Shri. Meenaji Gundu Kulam vs Shri. Gangaram Babu Chopade
2022 Latest Caselaw 2219 Kant

                            1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 11TH DAY OF FEBRUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                M.S.A.NO.100099 OF 2017

BETWEEN:

1. SHRI. MEENAJI GUNDU KULAM
AGE: 66 YEARS, OCC: AGRICULTURE
R/O MAL-ANKALE-591302,
TALUKA: KHANAPUR, DIST: BELAGAVI

2. SHRI. PARASHRAM GUNDU KULAM
AGE: 63 YEARS, OCC: PENSIONER & AGRL
R/O MAL-ANKALE-591302,
TALUKA: KHANAPUR, DIST: BELAGAVI

                                              ...APPELLANTS

(BY SRI.VENKATESH.M.KHARVI, ADVOCATE)

AND:

SHRI. YALLAPPA BABU CHOPADE
AGE: 46 YEARS, OCC: AGRICULTURE
R/O MAL-ANKALE-591302,
TALUKA: KHANAPUR, DIST: BELAGAVI

                                            ...RESPONDENT

(BY SMT.R.M.HIREMATH, ADVOCATE)
                                      2


     THIS MSA IS FILED UNDER SECTION 43 RULE 1(u) READ
WITH SECTION 104 OF CPC, 1908, AGAINST THE JUDGMENT AND
DECREE DATED: 31.07.2017 PASSED IN R.A.NO.33/2013 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, KHANAPUR, ALLOWING THE APPEAL FILED AGAINST
THE JUDGEMENT AND DECREE DTD: 30.09.2013 PASSED IN
O.S.NO.26/2011, ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND    JUDICIAL  MAGISTRATE    FIRST  CLASS,   KHANAPUR,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS
COURT DELIVERED THE FOLLOWING:

                             JUDGMENT

The captioned miscellaneous second appeal is filed by

defendants questioning the remand order passed by the

Appellate Court in R.A.Nos.33/2013 arising out of judgment

and decree passed in O.S.No.26/2011.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The brief facts of the case are as follows:

The respondent-plaintiff filed a suit for injunction

simplicitor in O.S.No.26/2011. The plaintiff specifically

pleaded that he is the owner in actual possession and

enjoyment over the suit property bearing GP No.152/3 totally

measuring 52 ft. east-west and 170 ft. north-south situated at

Mal-Ankale village. The plaintiff claimed that his name is duly

mutated in the property extract issued by the Grama

Panchayath and is duly paying tax to the Grama Panchayath.

The plaintiff claims that he is using the suit property for

keeping haystack as well as agricultural implements. The

grievance of the plaintiff before the trial Court was that the

present defendants are strangers and have no semblance of

right and title over the suit schedule property. The plaintiff

claimed that defendants tried to dispossess him from the suit

property on 2.1.2011 and therefore was compelled to file the

present suit.

The defendants contested the proceedings and stoutly

denied the entire averments made in the plaint. The

defendants specifically contended that the property bearing

GPC No.15 and abutting open space bearing GP No.15/1 are

exclusively owned by the defendants and they have

constructed a residential house in GPC No. 15/1 totally

measuring 40x20 ft. The defendants also contended that the

property bearing No. GPC 15 totally measures 82x32 feet in

width. Defendant No.2 also claims that he has constructed a

residential house in GPC.No.15/2 of Idalhond and specifically

contended that the open space bearing No. 15/1 is their

ancestral property.

The plaintiff in support of his case examined himself as

P.W.1 and got marked Exs.P1 and P1(a). The defendants in

support of their case examined defendant No.1 as D.W.1 and

got marked five documents.

The trial Court having assessed the ocular and

documentary evidence answered issue Nos.1 and 2 in the

negative and has recorded a categorical finding that the

plaintiff has failed to prove his lawful possession over the suit

property bearing GPC No.152/3. The trial Court having

examined the evidence adduced by plaintiff has come to the

conclusion that the property extracts issued by the Grama

Panchayath as per Ex.P1 would not establish the boundaries

and the extent of property owned by the plaintiff. The plaintiff

claims that suit schedule property measures 170 x 52 feet.

The trial Court having examined Ex.P1 has held that the

extent held by the plaintiff cannot be established by placing

reliance on a property extract issued by the Grama

Panchayath. The trial Court has discarded the recitals relating

to measurement in Ex.P1. The Trial Court infact has drawn

adverse inference that the plaintiff cannot assert and claim

that the suit schedule property measures 170x52 feet by

placing reliance on a assessment extract more particularly

when there is no specific column in the assessment extract to

notify the extent of the property. The measurement of the

property is infact reflected in other rights column. It is in this

background, placing reliance on the judgment rendered in

Church of Lady of Immaculate Conception .vs. The State

of Mysore and another1 has held that the entries made in

the property tax register of Grama Panchayath are only with a

1975(2) Kar.L.J.468

view to collect tax and no evidentiary value can be attached to

such documents as they are not the title documents.

