Sri. Chidambar S/O Hosabayya Naik vs Sri. Girish S/O Pundalik Naik
2022 Latest Caselaw 8067 Kant

 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

        DATED THIS THE 03 R D DAY OF JUNE, 2022

                        BEFORE

      THE HON'BLE MR.JUSTICE RAVI V.HOSMANI

                M.S.A.NO.100019/2021

BETWEEN:

SRI.HOSABAYYA
S/O RAMA NAIK
SINCE DECEASED BY HIS LRS.

1 .   SRI. CHIDAMBAR
       S/O HOSABAYYA NAIK
      AGED ABOUT 68 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

2 .   SRI. GANAPATI
      S/O HOSABAYYA NAIK
      AGED ABOUT 66 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

3 .   SRI. VENKATRAMAN
      S/O HOSABAYYA NAIK
      AGED ABOUT 64 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

4 .   SRI. CHANDRASHEKHAR
      S/O HOSABAYYA NAIK
      AGED ABOUT 62 YEARS,
      OCC. AGRICULTURIST
                               2




      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

5 .   SRI. VISHNU
      S/O HOSABAYYA NAIK
      AGED ABOUT 60 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

6 .   SRI. RAGHAV
      S/O HOSABAYYA NAIK
      AGED ABOUT 56 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

7 .   SMT. ANANDI
      W/O BHASKAR NAI K
      AGED ABOUT 55 YEARS,
      OCC. HOUSEHOLD
      R/O TADADI SANI KATTA,
      GOKARNA,T Q. KUMTA,
      DIST. U.K . - 581332.

8 .   SMT. SEETA
      S/O RAMACHANDRA NAIK
      AGED ABOUT 70 YEARS,
      OCC. HOUSEHOLD,
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.
                                      ...APPELLANTS

(BY SRI S G KADADAKATTI AND
    SRI LINGESH V KATTEMANE, ADVS.)
                                3




AND

1 .   SRI. GIRISH
      S/O PUNDALIK NAIK
      AGED ABOUT 49 YEARS,
      OCC. AGRICULTURIST
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.

2 .   SMT. AMMAKKA
      W/O TIMMANNA NAIK
      AGED ABOUT 73 YEARS,
      OCC. AGRICULTURIST CUM HOUSEHOLD,
      R/O KAGAL BAAD,
      TQ. KUMTA,
      DIST. U.K . - 581332.
                                     ....RESPONDENTS

(BY SRI VISHWANATH HEGDE AND
    SMT.TANUJA HEGDE, ADVS. FOR R1;
    R2-SERVED)

      THIS MSA IS FILED UNDER ORDER SECTION 105 OF
CPC., PRAYING T O A. CALL FOR RECORDS; B. SET ASIDE
THE JUDGMENT AND DECREE DATED 04.06.2021 PASSED BY
THE SENIOR CIVIL JUDGE, KUMTA, I N R.A.NO. 52/2019 AND
CONFIRM THE ORDER DATED 09.08.2019 PASSED BY THE
ADDITIONAL CIVI L JUDGE, K UMTA IN EX.NO.44/2015 BY
ALLOWING   THE   APPEAL   IN   THE   ENDS   OF   JUSTICE   AND
EQUITY.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.03.2022, THIS DAY, THE COURT ,
PRONOUNCED FOLLOWING:
                                          4




                                JUDGMENT

Challenging judgment and decree dated

04.06.2021 passed by Senior Civil Judge, Kumta, (for

short, "first appellate Court") in R.A.No. 52/2019 ,

confirming order dated 09.08.2019 passed by Additional

Civil Judge, Kumta, (for short 'trial court') in

Ex.P.no.44/2015, allowing appeal, this Miscellaneous

Second Appeal is filed.

