Shri.Neelakant vs Shri.Shankar
2022 Latest Caselaw 9434 Kant

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                                              RSA NO.100691 of 2016



     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

            DATED THIS THE 23RD DAY OF JUNE, 2022

                            BEFORE
             THE HON'BLE MR JUSTICE E.S.INDIRESH
     REGULAR SECOND APPEAL NO. 100691 OF 2016 (DEC/INJ-)

BETWEEN:

1.     SHRI.NEELAKANT
       S/O BASALINGAPPA INDISHETTAR,
       AGE: 31 YEARS, OCC: AGRICULTURE,
       R/O: MAGYANKOPP-591106,
       TALUKA KHANAPUR,
       DIST: BELAGAVI.

2.     SHRI.VISHAL BASALINGAPPA INDISHETTAR
       AGE: 28 YEARS, OCC: AGRICULTURE,
       R/O: MAGYANKOPP-591106,
       TALUKA KHANAPUR,
       DIST: BELAGAVI.

                                                ...APPELLANTS

(BY SRI. C. S. SHETTAR FOR SRI.JAGADISH PATIL, ADVOCATE)

AND:

1.     SHRI.SHANKAR SIDDAPPA CHUNGADI,
       AGE: 55 YEARS,
       OCC: AGRICULTURE and SERVICE,
       R/O: BAZAR GALLI, M.K.HUBLI-591118,
       TALUKA BAILHONGAL, DIST: BELAGAVI.

2.     SHRI.SHRIDHAR SIDDAPPA CHUNGADI,
       AGE: 42 YEARS, OCC: AGRICULTURE,
       R/O: BAZAR GALLI, M.K.HUBLI-591118,
       TALUKA BAILHONGAL, DIST: BELAGAVI.
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                                              RSA NO.100691 of 2016



3.   SMT.SHANTAWWA
     W/O BASVANNEPPA RAHUT,
     AGE: 62 YEARS, OCC: HOUSEHOLD,
     R/O: BAZAR GALLI, M.K.HUBLI-591118,
     TALUKA BAILHONGAL,
     DIST: BELAGAVI.

4.   SMT.KASHAWWA
     W/O SIDDAPPA CHUNGADI,
     AGE: 82 YEARS, OCC: HOUSEHOLD,
     R/O: BAZAR GALLI, M.K.HUBLI-591118,
     TALUKA BAILHONGAL, DIST: BELAGAVI.

                                              ...RESPONDENTS

(BY SRI. H. R. GUNDAPPA FOR SRI.GIRISH C. KATTIMANI,
ADVOCATE FOR C/R1-R4.)
                               ---
     THIS RSA IS FILED U/SEC.100 R/W 42 RULE 1 OF CPC,
1908, AGAINST THE JUDGEMENT & DECREE DTD:05.08.2016
PASSED IN R.A.NO.238/2012 ON THE FILE OF THE XI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DTD:10.10.2012, PASSED IN O.S. NO.29/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE AT KHANAPUR,
PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.

                          JUDGMENT

This Regular Second Appeal is filed by the defendants,

assailing the judgment and decree dated 05.08.2016 passed in

R.A.No.238/2012 on the file of the XI Addl. District and Sessions

Judge, Belagavi (hereinafter referred to as 'the First Appellate

RSA NO.100691 of 2016

Court', for brevity), confirming the judgment and decree dated

10.10.2012 passed in O.S.No.29/2010 on the file of the Senior Civil

Judge, Khanapur (hereinafter referred to as 'the trial Court', for

brevity), decreeing the suit of the plaintiffs.

2. For the sake of convenience, the parties to this appeal

shall be referred to in terms of their status and ranking before the

trial Court.