The trial Court having assessed the evidence on record

has come to the conclusion that the plaint is absolutely silent

as to how the plaintiff came in possession over the suit

schedule property. During trial, the plaintiff claimed that this

property was allotted to him in the family partition. His

contention was negatived by the Trial Court for want of

evidence indicating that suit schedule property has fallen to

the share of plaintiff. Consequently, the Trial Court dismissed

the suit.

The plaintiff feeling aggrieved by the dismissal of the suit

preferred an appeal before the Appellate Court in RA.33/2013.

The Appellate Court has allowed the appeal and has remanded

the matter by invoking Rule 23-A of Order 41 of CPC with a

direction to re-admit the suit and re-examine the controversy

between the parties after considering the application for

appointment of the Court Commissioner in the case on hand.

4. Heard the learned counsel for the appellants-

defendants and the learned counsel appearing for respondent-

plaintiff. Perused the remand order under challenge.

5. The judgment and decree of the Appellate Court

passed in RA.No.33/2013 does not indicate that the Appellate

Court has applied its mind while deciding the appeal. The

Appellate Court has not at all examined the merits of the case.

None of the findings recorded by the Trial Court are examined

by the Appellate Court before ordering remand. The judgment

runs into 53 pages. It is unfortunate to see that Appellate

Court has reproduced the pleadings of the parties, the issues

framed by the Trial Court and the entire grounds urged in the

appeal are also reproduced by the Appellate Court. Further,

the Appellate Court has reproduced the judgments cited by

the learned counsel appearing for the rival parties. The

Appellate Court has commenced with its findings at Paragraph

26. Even if the reasons assigned from Paras 26 to 28 are

looked into, this Court would find that the Appellate Court has

not discharged its duty in independently assessing the ocular

and documentary evidence. It has not even whispered as to

what is the case of the plaintiff before the Trial Court. The

Appellate Court has also not assigned any reasons and has not

reversed the findings and conclusions arrived at by the Trial

Court. It would be relevant to cull out the operative portion of

the order which reads as under:

ORDER

"That, the appeal preferred by the Appellant / Plaintiff against the Respondents herein is hereby allowed.

That, impugned judgment & Decree passed in O.S.No. 26/2011 on 30/09/2013 by the Learned Addl. Civil Judge and JMFC., Khanapur is set aside.

Consequently, while allowing the Interlocutory Application filed by Appellant Under Order XXVI Rule 9 of Civil Procedure Code Read with section 151 of Civil Procedure Code, without touching the merits of case the matter is remanded back to the Trial Court U/o 41 rule 23(A) of Civil Procedure Code with a direction to re-admit the suit under its original number in the Register of Civil

Suits and proceed determine suit after entertaining application for appointment of Court Commissioner and thereafter extending fair and reasonable opportunities to the Appellants and Respondents herein to examine the Commissioner and leading additional evidence if any as such and dispose of the suit in accordance with law on priority basis expeditiously within three months from this date without getting influenced by observations made by this the court in the said appeal and without anticipating any court notices or summons as such in order to save precious time of court and if parties fail to appear before the Trial Court, it is at liberty to proceed under Order XVII of Civil Procedure Code or Under Order IX rule 7 of Civil Procedure Code, at the same time the Trial Court is directed to dispose the said case within three months.

Having due regards, parties to meet their own costs.

Transmit consigned records to the Trial Court along with true copy of the Judgment and Decree forthwith without causing delay and to secure acknowledgment without any lapses to ensury delivery of documents and records."

