Rajeev S/O. Late Mahadevappa ... vs Smt. Shanthabai @ Parimala @ ...
2022 Latest Caselaw 2957 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                M.S.A.NO.100009/2021

BETWEEN

1.    RAJEEV
      S/O. LATE MAHADEVAPPA AGADI
      AGE 55 YEARS,
      OCC. SERVICE AND AGRICULTURE,
      R/O. KALLIHAL,
      TQ: AND DIST. HAVERI,
      NOW AT C-6/10-3,
      MULTI KAIGA TOWNSHIP,
      MALLAPUR,
      TQ: KARWAR,
      DIST. UTTARA KANNADA 581400.

2.    SATISH
      S/O LATE MAHADEVAPPA AGADI,
      AGE. 51 YEARS,
      OCC. SERVICE AND AGRICULTURE,
      R/O. KALLIHAL,
      TQ. AND DIST. HAVERI,
      NOW AT NEAR ESI HOSPITAL,
      SANTI GROUND,
      PUJARI HOUSE,
      KUMARPATTANAM,
      TQ. RANEBENNUR,
      DIST. HAVERI 581123.
                                          ...APPELLANTS
(BY SRI VIJAYENDRA BHIMAKKANAVAR, ADV.)

AND

1.    SMT.SHANTHABAI
      @ PARIMALA @ PADAMA
      W/O SRINIVAS
                              2




      @ GUDDAPPA KULKARNI
      @ SHIVAPUJI, AGE 46 YEARS,
      OCC. HOUSEHOLD,
      R/O. BALAMBEED, TQ. HANGAL,
      DIST. HAVERI 581101.

2.    SMT.VANI
      @ JYAMMA @ JAYASHRI
      W/O UDAY KULKARNI,
      AGE 42 YEARS,
      OCC. HOUSEHOLD,
      R/O. INDUR, TQ. MUNDAGOD,
      DIST. KARWAR-581 349.

3.    SMT.LAKSHMIBAI
      W/O GAJANAN KULKARNI
      AGE : 65 YEARS,
      OCC. HOUSEHOLD,
      R/O. NELOGAL,
      TQ. AND DIST. HAVERI 581-110.

4.    NAGESH
      S/O GAJANAN KULKARNI
      AGE. 49 YEARS, OCC. HOUSEHOLD,
      R/O. NELOGAL,
      TQ AND DIST. HAVERI-581 110.
                                            ... RESPONDENTS

(BY SRI S.N.KINI & SRI N.S.KINI, ADV. FOR R.1 & R2
(NOTICE TO RESPONDENT NO.3 & 4 : SERVED)

      THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER XLIII RULE 1 (R) OF CPC., AGAINST THE JUDGEMENT
AND DECREE DATED 16.12.2020 PASSED IN R.A.NO.8/2020 ON
THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HAVERI,
ALLOWING THE APPEAL FILED AGAINST THE JUDGEMENT AND
DECREE DATED 29.02.2020 PASSED IN O.S.NO.152/2008, ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HAVERI,
DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.

      THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                 3




                      : JUDGMENT :

The captioned miscellaneous second appeal is

filed by defendant Nos.3(a) & 3(b) questioning the

remand order passed by the First Appellate Court in

RA.No.8/2020 arising out of suit bearing

O.S.No.152/2008.

2. Facts leading to the above said case are as

under:

3. The father of the appellants herein namely

Mahadevappa Agadi filed a suit for specific

performance claiming that the ancestor of defendant

namely Gajanan Kulkarni has executed an agreement

to sell dated 25.06.1985 agreeing to sell 3 acres 11

gutnas of land in Sy.No.89/4 situated in Kallihala

village of Haveri Taluk.

4. Respondents as a counterblast filed a suit

for partition and separate possession in

O.S.No.152/2008. Both the suits were clubbed and

the parties in support of their claims led in ocular

evidence.

5. The Trial Court having appreciated the oral

and documentary evidence dismissed the suit filed by

the present appellants in O.S.No.37/2007 and decreed

the suit filed by respondents herein in

O.S.No.152/2008, which was one for partition and

separate possession.

