any Question of fact, the Appellate Court if necessary frame issues and refer the same for Trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required with a direction to return the evidence to the Appellate Court together with findings thereon and the reasons therefor within a time to be fixed by the Appellate Court. On receipt of such finding the Appellate Court may dispose of the appeal on merits. Here in would be a case of limited remand and not an open remand. In case where the

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Appellate Court feels issues have to be resettled and that the Trial Court has proceeded wholly upon some ground other than that on which the Appellate Court proceeds, still the evidence upon the record is sufficient the Appellate Court without resorting to an order of remand resettle the issues and pronounce judgment on merits on all issues. Therefore, it is clear the Legislature has provided for all contingencies.

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11. An appeal is a continuation of the original proceedings. In effect the entire proceedings are before the Appellate Court and it has power to reappreciate the evidence. It has the power to amend the pleadings, frame issues, resettle issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders. It can also take note of subsequent events. In addition to the power of Trial Court, it has been vested with the power of remand. Power to set aside, modify, reverse and affirm the judgment of the Trial Court. It also has the power to entertain Cross Appeal and power to grant relief to a party to the proceedings who has not preferred appeal and set aside the findings recorded against the respondent in the appellant's

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appeal. Thus, the power of the first Appellate Court is unlimited. The reason being that it should be able to meet any contingency or situation and pronounce judgment finally in order to do complete justice between the parties. It cannot plead or feel helpless to meet any situation arisging in a case to resolve the dispute between the parties. That is the ambit and scope of the jurisdiction of the first Appellate Court. Therefore, the legislature has entrusted a very important duty to the first Appellate Court, and it is for that Court to decide finally all questions of fact on which the disposal of the suit might depend. To order retrial of a case is a serious matter and may mean considerable waste of public time. An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. The endeavor should be to dispose of the case finally by the first Appeallate Court itself. When the Trial Court after considering the evidence, has come to a conclusion, the Appellate Court should not ordinarily remand the case, it should see first whether it can dispose of the case itself under order 41 Rules 24 to 27 CPC. Only if it is not possible to do so and it is necessary in the interests of justice to remit the suit, remand should be resorted to. When additional evidence is

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tendered in appeal, the Court should act under rule 28 and not remand the whole case under this rule. Such an order can be passed only in exceptional cases as, for example, where there had been no real Trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered material prejudice on that account. Remand is not meant to provide fresh oportunity to a party to litigate. An order of remand could be made only if the finding of the lower Court is reversed in appeal. Where there is no reversal of the finding, the Appellate Court cannot proceed under this rule and remand the case for a fresh inquiry on the ground that a finding is necessary on a point not dealt with in the judgment or that the inquiry has been inadequate. Aremand for the purpose of adducing fresh evidence to explain the evidence on record, where it was unambiguous or to cover up deficiencies or to fill in gaps is not warranted by this rule. If an issue can be decided by the Appellate Court on admitted facts, the empty formality of remand must be eschewed to advance the cause of justice.

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12. Unfortunately, the first Appellate Courts are not appreciating these statutory provisions in proper perspective. Though the first Appellate

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Courts are vested with this unlimited power, greater the power, greater should be the care and caution which should be exercised by the Appellate Court in exercise of such power. Especially, the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first Appellate Court to decide the case on merits finally. When the Trial Courts are over burdened with the cases, the first Appellate Courts which are better placed and presided over by Judges with greater experience, should take upon themselves the responsibility of recording evidence and decide the case on merits, thus shortening the length of litigation. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. Therefore, it is impressed upon the first Appellate Courts, that they would be doing a great service in the course of fight against delay in disposal of cases, by accepting the challenge, exercise their appellate power judiciously, receive and record additional evidence and decide the cases finally. They should avoid this temptation of remand on some pretext or other. They should demonstrate their resolve to shoulder responsibility and commitment in rendering justice to the litigant who

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is knocking at the door of temple of justice patiently in anticipation of a just decision. Judges should decide the lis. This would be one of the ways of not only reducing the delay in disposal of Cases, but also avoiding docket explosion, within the existing legal frame work.”

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11. The aforesaid enunciation of law laid down by

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the Hon’ble Supreme Court and this Court makes it clear that the power to remand is to be exercised sparingly and in rare cases. It is held that the Appellate Court is vested with power to amend the pleadings, frame the issues, resettle the issues, delete issues, receive evidence by way of additional evidence, record evidence, summon witnesses and documents, order for commission, pass interim orders, etc. It is further held that the legislature has entrusted the Appellate Court with such powers in order to ensure that the Appellate Court is enabled to meet any contingency and do complete justice to the parties. It is also held that appeal is a continuation of the original proceedings and ought to be carried in such a way instead

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of resorting to remand as a matter of course, which would

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lead to wastage of public time and resources.

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In the instant case, the primary contention of

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the petitioners is that Annexure-A is the baraberthi register which indicates the name of Narayan Rao and other evidence on record including the orders of the Authorities as well as this Court are sufficient to decide the correctness of the re-grant order of the Tahasildar. In my considered view, the said contention is required to be accepted and the matter is required to be remanded back to the Appellate Court to re-consider the appeal on merits. It is clear that the entire records were available before the Appellate Court and Appellate court ought to have decided the appeal on its merits by considering the pleadings, formulating issues and receiving evidence if necessary. Furthermore, it is to be noticed that the dispute in the instant case spans over three decades, hence, the remand of the matter by the Appellate Court may not be proper

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