6. The operative portion clearly indicates that the

Appellate Court has stated in unequivocal terms that it has not

examined the merits of the case. On perusal of the judgment

of the Appellate Court, this Court is of the view that the

judgment of the Appellate Court is in violation of the

mandatory procedure contemplated under Order 41 Rules 30

and 31 of CPC. This Court is of the view that the power which

is vested with the Appellate Court in independently assessing

the entire material on record is not forthcoming from the

judgment under challenge. Section 107(2) of CPC does

vest the Appellate Court with some powers that are

conferred on Court on original jurisdiction. It is a trite law

that it is a bounden duty of the Appellate Court to see

whether the evidence taken as a whole can reasonably

justify the conclusion which the Trial Court arrived at or

whether there is an element of improbability arising

through a number of circumstances which in the opinion

of the Court outweighs such finding. The legislature has

entrusted a very important duty to the First Appellate Court

and it is for Appellate Court to decide finally all questions on

facts on which the disposal of the suit might depend. The First

Appellate Court has to make an honest endeavor to make

a proper apprising of the merits of the case put up by the

parties. But on plain reading of above culled out

paragraphs of the judgment of the First Appellate Court,

it can be easily inferred that the First Appellate Court has

not taken trouble to give a re-look into the matter. The

First appellate Court being a final fact finding authority

has to exhaustively deal with every contention, which

would be vital and would have a bearing on the

conclusions that are arrived at by the Trial Court. There

must be sufficient discussion to show that it has applied

its own mind to the evidence. The First Appellate Court

has to pronounce the judgment only after applying

judicial mind to the appreciation of evidence and

thereafter has to manifestly convey the judicial thinking

by which it either confirms or reverse with the judgment of the

Trial Court. It is a trite law that the appeal is a

continuation of suit and therefore, the First Appellate

Court is under a bounden duty to revisit over the

disputed questions of fact and thereafter come to a

conclusion. In the process if the First Appellate Court

comes to a conclusion that it cannot accept the reasons

assigned by the Trial Court, then it can divert with the

reasons which are recorded by the Trial Court and while

reversing the decree of the Trial Court, it has to attend all

relevant questions, which would arise for consideration in

the context of issues framed therein and ocular and

documentary evidence which would be let in by the

parties.

7. It has also failed in its duty of independently

assessing the ocular and documentary evidence and therefore

the judgment under challenge is also contrary to the settled

proposition of law laid down by the Kerala High Court in the

case of Kurian Chacko v. Varkey Ouseph2 while examining

AIR 1969 Kerala 316

the power of the Appellate Court hearing an appeal under

Section 96 has held as under:

"Civil P.C. (5 of 1908) S.96, S.107 - Duty of appellate Court to consider evidence independently.

An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him. No supplementing of appreciation is contemplated at the appellate stage. But, an independent appraisal of the evidence is the duty of the Court at that level. Failure to do that is an abdication of appellate power. It is the appellate Court's function not to find out whether there is perversity in the trial Court's judgment but whether it is wrong. There is very wide difference between a wrong conclusion and a perverse conclusion. A restricted revisional jurisdiction may be invoked under certain statutes only where there is perversity in the findings but the wider appellate jurisdiction conferred under Section 96 of the Civil P.

C., demands a little more effort on the part of the appellate Court in going into the evidence to come to its own conclusion and reversing the trial Court's decision if it is found to be wrong"

(Emphasis supplied)

8. The Full Bench of the Hon'ble Apex Court in the

case of Santosh Hazari v. Purushottam Tiwari

(deceased) by LRs3 has held that the judgment of the

First Appellate Court under Section 96 of CPC read with Order

XLI Rule 1 and 2 of CPC must display conscious application of

mind and record findings supported by reasons on all issues

and contentions.

9. The Full Bench of the Hon'ble Apex Court in the

case of Madhukar and others v. Sangram and others

reiterating the principles laid down in the case of Santosh

Hazari (supra) has further held that if Court fails to fulfill

its obligations, the parties would not get the true benefit of a

first appeal, which is a valuable right on the basis of

which parties have the right to be heard on questions of law

as well as on fact.

(2001)3 Supreme Court Cases 179

(2001)4 Supreme Court Cases 756

10. The Appellate Court has also not examined as to

whether a Court Commissioner can be appointed in a bare suit

for injunction. It is more than a trite that in a suit for

injunction simplicitor, the burden is on the plaintiff to prove

that he is in lawful possession as on the date of filing of the

suit. The burden is also on the plaintiff to prove that there is

interference by the defendants. Bearing these principles in

mind, if the operative portion of the judgment rendered by the

Appellate Court is looked into, this Court is of the view that

the Appellate Court by directing the parties to collect evidence

by way of local inspection has virtually delegated the

controversy in regard to lawful possession to the

Commissioner which is to be determined by the Court. If

plaintiff has approached the Court by specifically contending

that his property measures 170x52 ft. and if he claims that he

is in lawful possession, the same has to be established by

producing cogent and clinching evidence and therefore,

appointing a Commissioner to measure the property and fix

the boundaries is beyond the scope of enquiry in a bare suit

for injunction. What the Appellate Court has lost sight of the

fact is that there cannot be a remand to enable the plaintiff to

fill up the lacuna and therefore, the question of affording fresh

opportunity to re-litigate cannot be extended to the plaintiff.

The appellate power of remand should not be resorted to

unless the judgment is only unintelligible. As stated supra,

Appellate Court has not touched the merits of the case.

Therefore, I am of the view that the Appellate Court had no

jurisdiction in remanding the case by invoking Rule 23A of

Order 41 of CPC without giving reasons for upsetting the

decree. It is more than a trite that the Appellate Court cannot

make an order of remand without coming to the conclusion

that the decision of the Court is wrong and it is unnecessary to

set it aside. It cannot reverse merely for remanding the case.

11. For the reasons stated supra, I pass the following:

ORDER

(i)This Miscellaneous Second Appeal is allowed.

(ii)The judgment and decree passed by the Appellate

Court in RA.No.33/2013 is set aside.

(iii)The matter is remitted back to the Appellate Court

with a direction to hear the matter on merits.

(iv)Since the parties are represented by counsel, without

expecting any notice, parties are directed to appear before the

Appellate Court along with their counsel on 21.03.2022.

(v)All contentions are kept open.

Sd/-

JUDGE

*alb/-.