3. The plaInt averments are that, the plaintiffs are the

children of Siddappa Shivalingappa Chungadi. Plaintiffs 1 to 3 are

the children of Siddappa Shivalingappa Chungadi and plaintiff No.4

(Smt. Kashawwa). Father of the plaintiffs No.1 to 3 died on

20.07.2007 leaving behind the suit schedule properties and

thereafter, the plaintiffs succeeded to the estate left behind by the

said Siddappa Shivalingappa Chungadi. It is the case of the

plaintiffs that, during his life time, the father of plaintiffs No.1 to 3 -

Siddappa Shivalingappa Chungadi was managing the property as

Karta of the joint family and therefore,, disputed the interference

made by the defendants. It is further stated in the plaint that, the

said Siddappa Shivalingappa Chungadi used to take the assistance

of Smt. Sharadabai (grandmother of defendants) as she came from

RSA NO.100691 of 2016

the agricultural family. It is further stated in the plaint that, taking the

advantage of the fact that her son Basavalingappa was not well

versed in the agricultural aspects, the said Sharadabai was

managing the said agricultural lands belonging to said Siddappa

Shivalingappa Chungadi. Therefore, it is the case of the plaintiffs

that, the said Sharadabai has no manner of right title of interest

insofar as suit schedule properties and the defendants being the

grandchildren of said Sharadabai, are interfering with the suit

schedule property and as such, the plaintiffs filed O.S. No.29/2010

before the trial Court seeking the relief of declaration and

consequential relief of permanent injunction against the defendants.

The plaintiffs have also challenged the release deed dated

26.07.2008 said to have been executed by Sharadabai, as not

binding on the plaintiffs.

4. On service of notice, defendants entered appearance

and filed detailed written statement and admitted that the plaintiffs

No.1 to 3 are the children of Siddappa Shivalingappa Chungadi and

plaintiff No.4. It is the specific defence of the defendants that, one

Sri.Neelakantappa Indishettar married Smt. Sharadabai and the said

Neelakantappa Indishettar died. Sri. Neelakantappa had a son -

Basalingappa Indishettar and the defendants are the children of the

RSA NO.100691 of 2016

said Basalingappa Indishettar. It is further stated in the written

statement that, the father of the plaintiffs No.1 to 3 Siddappa

Shivalingappa Chungadi had developed a relationship with

Sharadabai (grandmother of the defendants) and the said Siddappa

has given certain properties to said Sharadabai. It is also stated

that, the said Siddappa Shivalingappa Chungadi has sold certain

properties to Smt.Sharadabai. However, no sale deed was

registered by the said Siddappa Shivalingappa Chungadi in favour of

Sharadabai and however, the said Sharadabai was in actual

possession of the suit schedule properties. It is further averred in

the written statement that, in terms of the release deed dated

26.07.2008, defendants became the owner in possession of the suit

schedule land and accordingly, it is the case of the defendants that

the plaintiffs have made a false claim with regard to suit schedule

property.

5. The trial Court based on the pleadings on record

formulated the issues for its consideration. In order to establish their

case, plaintiffs have examined 3 witnesses as PWs.1 and 3 and got

marked 21 documents and the same were marked as Exs.P1 to

P21. Defendants have examined 2 witnesses as DWs.1 and 2 and

got marked 53 documents and the same were marked as Ex.D1 to

RSA NO.100691 of 2016

D.53 The trial Court after considering the material on record by its

judgment and decree dated 10.10.2012, decreed the suit filed by the

plaintiffs and declared that the release deed dated 26.07.2008

executed by the said Sharadabai is not binding on the plaintiffs.

Feeing aggrieved by the same, defendants have preferred

R.A.No.238/2012 on the file of the First Appellate Court and the

appeal was resisted by the plaintiffs.

6. The First Appellate Court after considering the material

on record, by its judgment and decree dated 05.08.2016, dismissed

the appeal, consequently, confirmed the judgment and decree dated

10.12.2012 passed in O.S.No.29/2010. Feeling aggrieved by the

same, defendants have presented this Regular Second Appeal.