2. Appellants herein were respondents no.2

to 9, while respondent no.1 herein was appellant and

respondent no.2 herein was respondent no.1 in

R.A.No.52/2019. Said appeal was filed challenging

order passed by trial Court on I.A.No.I filed by

respondent no.1 herein under provisions of Order XXI

Rule 97, 98 and 99 read with Section 151 of Code of

Civil Procedure, 1908, (for short 'CPC') in

Ex.P.no.44/2015. Said execution petition was filed to

give effect to final decree passed in FDP No.15/2010

dated 15.04.2015.

3. I.A.No.I filed by respondent no.1 was

allowed and matter remanded back to decide it afresh

only after taking additional evidence on record, in

light of respective contentions of parties. Legality of

order of remand is in question herein. For sake of

convenience, parties to this appeal are referred to as

per their ranks in Execution case.

4. Though this appeal is listed for admission,

with consent of learned counsel for parties, it is taken

up for final disposal.

5. Brief facts as stated are that applicant

(respondent no.1) is son of deceased Pundalik

Ganapayya Naik. That on 16.03.2016, without serving

any notice to him or his brothers, revenue officers

fixed boundary stones in Sy.No.72/1-8 of Hubbangeri

village. He was informed that it was in pursuance of

order passed in Execution petition. It was further

averred that his father arrayed as respondent no.5 in

Execution case, died on 01.03.2014 i.e., during

pendency of FDP No.15/2010, but Execution case was

being proceeded without impleading legal

representatives. It was also alleged that final decree

was obtained by concealing material facts and even

Wataph Takhta prepared by surveyor was based on

false information. Further, land bearing Sy.No.72/1-8

measuring 01 acre 12 guntas was granted to

applicant's father by Land Tribunal and therefore, it

was his exclusive property. After his death, applicant

and his brothers were its absolute owners.

6. That O.S.No.114/1947 filed for partition of

joint family properties, ended in compromise,

agreeing for 1/3 r d share in Sy.No.72 along with other

properties. At that time, total extent of Sy.No.72 was

12 acres 32 guntas. And though, late Pundalik Naik

and his mother were defendants in said suit, they

were deleted. In R.A.No.77/2006, a clarification was

given. In view of same, possession of land bearing

Sy.No.72/1-8 could not be given to anyone else, as

applicant and his brothers had right over same, as it

would be contrary to judgment and decree passed in

R.A.No.77/2006. It was further stated that possession

claimed to be handed over by surveyor in execution

petition was on paper only and actual possession

continued with applicant and his brothers. As they

had right in respect of said property, they were

entitled to be heard. A decree of declaration that

applicant along with his brothers were absolute

owners of land bearing Sy.No.72/1-8 measuring 1

acre 12 guntas was sought.

7. Application was opposed on ground that

application averments were false and it was filed only

to harass them. It was contended that Execution

Court lacked jurisdiction to entertain application.

Relationship with applicant was denied. It was stated

that one Devappa Srikrishna Naik filed

O.S.No.114/1947 for partition. Said suit was decreed.

In Ex.P.no.125/1956, symbolic possession of suit

properties was given to parties. Therefore, one Rama

Narayan Naik filed O.S.No.6/1969 seeking actual

possession as per earlier decree. Said suit was

decreed on 09.09.1991.

8. However, one Ananta Shinnayya Naik

preferred R.A.no.13/1997. Upon transfer to Senior

Civil Judge, Kumta, it was numbered as

R.A.No.77/2006. Applicant was defendant no.12 in

O.S.No.152/1991. Said suit was also filed for actual

possession as per decree in O.S.No.114/1947. But

said suit was dismissed. Smt. Honnamma, W/o.

Hosabayya Naik filed appeal in R.A.No.146/2006.

Applicant and his family members were parties to said

proceedings. First appellate Court allowed both

R.A.Nos.77/2006 and 146/2006 by modifying decree

in O.S.Nos.6/1969 and 152/1991. In pursuance of

said decree, FDP No.15/2010 was filed. For giving

effect to said decree, Ex.P.No.15/2010 was filed and

actual possession of suit properties was handed over

to parties. Therefore, application was not

maintainable.

