Karnataka High Court
Yagappa vs Chinnappa on 14 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO. 1758 OF 2012 (DEC/INJ)
BETWEEN:
YAGAPPA,
S/O LATE DODDA CHINNAPPA
SINCE DEAD BY HIS LRS:
1. SHRI CHINNAPPA
S/O LATE YAGAPPA
AGED ABOUT 53 YEARS
R/AT YADAVANAHALLI
VILLAGE, ATTIBELE HOBLI
ANEKAL TALUK
BANGALORE RURAL DISTRICT-562107
2. SHRI JONES
S/O LATE YAGAPPA
AGED ABOUT 49 YEARS
R/AT YADAVANAHALLI
VILLAGE,ATTIBELE HOBLI
ANEKAL TALUK
BANGALORE RURAL DISTRICT-562107
...APPELLANTS
(BY SRI.T.N.VISHWANATH, ADVOCATE FOR APPELLANTS)
AND:
1. CHINNAPPA
S/O LATE CHOWDAPPA
DEAD BY LRS
2
1(a). SMT JASINITHA
W/O LATE C. CHINNAPPA
AGED ABOUT 65 YEARS
R/AT NO.39,
R.S. NAIDUNAGAR
KASARI PUSHPATHRAMA
MYSORE-570 007
1(b) . SHRI. JAGADISH
S/O LATE C. CHINNAPPA
AGED ABOUT 39 YEARS
R/AT R.S. NAIDUNAGAR
KASARI PUSHPATHRAMA
MYSORE-570 007
1(c) . SHRI PITER CHOWVALU
S/O LATE C. CHINNAPPA
AGED ABOUT 31 YEARS
R/AT NO.39,
R.S. NAIDUNAGAR
KASARI PUSHPATHRAMA
MYSORE 570 007.
1(d) . SMT SELVI SHAMALA
D/O LATE C. CHINNAPPA
AGED ABOUT 33 YEARS
R/AT NO.39,
R.S. NAIDUNAGAR
KASARI PUSHPATHRAMA
MYSORE 570 007.
2. SHRI SHANTHAKUMAR
S/O LATE CHORAPPA
MAJOR
R/AT YEDAVANAHALLI VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK
BANGALORE DISTRICT-562107
3. SHRI AROGYASWAMY
S/O LATE DODDA CHINNAPPA
DEAD BY HIS LRS
3
3(a). SHRI KANIKYASWAMY
S/O LATE AROGYASWAMY
AGED ABOUT 52 YEARS
R/AT YEDAVANAHALLI VILLAGE
ATTIBELE HOBLI
ANEKAL TALUK
BANGALORE DISTRICT-562107
3(b) . SMT LAOURDU MARY
D/O LATE AROGYASWAMY
AGED ABOUT 62 YEARS
R/AT BYRATHI VILLAGE
DOODAGUBBI
BANGALORE- 542 149
3(c) . SMT JAYA MARY
D/O LATE AROGYASWAMY
AGED ABOUT 58 YEARS
R/AT BYRATHI VILLAGE
DODDAGUBBI,
BANGALORE-542 149
3(d) . SMT MISS LEELA
D/O LATE AROGYASWAMY
AGED ABOUT 46 YEARS
R/AT BYRATHI VILLAGE
DODDAGUBBI,
BANGALORE-542 149
4. SMT MAYA
W/O SHRI CHATURBUJ
MAJOR BY AGE
R/AT NO.7, SRIKANTAN LAYOUT,
KUMARA PARK
BANGALORE-560 03.
5. SHRI. BALARAJU,
S/O LATE MARIYAPPA,
AGED ABOUT 55 YEARS,
R/AT YEDAVANAHALLI VILLAGE,
ATTIBELE HOBLI,
ANEKAL TALUK,
BANGALORE DISTRICT-562107.
4
6. SHRI METHOSE,
S/O LATE YAGAPPA,
MAJOR BY AGE,
R/AT YEDAVANAHALLI VILLAGE,
NEAR CHURCH,
ATTIBELE HOBLI,
ANEKAL TALUK
BANGALORE DISTRICT-562107.
...RESPONDENTS
(BY SRI. S.KALYAN BASAVARAJ, ADVOCATE FOR C/R2, NOTICE
TO R-4 IS HELD SUFFICIENT, R1 (a to d) AND R3 (a to d)
SERVED, R5 AND R6 SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 27.06.2012 PASSED IN R.A.NO.29/2002 ON
THE FILE OF PRESIDING OFFICER, FAST TRACT COURT-IV,
BENGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
08.01.2001 PASSED IN O.S.NO.279/1989 ON THE FILE OF I
ADDL. CIVIL JUDGE (SR.DN) BANGALORE RURAL DISTRICT,
BANGALORE.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the legal representatives of
the deceased defendant No.2 challenging the concurrent
finding of both the courts that the plaintiffs are the owners
of the suit property and that they are entitled for perpetual
injunction against the defendants interfering with their
possession.