6. The present appellants being aggrieved by

the judgment and decree passed in O.S.No.37/2007

as well as O.S.No.152/2008 preferred two

independent appeals before the First Appellate Court

which were numbered as R.A.No.7/2020 and

R.A.No.8/2020 respectively.

7. The First Appellate Court has kept the

appeal pending in RA.No.7/2020 which is arising out

of suit for specific performance in abeyance and has

allowed the connected regular appeal in

R.A.No.8/2020 arising out of suit for partition and

separate possession and has remanded the matter for

fresh trial with a direction to the Trial Court to include

the other properties and also to implead necessary

parties. While remanding the matter, the First

Appellate Court has ordered to keep the appeal

pending in R.A.No.7/2020 in abeyance till disposal of

O.S.No.152/2008 (partition suit).

8. It is this remand order which is called in

question by the plaintiffs in O.S.No.37/2007, who are

claiming to be the agreement holders.

9. Learned counsel appearing for the

appellant would vehemently argue and contend before

this Court that the First Appellate Court was not

justified in keeping the appeal filed in R.A.No.7/2020

arising out of O.S.No.37/2007 in abeyance. In a suit

for specific performance of contract it is only the

alienating members of the family who are necessary

parties. The core issue that would arise in a suit for

specific performance is, as to whether agreement

holders are able to prove the due execution of suit

agreement and their readiness and willingness. Even if

these two ingredients are satisfied, the agreement

holders have to still make out a case that they are

entitled for discretionary relief of specific performance

of contract. He would submit to this Court that the

filing of partition suit by non-alienating member would

not in itself lead to stalling the proceedings arising out

of a specific performance suit. It is in this background,

he would submit to this Court that the remand order

passed by the First Appellate Court by setting aside

the judgment and decree passed in O.S.No.152/2008

suffers from serious perversity and the remand order

passed by the First Appellate Court does not satisfy

the ingredients of Order XLI Rule 23A of the Code of

Civil Procedure, 1908 ("CPC" for short). He would also

submit to this Court that the remand order passed by

the First Appellate Court is in violation of Order XLI

Rules 30 and 31 of CPC and also contrary to principles

laid down by the Co-ordinate Bench of this Court in

the case of Shanthaveerappa Vs.

K.N.Janardhanachari1. He would submit to this

Court that it is a specific case of the appellants in

O.S.No.37/2007 that the ancestor of respondents

herein namely Gajanan Kulkarni has entered into

transaction with ancestor of appellants herein for legal

necessity and there is a specific issue in that regard in

O.S.No.37/2007. It is in this background, he would

submit to this Court that, unless the First Appellate

Court being a final fact finding authority decides this

issue which has gone against appellants before the

Trial Court, the claim of respondents in the connected

suit which is one for partition cannot be adjudicated.

Therefore, he submits that partition suit should have

been kept in abeyance and not the proceedings arising

out of a suit for specific performance filed in

O.S.No.37/2007. He would further argue and contend

before this Court that the First Appellate Court before

venturing into ordering a remand order has not

ILR 2007 KAR 1127

recorded its finding on all the issues and therefore

there is no proper appraisal of material on record and

by keeping the appeal pending which is filed by the

appellant herein in R.A.No.7/2020 in abeyance, the

valuable rights of appellants are virtually taken away.

On these set of grounds, he would submit to this

Court that the impugned judgment and decree passed

by the First Appellate Court in R.A.No.8/2020 is not at

all sustainable and the same warrants interference at

the hands of this Court.

10. Per contra, learned counsel appearing for

the respondents refuting the arguments canvassed by

the learned counsel appearing for the appellants

would submit to this Court that admittedly the suit

schedule property is the joint family ancestral

property and therefore, the appellants being the

purchasers have no say in the partition suit. The First

Appellate Court has taken note of the non inclusion of

some of other ancestral properties and therefore to

meet the ends of justice has rightly remanded the

order to the Trial Court with a direction to implead

other necessary parties. It is in this background, he

would submit to this court that remand order satisfy

the ingredients of Order XLI Rule 23A of CPC and the

same is also in consonance with dictum laid down by

the this court in catena of judgments.