9. Respondents also contended that applicant's

father was a party to all earlier proceedings and

notices were served on him. It was further stated that

as they were not aware of his death, legal

representatives were not impleaded. It was further

stated that even surveyor had served notice and

thereafter prepared Wataph Takhta and PT Sheet was

drawn. Concealing said facts, application was filed.

Therefore, sought for its rejection with cost.

10. To substantiate application, applicant was

examined as PW-2. Exs.P.1 to 7 and 9 were marked.

No contra evidence was led.

11. Based on contentions, Executing Court

framed following points for considerataion:

"1. Whether the claimant proves that he along with his brothers have got absolute title over the landed property bearing sy.no.72/1-8 measuring 1-12-0?

2. Whether claimant proves that they are in possession of the landed property bearing sy.no.72/1-8 measuring 1-12-0?

3. Whether claimant is entitled to the relief of declaration as sought for in the application?

4. Whether the claimant is entitled for the relief of permanent injunction as sought for in the application?

5. What order?"

12. On consideration, it answered points no.1 to

4 in negative, point no.5 by dismissing I.A.No.I.

13. Aggrieved by same, applicant filed

R.A.No.52/2019 on several grounds. It was contended

that judgment and decree was unsustainable on law and

facts. It was further contended that applicant's father

was not a family member joint family of respondents.

Grant of land bearing Sy.No.72/1-8 by Land Tribunal in

name of applicant's father was not taken note of. Trial

Judge erred in stating that no documents with respect

to O.S.No.114/1947 were produced, even though same

Judge referred to them in another claim application. It

was also contended that applicant's father and

grandmother had been excluded from compromise in

O.S.No.114/1947. Therefore, it was observed in

R.A.Nos.146/2006 and 77/2006, that judgment and

decree in said proceedings would not affect right and

interest of persons to whom occupancy rights were

granted, if they were not parties to original decree in

O.S.No.114/1947.

14. As all subsequent litigation was in pursuance

of decree in O.S.No.114/1947 by virtue of above

observation, decree would not bind those persons not

parties thereto. It was contended that death certificate

of applicant's father produced by applicant was also not

considered and opportunity to cross-examine petitioner

in execution case was denied. Without respondents

producing any documents to show that they were

absolute owners of Sy.No.72/1-8, trial Court had

passed impugned order, which required interference.

15. It would be relevant to state that executing

Court had also disposed of two other applications

namely I.A.No.II filed by Ramakrishna Devappa Naik

under Order XXI Rule 97, 98 and 99 of CPC and

I.A.No.III filed by Ishwar Shivappa Naik under Order

XXI Rule 99 of CPC. Challenging said orders,

R.A.No.50/2019 was filed against order on I.A.No.II,

while R.A.No.63/2019 was filed against order on

I.A.No.III. All three appeals were taken up together

and disposed of by common judgment and decree.

16. Based on contentions, first appellate Court

framed following points for consideration:

"1. Whether appellants in R.A.no.50/2019 prove that order passed by trial Court on I.A.II in Execution Case no.44/201 is capricious, perverse and interference by this Court is necessary?

2. Whether appellants in R.A.no.50/2019 and appellant in R.A.no.63/2019 have assigned sufficient reasons to allow I.A.III and I.A.IX filed under Order 41 Rule 27 of CPC respectively?

3. Whether appellant in R.A.no.52/2019 proves that order passed by trial court on I.A.I in execution case no.44/2015 is capricious, perverse and interference by this court is necessary?

4. Whether appellant in R.A.no.63/2019 proves that order passed by trial court on I.A.III in execution case no.44/2015 is capricious, perverse and interference by this court is necessary?

5. If so, for what order?"

17. On consideration, first appellate Court

answered point no.1 partly in affirmative, points no.2

to 4 in affirmative and point no.5 by partly allowing

appeal. Aggrieved by impugned judgment and decree

insofar as R.A.No.52/2019 (on points no.2, 3 and 5),

this Miscellaneous Second Appeal is filed.