2. The parties shall henceforth be referred to as they
were arrayed before the Trial Court. The appellants herein
were the legal representatives of deceased defendant
No.2, while the respondents herein are the legal
representatives of plaintiff Nos.1 and 2, defendants Nos.1
and 4.
3. The suit in O.S.279/1989 was filed for declaration
that the plaintiffs are the absolute owners of the suit
schedule properties and for permanent injunction. The suit
schedule properties are land bearing Sy.Nos.23 of
Yaduvanahalli village, Attibele Hobli, Anekal Taluk and
Sy.No.26/1 of Giddanahalli village, Attibele Hobli, Anekal
Taluk.
4. The plaintiffs claim that these two properties were
purchased by their father Chowrappa in terms of two
deeds of absolute sale dated 15.12.1950 and 12.03.1952.
They claim that after the death of their father, they
became the owners of the properties and their names were
entered in the revenue records. They claim that when a
partition took place amongst the father of the plaintiffs and
his brothers in the year 1964, the suit properties were not
included as it was the absolute properties of their father.
Therefore, they contended that the defendants too were
consensus ad idem over the fact that the suit properties
were the absolute properties of the plaintiffs. They claim
that the defendants, without notice to the plaintiffs, had
managed to get their names entered in the revenue
records for the year 1971-72 and taking advantage of this
entry, they were attempting to interfere with the right,
title and interest.
5. The defendants contended that the suit properties
were jointly owned by the father of the plaintiffs and
defendants and that in the partition in the year 1964, the
suit properties were orally divided amongst the plaintiffs'
father and the defendants. They claim that they alienated
the portion that fell to their share in favour of defendant
No.4. Hence, the plaintiffs were bound by the said sale.
6. The plaintiffs amended the plaint in view of the
contentions raised in the written statement and contended
that the sale in favour of defendant No.4 did not bind the
plaintiffs. The Trial Court framed issues and recorded the
evidence of the parties and in terms of the judgment and
decree dated 08.01.2001, decreed the suit of the plaintiffs
and declared that the plaintiffs are the owners of the suit
schedule properties.
7. Feeling aggrieved by the aforesaid decree, the
defendants filed R.A. No.29/2002, which was allowed on
27.06.2012 and the case was remitted back to the Trial
Court. This was again challenged by the plaintiffs in
M.S.A.No.65/2007 before this Court. The appeal in
M.S.A.No.65/2007 was allowed on 18.06.2010 and the
order of judgment was set-aside. Consequently, the First
Appellate Court took up the appeal for consideration.
During the course of the proceedings before it, an
application under Order 41 Rule 27 of CPC was filed by the
defendants placing on record certain additional documents.
The First Appellate Court rejected the application as well as
the appeal in terms of the judgment and decree dated
27.06.2012.
8. Feeling aggrieved by the aforesaid judgment and
decree of the Trial court and the First Appellate Court, the
present Regular Second Appeal is filed.
9. The learned counsel for the appellants submitted
that the defendants could not adduce evidence before the
Trial Court due to the reasons beyond their control and an
attempt made by the defendants before the First Appellate
Court to produce documentary evidence to establish that
the suit properties were divided orally was turned down
unjustly. He submitted that the First Appellate Court did
not consider the application filed under Order 41 Rule 27 of
CPC with the required amount of seriousness. He,
therefore, submitted that this throws up a substantial
question of law that needs consideration.
10. Learned counsel for the appellants and learned
counsel for the respondents on the other hand submitted
that the defendants did not justify the production of the
documents at the appellate stage as stipulated under
Order 41 Rule 27 of CPC. He submitted that the averments
made in the affidavit accompanying application did not
satisfy the requirement of Order 41 Rule 27 of CPC and
therefore, no interference is necessary with the judgment
and decree of the First Appellate Court.
11. It is seen from the record that the defendants
had filed the application under Order 41 Rule 27 CPC to
place on record the documents namely, RTC Extracts for
the years 1971-72 to 2001-2002 in respect of Sy.Nos.23,
mutation proceedings extracts, tax paid receipts, an
application dated 20.01.1995 filed before the Tahasildar,
partition deed, Krishi pass book, encumbrance certificate,
award notices dated 16.01.2001 and 16.05.1995.
12. I have considered the submissions made by
the learned counsel for the parties. As rightly contended by
the learned counsel for the appellants/defendants, the First
Appellate Court did not consider the I.A. filed under Order
41 Rule 27 of CPC seriously having regard to the
documents placed before it. Hence, the substantial
question of law that arises for consideration in this appeal
is as follows;
" Whether the First Appellate Court committed
an error in not considering the application filed
under Order 41 Rule 27 of Code of Civil
Procedure on the touch stone of the procedure
prescribed therein, more particularly in view of
the fact that the appeal was not filed by the
defendant No.2 but was filed by his legal
representatives?"
