Karnataka High Court

Sri Shivanna vs Sri Siddalingappa on 18 December, 2021

Bench: R. Nataraj

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 18TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MR. JUSTICE R. NATARAJ

 MISCELLANEOUS SECOND APPEAL NO.25 OF 2013 (RES)

BETWEEN:

SRI. SHIVANNA
SON OF HALINA MUNIYAPPA,
AGED ABOUT 70 YEARS,
RESIDING AT SHIVAKOTE VILLAGE,
HESARAGATTA HOBLI,
BANGALORE-560 088,
BANGALORE NORTH TALUK.
                           ...APPELLANT
(BY SRI. N.J.RAMESH, ADVOCATE)


AND:

1.     SRI SIDDALINGAPPA
       SON OF LATE MUNISHAMAIAH,
       AGED ABOUT 55 YEARS,
       RESIDING AT SHIVAKOTE VILLAGE,
       HESARAGATTA HOBLI,
       BANGALORE-560 088,
       BANGALORE NORTH TALUK.

2.     SRI. S.M.SIDDALINGAIAH
       SINCE DEAD REPRESENTED BY
       HIS LEGAL HEIRS

2(a)   SMT. KEMPAMMA
       WIFE LATE SIDDALINGAIAH
       AGED ABOUT 83 YEARS,
       RESIDING AT SHIVAKOTE VILLAGE,
                            2


       HESARAGATTA HOBLI,
       BANGALORE-560 088,
       BANGALORE NORTH TALUK.

2(b)   SMT. S. SUMALATHA
       DAUGHTER OF LATE MALLAMMA
       GRAND DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF MAHESH
       AGED ABOUT 34 YEARS,
       RESIDING AT BASAVANNA TEMPLE,
       THOTAGERE VILLAGE,
       DASANAPURA HOBLI,
       BANGALORE-562123
       BANGALORE NORTH TALUK

2(c)   SMT. S. SUJATHA @ NANDINI,
       DAUGHTER OF LATE MALLAMMA,
       GRAND DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF S.R.RENUKAPRASAD
       AGED ABOUT 32 YEARS,
       RESIDING AT THORENAGASANDRA VILLAGE,
       MATHAHALLI POST,
       DASANAPURA HOBLI,
       BANGALORE-562123
       BANGALORE NORTH TALUK

2(d)   SMT. MANJULA
       DAUGHTER OF LATE MALLAMMA
       GRAND DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF REVANNA
       AGED ABOUT 34 YEARS,
       RESIDING AT THORENAGASANDRA VILLAGE,
       MATHAHALLI POST,
       DASANAPURA HOBLI,
       BANGALORE-562123
       BANGALORE NORTH TALUK

2(e)   SMT. S. NIRMALA
       DAUGHTER OF LATE MALLAMMA
       GRAND DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF NATARAJU H.S.
       AGED ABOUT 30 YEARS,
       RESIDING AT HONNASANDRA VILLAGE,
                            3


       MATHAHALLI POST,
       DASANAPURA HOBLI,
       BANGALORE NORTH TALUK
       BANGALORE-562123

2(f)   SMT. S. PUSHPA,
       DAUGHTER OF LATE MALLAMMA,
       GRAND DAUGHTER OF LATE SIDDALINGAIAH
       AGED ABOUT 52 YEARS,
       RESIDING AT MATHAHALLI VILLAGE,
       DASANAPURA HOBLI,
       BANGALORE NORTH TALUK
       BANGALORE-562123

2(g)   SMT. KOMALA
       DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF M.S.SADASHIVAIAH
       AGED ABOUT 50 YEARS,
       RESIDING AT MUNIYANAPALYA VILLAGE
       MATHAHALLI POST,
       DASANAPURA HOBLI,
       BANGALORE NORTH TALUK
       BANGALORE-560 123

2(h)   SMT. SARVAMANGALA
       DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF S. NAGARAJU
       AGED ABOUT 47 YEARS,
       RESIDING AT MUNIYANAPALYA VILLAGE
       MATHAHALLI POST,
       DASANAPURA HOBLI,
       BANGALORE NORTH TALUK
       BANGALORE-560 089.