18. Sri. S.G. Kadadakatti, learned counsel for

appellant submitted that on 26.03.1947, one Devappa

Srikrishna Naik filed O.S.No.114/1947 before Court of

Munsiff, Kumta, seeking for relief of partition. Said

suit was decreed on 28.03.1947 and

Ex.P.No.125/1956 was filed for execution of decree.

Said petition was disposed of by handing over

symbolic possession of suit properties to respective

parties on 30.05.1962. Thereafter, on 17.12.1968

Rama Narayan Naik, filed O.S.No.6/1969 seeking for

actual possession vide decree in O.S.No.114/1947.

19. It was further submitted that on

26.09.1981, Land Tribunal, Kumta, granted occupancy

rights in respect of land bearing Sy.No.51/3 and

other survey numbers in favour of Pundalik

Ganapayya Naik. It was further specifically submitted

that there was no order granting occupancy rights in

respect of land bearing Sy.No.72/1-8. On 09.09.1991,

O.S.No.6/1969 was decreed. Same was challenged by

defendants no.1 and 2 therein in R.A.No.61/1991,

which was later renumbered as R.A.No.77/2006.

20. Meanwhile, another suit - O.S.No.152/1991

was also filed seeking actual possession as per decree

in O.S.No.114/1947, but, it was dismissed on

12.09.2001. Said judgment and decree was

challenged in R.A.No.146/2006.

21. Meanwhile, Ex.Petition No.44/2015 was filed

seeking for delivery of possession in respect of land

bearing Sy.No.72/1-8. In said petition, applicant filed

I.A.No.I seeking for declaration of his title in respect

of land bearing Sy.No.72/1-8 measuring 01 acre 12

guntas. It was submitted that after recording

evidence, trial Court held that applicant failed to

establish his claim that his father Pundlik filed Form

No.7 for grant of occupancy rights in respect of land.

On said finding, trial Court rejected I.A.No.I.

Aggrieved by same, applicant preferred appeal is

R.A.No.52/2019. On erroneous consideration, first

appellate Court allowed appeal and remanded matter

to trial Court to consider application afresh after

affording opportunity to lead evidence.

22. It was contended that impugned judgment

and decree was erroneous and suffered from non-

application of mind. It was submitted that applicant

failed to produce any documents to establish grant of

occupancy rights in respect of land bearing

Sy.No.72/1-8. It was contended that no records were

produced to establish that Form No.7 was filed in

respect of said land. Such being case, remand of

matter by first appellate Court providing opportunity

to lead evidence would be futile. It was further

submitted that despite sufficient opportunity,

applicant had failed to establish basis for his

challenge. Therefore, first appellate Court was not

justified in remanding matter to Executing Court. On

said grounds, he sought allowing appeal.

23. On other hand, Sri. Vishwanath Hegde,

learned counsel appearing for applicant sought to

justify impugned judgment and decree. Referring to

facts stated in paragraph no.14 of impugned

judgment, learned counsel submitted that I.A.No.I

was filed by applicant under Order XXI Rule 97, 98

and 99 read with Section 151 of CPC seeking for

declaration that immovable property bearing

Sy.No.72/1-8 measuring 01 acre 12 guntas of

Hubbangeri village belonged to applicant and his

brothers.

24. Learned counsel further submitted that in

application, it was specifically stated that on

16.03.2013 revenue officials had proceeded to fix

boundaries of land bearing Sy.No.72/1-8, without

serving prior notice to him, merely about proceedings

in Ex.Petition No.44/2015. On verifying, it was

noticed that despite death of Pundalik Ganapayya

Naik on 01.03.2014, during pendency of FDP

No.15/2010, it was not reported to Court and without

bringing legal representatives on record, it proceeded

with. It was submitted that even in Ex.Petition

No.44/2015, notice issued to judgment debtor no.5

returned with postal shara as 'dead'. Though on

18.11.2015, it was posted for taking steps, needful

was not done. It was submitted that land bearing

Sy.No.72/1-8 was originally granted to his father by

Land Tribunal and after his death, applicant and his

brothers had succeeded to same.

