Smt.Ningavva vs Smt.Gouramma
2022 Latest Caselaw 269 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 7TH DAY OF JANUARY 2022

                             BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                     MSA.NO.100003/2017
BETWEEN

SMT.NINGAVVA W/O ULEVAPPA NELLIKOPPAD,
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GHALAPUJI, TQ: BYADAGI-581106,
DIST: HAVERI.
                                                 ... APPELLANT
(BY SRI.S.N.BANAKAR, ADV.)

AND

SMT.GOURAMMA W/O VEERAPPA DODDAMANI,
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: NEERALAGI, TQ: SORAB-577429,
DIST: SHIVAMOGGA, NOW RESIDING AT KIRAVADI,
TQ: HANGAL-581104, DIST: HAVERI.

                                               ... RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)

      THIS APPEAL IS FILED UNDER ORDER 43 RULE 1(u) OF CPC
SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI IN
R.A.NO.9/2008 DATED 31.08.2016 AND RESTORE THE JUDGMENT
AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
HANGAL IN O.S.NO.29/2005 DATED 27.11.2007 BY ALLOWING THIS
APPEAL.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                        2




                                 JUDGMENT

The captioned Miscellaneous Second Appeal is filed by

the plaintiff questioning the remand order dated

31.08.2016 passed by the first appellate court in

R.A.No.9/2008, which has set aside the judgment and

decree dated 27.11.2007 passed in O.S.No.29/2005

awarding 1/4th share to the appellant herein.

2. Heard the learned counsel for the appellant and

perused the remand order passed by the first appellate

court.

3. Present appellant/plaintiff filed a suit for

partition and separate possession by specifically contending

that the suit schedule properties are the joint family

ancestral properties and the plaintiff constitute undivided

Hindu joint family along with the defendant. The case of

the plaintiff is that properties are agricultural lands. The

respondent/defendant contested the proceedings and

contended that her father executed a gift deed in respect

schedule 2(a), 1, 3, 5 & 7 properties and with respect to

remaining properties, he has executed a Will.

Respondent/defendant also contended that Bangareppa

has bequeathed the suit properties 2(a) 2, 4 & 6 in favour

defendant by executing a Will. The trial court framed

following issues:

i) Whether defendant proves that, Bangareppa had executed a gift deed in her favour on 24.03.2005 in respect of schedule 2(a), 1, 3, 5 & 7 and schedule 2(b), 1, 2, & 3 properties by handing over possession of the same?

ii) Whether defendant proves that, Bangareppa bequeathing other suit properties 2(a) 2, 4 & 6 in favour of defendant by will dated 20.03.98 and she became owner of these properties after death of Bangareppa?

iii) Whether plaintiff is entitle for partition and separate possession of her share?

iv) Whether plaintiff is entitle for mesne profits?

v) What order or decree?

4. On appreciation of the oral and documentary

evidence, the trial court held that respondent/defendant

has failed to establish due execution of gift deed and also

held that Will is not proved by the defendant. With these

set of reasoning the trial court held that appellant/plaintiff

is entitled for partition and accordingly, decreed the suit

and granted 1/4th share in the suit schedule properties.

5. Feeling aggrieved, the respondent/defendant

preferred an appeal before the first appellate court. The

first appellate Court allowed the appeal and set aside the

judgment and decree passed by the trial court and

remanded the matter to the trial court with a direction to

frame issues.

6. Heard the learned counsel for the appellant and

perused the judgment under challenge. Though notice has

been served to the respondent, she has not chosen to

contest the proceedings and remained unrepresented.

7. Perused the remand order passed by the first

appellate court. On perusal of the same, this court would

find that the first appellate court has passed the remand

order very casually. No reasons are forthcoming as to why

the first appellate court has come to the conclusion that

the judgment and decree under challenge was liable to be

set aside and the matter needs de novo trial. Absolutely no

reasons are forthcoming in the remand order. It is useful to

cull-out the relevant portion, which is at page No.15:

"The learned Advocate for appellant has contended that matter may be remanded to trial court since it is convenient to both the parties to appear before the trial court and contest the matter instead of coming over to Haveri district which is far away from their place. As such in the interest of justice instead of framing issues and disposing off the case by this court it is proper to remand the case to the said trial court, for the convenient of the parties. Accordingly, I answer Point No.1 & 2."

8. If this relevant portion is looked into, this court

would find that the first appellate court has obliged the

request made by the counsel appearing for the appellant.

The counsel for the appellant has requested the first

appellate court to remand the matter and the first

appellate court readily accepted this prayer and remanded

the matter. It is trite law that remand by the first appellate

court while examining an appeal under Section 96 of CPC

has to be discouraged and has to be sparingly exercised

only in exceptional cases. It is also trite law that, if the

first appellate court while examining the appeal under

Section 96 r/w Order 41 Rule 1 and 2 of CPC finds any

shortcomings in recording of an evidence, it is always open

for the first appellate court being a final fact finding

authority to have a recourse and permit the party to lead

any further evidence.

9. On perusal of order of remand passed by the

first appellate court, it is clearly evident that order of

remand passed by the first appellate court is without

coming to a conclusion that the decision of the trial court is

wrong. The first appellate court has not even reversed the

finding recorded by the trial court. The first appellate court

being the final fact finding authority is required to consider

the evidence on record and then to arrive at a conclusion

as to whether finding recorded by the trial court cannot be

supported by evidence on record. It is only in exceptional

circumstances, the court may exercise the power of

remand dehors the Rule 23 and 23A of Order 41 of CPC. In

the present case on hand, on meticulous examination of

the judgment and decree of the first appellate court, I do

not find any circumstances compelling the first appellate

court to order retrial and the nature of evidence on record

also did not fall within the purview of Rule 23 or 23-A. The

first appellate court can resort to and remand the matter,

unless the judgment and decree is wholly unintelligible or

there is total lack of evidence.

10. The trial court has dealt with all the issues and

as recorded its specific finding on all the issues. Therefore,

the first appellate court was required to independently

assess the oral and documentary evidence. There is no

specific finding recorded by the first appellate court that

evidence on record is not sufficient for effective

adjudication. This dispute is between the two sisters.

Respondent/defendant who is sister of the plaintiff has set

up a defence and is claiming absolute ownership over the

properties in question on the premise that their father has

executed a gift deed in respect of few items and has also

bequeathed few items under a Will. The trial court after

having full-fledged trial has recorded a finding that

respondent/defendant has failed in proving the due

execution of the gift deed and Will. Both the issues in this

regard are answered in the negative. Therefore, it was

incumbent on the part of the first appellate court to re-

appreciate the entire oral and documentary evidence on

record and ought to have proceeded to decide the case on

merits rather than remanding the matter without issuing

any specific direction. Therefore, the judgment and decree

of the first appellate court in remanding the matter suffers

from perversity.

11. Though this appeal is listed for admission and it

is noticed that two sisters are litigating seeking share in

respect of the properties left behind by their father, this

court would proceed to dispose off the appeal with a

direction to the first appellate court to hear the matter on

merits and decide the appeal as contemplated under

Section 96 r/w Order 41 Rule 1 and 2 of CPC. Accordingly,

I proceed to pass the following:

ORDER

The appeal is allowed. The order dated 31.08.2016

passed by the I Additional District and Sessions Judge,

Haveri in R.A.No.9/2008 is set aside. The matter is

remanded back to the first appellate court to hear the

matter on merits and decide the appeal as contemplated

under Section 96 r/w Order 41 Rule 1 and 2 of CPC.

Sd/-

JUDGE MBS/-