2(i)   SMT. S. SHASHIDHARA
       SON OF LATE SIDDALINGAIAH
       AGED ABOUT 45 YEARS,
       RESIDING AT BEHIND GOVERNMENT SCHOOL,
       SHIVAKOTE VILLAGE,
       HESARAGHATTA HOBLI,,
       BANGALORE NORTH TALUK
                            4


2(j)   SIDDAGANGAMMA
       DAUGHTER OF LATE SIDDALINGAIAH
       WIFE OF D.C.RAJANNA
       AGED ABOUT 42 YEARS,
       RESIDING AT DODDANALLURA HALLI VILLAGE
       JADIGENAHALLI HOBLI,
       HOSKOTE TALUK-562 114
       BANGALORE NORTH TALUK
                                 ...RESPONDENTS

(BY SRI. S.G.HEGDE, ADVOCATE FOR RESPONDENT NO.1
(THROUGH VC);
NOTICE SERVED ON RESPONDENT NOs.2(a) TO 2(j))

     THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF THE
CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND
ORDER DATED 09.11.2012 PASSED IN R.A. NO.193/2010 ON
THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 09.12.2009 PASSED IN O.S. NO.255/2002 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR. DN.) BANGALORE RURAL
DISTRICT,  BANGALORE,    DISMISSING    THE   SUIT  FOR
DECLARATION AND PERMANENT INJUNCTION.

     THIS MSA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This Miscellaneous Second Appeal is filed under

Order XLIII Rule 1(u) of the Civil Procedure Code, 1908

(for short, 'the CPC') by the respondent No.1 in R.A.

No.193/2010 on the file of the learned Principal District

and Sessions Judge, Bengaluru Rural District, (henceforth

referred to as 'First Appellate Court') challenging the

Judgment and Decree dated 09.11.2012, by which, the

First Appellate Court reversed the Judgment and Decree

dated 09.12.2009 passed by the learned Principal Civil

Judge (Junior Division), Bengaluru Rural District,

(henceforth referred to as 'Trial Court') in O.S.

No.255/2002 and directed fresh consideration of the case

after recording evidence.

2. The suit in O.S. No.255/2002 was filed for

declaration and perpetual injunction in respect of the land

bearing Sy. No.78 of Shivakote village, Hesaraghatta hobli,

Bengaluru North Taluk. The plaintiff claimed that the

plaintiff and defendants had succeeded to the properties

from their common ancestor, Sri Kariyappa, who had three

sons, namely, Sri Arasappa, Sri Halina Muniyappa and Sri

Munishamaiah. Sri Arasappa died issueless. Sri Halina

Muniyappa had two sons, namely, Sri S.M. Siddalingaiah

and Sri Shivanna (defendant Nos.2 and 1 respectively). Sri

Munishamaiah had a son by name Sri Siddalingappa, who

is the plaintiff. It is claimed that the suit schedule

property fell to the share of the plaintiff's father, at a

partition between him and his brothers and after the death

of Sri Munishamaiah, the plaintiff had succeeded to the

suit property. He claimed that there was a tamarind tree,

one jali tree, coconut trees, arecanut trees and jack fruit

trees in the suit property. He claimed that his name was

entered in the revenue records and that he was in

possession of the suit property. However, he alleged that

the defendants attempted to interfere with his possession

on 14.04.2002 which compelled him to file the suit for

declaration of his title and for perpetual injunction.