25. It was further submitted that Wataph

Takhta was prepared on basis of false information

given by respondents. Learned counsel submitted that

dismissal of I.A.No.I by Executing Court was on

ground that petitioner had not produced records

pertaining to grant of land by Land Tribunal. In

appeal, however I.A.No.III was filed under provisions

of Order XLI Rule 27 of CPC for additional evidence by

producing order copy of Land Tribunal, Form - 7 and

other documents. Appreciating these documents first

appellate Court had rightly concluded that additional

evidence was necessary found fit for remanding

matter to Executing Court and therefore no

interference was called for.

26. It was contended that provisions of Order

XLI Rule 27 of CPC empowered first appellate Court

with discretion either to accept additional evidence or

to remand matter for recording it. Merely on ground

that first appellate Court had exercised discretion one

way would not justify interference. It was submitted

that impugned judgment was equitable to protect

interests of both parties. In support of his contention,

learned counsel relied upon judgment dated

04.10.2021 passed in R.S.A.No.100254/2021

challenging judgment and decree dated 04.06.2021

passed by Senior Civil Judge at Kumta, in

R.A.No.50/2019.

27. From above submission, it is not in dispute

that Ex.Petition No.44/2015 was filed for giving effect

to judgment and decree passed in FDP No.15/2010

dated 15.04.2015. In said petition, respondent no.1

herein filed I.A.No.I under Order XXI Rule 97 to 99

read with Section 151 of CPC as third party objector

and seeking for declaration of his title based on grant

of occupancy rights in favour of applicant's father

Pundlik Naik exclusively. While applicant contends

that said land was granted exclusively in favour of his

father and after his death, applicant and his brothers

succeeded to his estate, respondents contend that

originally land bearing Sy.No.72 measured 12 acres

32 guntas. O.S.No.114/1947 was filed seeking for its

partition as joint family property. Said suit was ended

in compromise agreeing for 1/3 r d share in said land

along with other properties. Ex.Petition No.125/1956

filed in pursuance of said decree ended with delivery

of symbolic possession. Therefore, O.S.No.6/1969

was filed seeking actual possession of suit properties

in terms of judgment passed in O.S.No.114/1947.

28. Though, said judgment and decree was

challenged in R.A.No.77/2006, same was clubbed

along with R.A.No.146/2006 by modifying decree

passed in O.S.No.6/1969. For giving effect to, said

decree FDP no.15/2010 was filed. For execution of

decree in FDP No.15/2010, Ex.Petition No.44/2015

was filed. It is contended that applicant and his

family members were parties to all these proceedings

and never questioned judgment and decree passed

either in O.S.No.114/1947 or O.S.No.6/1969 and as

they were parties to said proceedings, application

under Order XXI Rule 97 to 99 of CPC was not

maintainable. It is also case of respondents that

despite basing their claim of title in respect of suit

property on order of grant of occupancy rights by

Land Tribunal, Kumta, in favour of applicant's father,

no evidence was led to establish fact that Pundlik

Naik had filed Form no.7 in respect of said land.

Order of Land Tribunal granting occupancy rights was

not produced. Though, it is contended that mere

production of order of Land Tribunal in first appeal

without stating any reasons for its non-production in

application and without assigning any reasons for

allowing application for additional evidence, first

appellate Court was not justified in remanding matter

to Executing Court with direction to take additional

evidence and to pass orders afresh, as same would

amount to giving opportunity to fill up gaps in

evidence without any just cause to prejudice of

decree holders.

29. Therefore, point that arises for

consideration in this appeal is:

"Whether first appellate Court was justified in remanding matter to Executing Court to pass fresh order on I.A.No.I filed by respondent under Order XLI Rules 97 to 99 of CPC ?"