7. This Court by order dated 14.03.2017 admitted the

appeal and formulated the following substantial questions of law:

i. Whether the courts below after having found that the respondents/plaintiffs were not in possession of the suit properties on the date of suit and that they did not seek the relief of possession from the appellants, were justified in holding that they are entitled to possession of the suit property from the appellants?

ii. Whether the I Appellate Court committed an error in law in dismissing the appeal without deciding the

RSA NO.100691 of 2016

application filed under Order XLI Rule 31 of Code of Civil Procedure?

8. I have heard Sri. C. S. Shettar for Sri. Jagadish Patil,

learned counsel appearing for the appellants and Sri. H. R.

Gundappa for Sri. Girish C. Kattimati, learned counsel appearing for

the respondents 1 to 4.

9. Sri. C. S. Shettar, learned counsel appearing for the

appellants contended that, the appellants herein have filed an

application before the First Appellate Court under Order 41 Rule 27

of Code of Civil Procedure and produced certain documents to

establish that the schedule properties were registered in the name of

Sharadabai and those documents have not been considered by the

First Appellate Court. It is further argued that there is no whisper

about the application filed by the appellants under Order 41 Rule 27

of Code of Civil Procedure in the impugned judgment and decree

passed by the First Appellate Court and ignoring the same amounts

to procedural irregularity and the same requires to be set right in this

appeal. In this regard, he refers to the substantial question of law

No.(ii) referred to above.

RSA NO.100691 of 2016

10. Per contra, Sri. H. R. Gundappa, learned counsel

appearing for the respondents - plaintiffs sought to justify the

impugned judgment and decree passed by the Courts below.

11. Having heard the learned counsel appearing for the

parties, in the light of the submission made by Sri. C. S. Shettar

learned counsel appearing for the appellants that the First Appellate

Court ignored the application filed by the appellants under Order 41

Rule 27 of Code of Civil Procedure, I have carefully examined the

original records made available from the First Appellate Court,

wherein the appellants have filed the application under Order 41

Rule 27 of Code of Civil Procedure on 28.03.2016, for which the

learned Presiding Officer has put his signature. In that view of the

matter, following the law declared by the Hon'ble Apex Court in the

case of Jatinder Singh and another Vs. Mehar Singh and others.

reported in AIR 2009 SC 354, wherein paragraphs 4 and 5 it is held

as under:

"4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of 2 3 additional evidence under Order 41 Rule

RSA NO.100691 of 2016

27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.

5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."

12. It is also relevant to extract the dictum of the Apex Court

in the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased)

by LRs. reported in (2001) 3 SCC 179, wherein the Hon'ble Apex

Court while interpreting Order 41 Rule 31 of Code of Civil Procedure

has held that it is the duty of the First Appellate Court to give finding

on all the aspects raised by before the said Court as the First

Appellate Court is the last Court for giving finding on the facts. In

that view of the matter, non-consideration of the application filed by

the defendants/appellants herein by the First Appellate Court

requires reconsideration by the First Appellate Court as the same

would derogate the provisions contained under Order 41 Rule 31 of

Code of Civil Procedure. In the result, I find force in the submission

made by Sri. C. S. Shettar, learned counsel appearing for the

RSA NO.100691 of 2016

appellants and the substantial question of law No.(ii) favours the

appellants herein and accordingly, appeal is remanded to the First

Appellate Court for fresh consideration on merits. In the result, I

pass the following:

ORDER

i. Appeal is allowed;

ii. Judgment and decree dated 05.08.2016 on the file

of the XI Addl. District and Sessions Judge,

Belagavi, is set aside and the matter is remanded

to the First Appellate Court to decide the appeal in

terms of the observations made above;

iii. First Appellate Court is directed to dispose of the

appeal within an outer limited of six months from

the date of receipt of this judgment and it is open

for the parties to urge all the contentions available

for them in the circumstances of the case;

iv. It is also made clear that, since the parties to the

appeal are represented through their learned

counsel before this Court, it is convenient to direct

RSA NO.100691 of 2016

the parties to appear before the First Appellate

Court on 04.08.2022 without waiting further notice

from the First Appellate Court.

Sd/-

JUDGE

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