3. The defendants contested the suit and

admitted the relationship between the parties. They

claimed that an oral partition was entered into between

the three sons of Sri Kariyappa on 25.10.1958. At the said

partition, Sri Arasappa got the land measuring: 06 guntas

in Sy. No.45/3; 02 Acres 20 guntas in Sy. No.152/3 and

02 guntas in Sy. No.57/2. Likewise, Sri Muniyappa @

Halina Muniyappa got 03 Acres 36 guntas in Sy. No.78 and

05 guntas in Sy. No.45/3 while the plaintiff's father, Sri

Munishamaiah, got land measuring:02 Acres 35 guntas in

Sy. No.15/1; 25 guntas in Sy. No.155/1 and 5 guntas in

Sy. No.45/3. They claimed that each of them were in their

respective possession and enjoyment of the said property.

They further contended that the entire extent of the land

in Sy. No.78 measuring 03 Acres 36 guntas fell to the

share of the father of the defendants and no share was

allotted to either Sri Arasappa or Sri Munishamaiah in Sy.

No.78. They claimed that a road running through Sy.

No.78 was widened on the northern side and a portion of

the said survey number was acquired for the said purpose.

They claimed that the properties that fell to the share of

Sri Halina Muniyappa were thereafter divided between the

defendants on 24.03.1968 according to which the

defendant No.2 got 01 Acre 28½ guntas including 3.5

guntas of kharab while the defendant No.1 received 01

Acre 37½ guntas including 3.5 guntas of kharab. The

defendant No.1 claimed that he had constructed a house

on the eastern portion of Sy. No.78 and that he was

residing along with his family. He claimed that after a

portion of the land in question on the northern side was

acquired or utilized for widening the road, what remained

was 03 Acres 24 guntas, which was equally divided

between the defendants. Therefore, the defendants

claimed that the plaintiff had no right, title or interest in

the land bearing Sy. No.78.

4. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether plaintiff proves that he is the absolute owner of suit schedule property?

2. Whether plaintiff proves that he is in lawful possession and enjoyment of suit schedule property as on the date of suit ?

3. Whether plaintiff further proves the alleged interference by defendants?

4. Whether suit is bad for non-joinder of necessary parties?

5. Whether plaintiff is entitled for the relief of declaration as prayed for?

6. Whether plaintiff is entitled for the relief of permanent injunction as sought for?

7. What order or decree ?"

The plaintiff was examined as PW.1 and he marked

documents as per Exs.P1 to P14 while the defendant No.1

was examined as DW.1 and the defendant No.2 was

examined as DW.2 and they marked documents as Exs.D1

to D30.

5. Based on the oral and documentary evidence,

the Trial Court in terms of its Judgment and Decree dated

09.12.2009, dismissed the suit.

6. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed R.A. No.193/2010 before the

First Appellate Court. When the said appeal was listed for

arguments, the plaintiff filed I.A. Nos.II and III under

Order XLI Rule 27 of the CPC seeking permission to

produce additional documentary evidence. Along with I.A.

No.I, the appellant had enclosed two agricultural pass

books and one tax paid receipt pertaining to the suit

property while along with I.A. No.III, he had furnished a

certified copy of the judgment passed by this Court in RSA

No.376/1989. The First Appellate Court taking into

consideration the aforesaid applications, framed the

following points for consideration:

"1. Whether it is required to receive additional evidence from the appellant for disposal of the case on merits?

2. Whether the judgment of the trial Court requires intervention of this Court?"

The First Appellate Court held in paragraph No.15 of the

impugned judgment as follows:

"15. Appellant in his affidavit evidence annexed to I.A. No.II and III contending that "he was not able to produce the tax paid receipt and agricultural pass book during the trial since they were misplaced; from Ex.D5 and Ex.D6 produced by the defendants there was an endorsement that the said documents were produced in O.S.130/1984 on the file of Addl. II Munsiff, Bangalore Rural District, Bangalore; on verification in the office they found that the said case was filed by 2nd defendant against 1st respondent with regard to the very same suit Sy. No.78; the Judgment and decree passed by the trial Court was reversed in R.A. 67/1986."