30. Perusal of order passed by Executing Court

would reveal that main reasons assigned for dismissal

of third party application were that applicant's father

was a party to all previous litigations and as applicant

was not claiming any independent right, but, only as

legal heir, he would be bound by orders passed;

second reason was that though land bearing

Sy.No.72/1-8 was claimed to be granted by Land

Tribunal, applicant failed to produce any documents

to establish such grant; further Executing Court also

found that applicant was not in possession referring

to report that possession was handed over to decree

holder by executing possession warrant issued and

applicant failed to establish his possession.

31. Before first appellate Court, applicant filed

I.A.no.III under Order XLI Rule 27 of CPC for

additional evidence by way of production of

documents indicating grant of land. Said application

was allowed on ground that main controversy

between parties was with regard to grant of

occupancy rights in respect of suit land and therefore,

documents sought to be produced were necessary to

decide actual dispute between parties. In view of

allowing of application for additional evidence, first

appellate Court found fit to remand matter to

Executing Court to reconsider third party application

in the light of additional evidence to be led.

32. In view of above, contention of learned

counsel for respondents that there was no effort by

applicant to establish grant of land to applicant's

father would be incorrect.

33. However, contention that first appellate

Court would not be justified in remanding matter for

reconsideration after taking additional evidence would

be violative of prescribed mode of receiving additional

evidence in Rules 28 and 29 of Order XLI of CPC,

appears formidable.

34. High Court of Delhi in Lahorian Di Hatti

Vs. Shyam Lal Mehar Chand Jain reported in 2014

SCC OnLine Del 3899, an application under Rule XLI

Rule 27 of CPC cannot be devised to permit retrial of

entire case by setting clock back, as it would cause

grave prejudice to opposite party. Proper course

under such circumstances would be to direct

Executing Court to record additional evidence and to

send it back to first appellate Court for its decision

on merits.

35. Hon'ble Apex Court in Uttaradi Mutt vs.

Raghavendra Swamy Mutt, reported in (2018) 10

SCC 484, has held that without assigning any specific

reasons justifying reconsideration, first appellate

Court would not be justified in remanding main

matter. In view of above decision, Rule 28 would be

mandatory. Therefore, first appellate Court

committed material irregularity in remanding main

matter.

36. Reliance placed upon judgment dated

04.10.2021 passed by this Court in RSA

No.100254/2021, would be misconceived. Said appeal

arose out of order allowing third party application in

I.A.No.II filed by Ramakrishna Devappa Naik in

Ex.P.no.44/2015. However, in said matter, applicant

had got marked copy of order of Land Tribunal and

R.A.No.50/2019 filed against said order was allowed by

first appellate Court. This Court allowed second appeal

on ground that only on basis of Ex.P.8, order of Land

Tribunal, it was not possible to correctly appreciate

facts in issue and to pass proper judgment. On said

reasoning, appeal was allowed and matter remanded to

Executing Court for fresh disposal in accordance with

law by permitting parties to lead additional evidence

namely, production of Form No.7 and 10.

37. But in instant case, applicant produced

documentary evidence to establish grant of occupancy

rights by Land Tribunal along with I.A.No.III for

additional evidence. Said application having been

allowed, additional evidence ought to have been

recorded in compliance with procedure stipulated in

Order XLI Rule 28 and 29 of CPC.

38. For aforesaid reasons, order of first appellate

Court remanding entire matter would not be justified.

Point for consideration is answered in negative.

39. In result, I pass following:

ORDER

Appeal is allowed in part, judgment and decree

dated 04.06.2021 passed by Senior Civil Judge,

Kumta, in R.A. No. 52/2019 insofar as setting aside

judgment and decree dated 09.08.2019 passed by

Additional Civil Judge, Kumta in Ex.P.no.44/2015 and

remanding matter back for reconsideration after taking

additional evidence is set-aside.

First appellate Court is directed to permit

additional evidence in any of modes prescribed under

Order XLI Rule 28 of CPC. In case, it directs Executing

Court to record additional evidence, first appellate

Court shall decide appeal on merits there after.

No order as to costs.

Sd/-

JUDGE BVK