13. A perusal of the order passed by the First
Appellate Court would indicate that First Appellate Court
had casually considered the application under Order 41
Rule 27 of CPC in the following words;
"35. On this background let me examine the
application filed by the appellant to lead the
additional evidence. The appellants by way of
additional evidence have produced list with 6
documents before this court. All the documents
are only the revenue documents. The dispute
between the appellant and respondent is in
respect of title of the suit schedule properties.
The respondents are claiming their right over the
suit schedule property on the ground that the suit
schedule properties are the self acquired
properties of Chowrappa and he has purchased
the suit schedule property under two registered
sale deed Ex.P.1 and 2. On the other hand the
appellants are claiming the right over the suit
property on the ground that the suit schedule
properties are the joint family properties and
Chowrappa was the Kartha of the joint family and
they were purchased in the name of Chowrappa
on behalf of joint family and subsequently the suit
schedule properties were fallen to the share of
the appellants and Chowrappa in the family
partition in the year 1965.
36. The appellants have to establish before the
courts the existence of the joint family and
Chowrappa was the kartha of the joint family and
the suit schedule properties were purchased when
Chowrappa was the kartha of the joint family on
behalf of the joint family.
37. The proposed documents are not the title
documents and they will not confer any title in
favour of the appellants. The appellants have to
establish before this court that despite exercising
the diligence they could not produce the proposed
documents. The proposed documents are all
copies of revenue documents and they are public
documents and they are available at all point of
time. Under these circumstances, the proposed
documents are not at all necessary in order to
dispose of this appeal. The appellants are also fail
to made out sufficient grounds under order 41
rule 27 CPC to lead the additional evidence.
Hence the application is liable to be dismissed.
Hence I answer point No.1 in the Negative."
14. The finding recorded by the First Appellate Court
do not qualify that the application was duly considered.
What has to be borne in mind is that defendant Nos.1 and
2 had already sold the suit property to defendant No.4.
The appeal before the First Appellate Court was filed by
the legal representatives of the defendant No.2, apparently
in an attempt to safeguard the interest of the purchaser-
defendant No.4. This is evident from the fact that the
defendant Nos.1 and 2, filed their written statement
setting out the facts that transpired between them and the
father of plaintiffs. It may be that after the case was set
down for trial, they lost interest in adducing evidence
before the Trial Court. However, after the death of
defendant No.2, perhaps due to change in mind, his legal
representatives have felt it proper to furnish the
documents in support of the averments made in the
written statement. The First Appellate Court should also
not forget that it is bound to render justice between the
parties within the frame work of law, rather than dwelling
on technicalities. It was, therefore, incumbent upon the
First Appellate Court to have considered the application
from this stand. Further, the First Appellate Court has
assumed that the additional documentary evidence were
revenue documents, while some of the documents were
notices issued by the Land Acquisition Officer, Indemnity
bond etc. It is thus clear that the First Appellate Court has
casually considered the application, resulting in depriving a
fair opportunity to the parties. Hence, the substantial
question of law framed by this Court deserves to be
answered in favour of the legal representatives of
defendant No.2/appellants. Consequently, the impugned
judgment and decree passed by the First Appellate Court
deserves to be set aside and to remit the case to the First
Appellate Court, which shall consider the application filed
by the defendants under Order 41 Rule 27 of CPC in
accordance with law and also consider the relevancy and
admissibility of the documents produced by the legal
representatives of defendant No.2/appellants herein.
However, this shall not be without compensating the
plaintiffs for the enormous time spent during this litigation.
Hence the following;
ORDER
i) The impugned judgment and decree
passed by the First Appellate Court dated
27.06.2012 in R.A.No.29/2002 is set aside.
ii) The case is remitted back to the First
Appellate Court, which shall consider the
application filed by the defendants under Order
41 Rule 27 of CPC in accordance with law and
pass appropriate orders. If the First Appellate
Court divides to allow the application, then
compensatory cost of Rs.1,00,000/- shall be
imposed upon the legal representatives of
defendant No.2/appellants herein. It is
needless to mention that if the application is
rejected, the legal representatives of
defendant No.2/appellants herein shall be
exempt from payment of the cost.
iii) It is needless to mention that if the First
Appellate Court allows the application under
Order 41 Rule 27 of CPC it shall follow the
procedure as laid down by a co-ordinate Bench
of this Court in Shanthaveerappa vs.
Janardhanachari (ILR 2007 Kar 1127) case.
iv) The parties are directed to appear before
the First Appellate Court on 22.04.2022.
(v) Office is directed to return the records to
the First Appellate Court at the earliest.
Sd/-
JUDGE
hdk