It also held that the documents intended to be produced

were most required for better appreciation of the case set

up by the parties.

7. Based on this, the First Appellate Court allowed

I.A. Nos.II and III filed by the appellant - plaintiff and

allowed the appeal by reversing the Judgment and Decree

passed by the Trial Court in O.S. No.255/2002 and

remitted the case back to the Trial Court for

reconsideration with a direction to permit the plaintiff to

adduce further evidence and record the finding

independently on each of the issues as contemplated

under Order XX Rule 5 of the CPC.

8. Being aggrieved by the aforesaid Judgment

and Decree of the First Appellate Court, the defendant

No.1 in the suit preferred RSA No.2281/2012, which was

permitted to be converted into miscellaneous second

appeal in terms of the Judgment dated 22.02.2013.

9. The learned counsel for the appellant contends

that the First Appellate Court committed an error in

allowing the applications in I.A. Nos.II and III and also

allowing the appeal and also committed an error in setting

aside a well considered judgment of the Trial Court. The

learned counsel brought to the notice of this Court the

procedure contemplated under Order XLI Rule 28 of the

CPC and contended that the First Appellate Court ought

not to have mechanically allowed the appeal. He submitted

that the First Appellate Court ought to have explored the

possibility of recording the evidence or directing the Trial

Court to take such evidence and send the same to the First

Appellate Court so that the appeal could be disposed off.

He also invited the attention of the Court to Order XLI Rule

29 of the CPC and stated that if the First Appellate Court

directed the Trial Court to record the evidence, then it

should define the points on which evidence has to be

confined to, and the Court should record its findings on the

points so specified. He submitted that the documentary

evidence that the plaintiff intended to produce did not

change the quality of the evidence placed on record before

the Trial Court. There was no reason for the First Appellate

Court to set aside the Judgment and Decree passed by the

Trial Court.

10. The learned counsel for the respondent No.1 /

plaintiff admitted that the documents that were sought to

be produced along with I.A. Nos.II and III before the First

Appellate Court were relevant in as much as the Order

passed by this Court in RSA No.376/1989 related to the

very same property and therefore, it was incumbent upon

the First Appellate Court to consider the same.

11. The power of remand should not be

mechanically exercised by the First Appellate Court, as

doing so would result in upsetting an arduous Judgment

rendered by the Trial Court on the basis of oral and

documentary evidence. If the First Appellate Court is of

the view that the additional documentary evidence is

relevant for the purpose of the determination of the suit, it

may either record the evidence and dispose off the appeal

on merits or it could direct the Trial Court to record the

evidence and forward the report for disposal of the first

appeal.

12. The contours of exercise of power by the First

Appellate Court particularly while remanding the

proceedings to the Trial Court is well set out in the

judgment of a coordinate Bench of this Court in the case of

Shanthaveerappa vs. K.N. Janardhanachari [ILR 2007

KAR 1127], where this Court after considering the various

situations, laid down the principles as to when the

Appellate Court can exercise its power of remand to the

Trial Court. It directed that the power of remand should

be sparingly exercised. It is profitable to refer to the

observations in paragraph Nos.8 to 12 of the said

judgment, which read as under:

"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 23A which read as under:

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

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.

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, 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.

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 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.

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 re- appreciate 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 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 arising 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 Appellate 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 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 opportunity 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. A remand 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.

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

13. Unfortunately, a perusal of the Judgment and

Decree of the First Appellate Court does not indicate any

application of mind by the First Appellate Court to the facts

and circumstances of the case. It has also not weighed

the evidence on record to assess the probabilities of the

case to return a finding as to whether the additional

documentary evidence sought to be produced by the

plaintiff was necessary or not and if yes, it ought to have

explored the possibility of remitting the case by defining

the points for the Trial Court to record evidence. As a

result of the impugned Judgment and Decree passed by

the First Appellate Court, the findings recorded by the