11. To buttress his arguments, he has placed

reliance on the judgment which is already culled-out

by the first appellate court. Placing reliance on the

judgment rendered by this court in the case of

Kallappa Vs Mallamma and Others2, he would

submit to this court that since some properties were

left out and some necessary parties were also not

included, it was well within the power of the first

appellate court in remitting the matter to the trial

court for fresh consideration.

    2015(4) KCCR 3432





     12.   Heard    the   learned    counsel   for   the

appellants, learned counsel for the respondents and

perused the judgment under challenge.

13. If the remand order passed by the first

appellate court is tested in the light of the principles

laid down by a Coordinate Bench of this court in the

case of Shathaveerappa (supra), I am of the firm

view that the judgment under challenge does not

satisfy the principles laid down by this court in the

judgment cited supra. The first appellate court being a

final fact finding authority has not discharged its duty.

Time and again, this court in several judgments has

held that appellate court should not venture into

casually remanding the matters. In the judgment cited

supra, this court has gone to the extent of holding

that appellate court is vested with all possible powers

as that of the trial court. The appellate court in a

given set of facts has power to maintain pleadings,

frame issues, re-settle issues and delete issues. The

first appellate court is also empowered to receive

evidence by way of additional evidence, record

evidence, summon witnesses and documents. The first

appellate court is also empowered to take judicial note

of subsequent developments. If these findings

recorded in the judgment cited supra are taken into

consideration, I am of the view that the first appellate

court was not justified in remanding the matter only

to enable the plaintiff to include other properties and

also implead necessary parties.

14. Section 107(2) of CPC does invest 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.

15. Though first appellate court has come to

the conclusion that other co-owners are necessary,

however, this court would find that first appellate

court has not taken pain to ascertain as to whether

the presence of other co-owners was absolutely

necessary in the present case on hand. If there is a

dispute interse within a family, and if adjoining owners

names are found in the revenue records, that in itself

would not give right to the plaintiff to also rope in the

adjoining co-owners in a suit for partition and

separate possession. If the quantification within the

family, would not affect the rights of co-owners, I am

unable to understand as to how the first appellate

court would have casually directed to implead co-

owners whose presence is not at all required for

effective adjudication of a interse dispute between the

family members. There is absolutely no discussion as

to how the co-owners are necessary parties to the

proceedings.

16. Insofar as non-inclusion of ancestral lands

are concerned, it was well within the jurisdiction of the

first appellate court to direct plaintiff to include these

properties. While remanding the order, the first

appellate court has also recorded a finding that the lis

which is pending in R.A.No.7/2020 arising out of a suit

for specific performance has to be kept in abeyance.

This finding appears to be palpably erroneous. In a

suit for specific performance of contract there is an

independent issue as to whether the ancestor of

respondent herein has alienated the property in

question for legal necessity. This issue which is

framed in a suit for specific performance is intertwined

with the issues that are formulated in a partition suit.

Therefore, there cannot be independent enquiry on

the issues that are formulated in a suit for specific

performance. I am also of the view that if there is a

issue in regard to legal necessity and if the agreement

holder ascertains and claim that ancestor has agreed

to sell the suit property for legal necessity, then the lis

cannot be independently examined or it cannot be

kept in abeyance. All these significant details are not

taken into consideration while passing the remand

order.

17. In that view of the matter, I am of the view

that remand order is unsustainable and matter

deserves to be sent back to the first appellate court to

discharge its duty of appellate court and decide the

case in terms of Section 96 r/w Order XLI Rule 1 and

2 of CPC. The first appellate court is also bound to

keep in mind the mandatory provisions of Order XLI

Rule 30 and 31 of CPC. The first appellate court is also

required to take judicial note of the judgments cited

supra wherein certain guidelines are laid down by this

court.

18. In that view of the matter, appeal is

allowed. The matter is remitted back to the first

appellate court for fresh consideration. The first

appellate court shall decide the case on merits.

19. Since parties are represented by respective

counsel, there is no need to issue fresh notice. Parties

shall be instructed to appear before the first appellate

court on 28.03.2022.

Sd/-

JUDGE EM/MBS