Mallappa Sattu Awaradi vs Balappa Mayappa Awaradi
2022 Latest Caselaw 5085 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

         DATED THIS THE 21 S T DAY OF MARCH, 2022

                          BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               R.S.A. NO.100760/2014 (PAR.)

BETWEEN

MALLAPPA SATU AWARADI
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O. CHINCHALI-591217,
TAL: RAIBAG, DIST: BELGAUM
                                              ...APPELLANT
(BY SRI.RAVI S. BALIKAI, ADV.)

AND

BALAPPA MAYAPPA AWARADI
SINCE DECEASED BY HIS LRS.

1.     NINGAWWA W/O BALAPPA AWARADI
       AGE: 70 YEARS, OCC: HOUSEHOLD,
       R/O.CHINCHALI-591217,
       TAL: RAIBAG, DIST: BELGAUM

2.     VITHAL S/O BALAPPA AWARADI
       AGE: 48 YEARS, OCC: AGRICULTURE,
       R/O.CHINCHALI-591217,
       TAL: RAIBAG, DIST: BELGAUM

3.     TAMMANI S/O BALAPPA AWARADI
       AGE: 43 YEARS, OCC: AGRICULTURE,
       R/O.CHINCHALI-591217,
       TAL: RAIBAG, DIST: BELGAUM

4.     SATAPPA S/O BALAPPA AWARADI
       AGE: 42 YEARS, OCC: AGRICULTURE,
       R/O.CHINCHALI-591217,
       TAL: RAIBAG, DIST: BELGAUM
                             2


5.    KRISHNA S/O BALAPPA AWARADI
      AGE: 34 YEARS, OCC: AGRICULTURE,
      R/O.CHINCHALI-591217,
      TAL: RAIBAG, DIST: BELGAUM

6.    SHIVARAJ S/O BALAPPA AWARADI
      AGE: 38 YEARS, OCC: AGRICULTURE,
      R/O.CHINCHALI-591217,
      TAL: RAIBAG, DIST: BELGAUM

7.    SATYAWWA W/O BALAPPA TOLE
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. KANCHAKARADI-591226,
      TAL: RAIBAG, DIST: BELGAUM

8.    NIRMALA W/O KAREPPA WAGGE
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. BEKKERI-591242,
      TAL: RAIBAG, DIST: BELGAUM

9.    SUSHILA W/O LAXMAN ARABHAVI
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. MEERAPURHATTI-591324,
      TAL: RAIBAG, DIST: BELGAUM

10.   SEVANTI W/O TAMMANI BANTE
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. NO.526, MARKET GALLI,
      RAIBAG-591306, DIST: BELGAUM

11.   PARVATI W/O SHI NGADI PUJARI
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. BOMMANNI-591246GALLI ,
      TQ: RAIBAG, DIST: BELGAUM

12.   AARATI W/O SIDDAPPA PAT EDAR
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. KABBUR-591209,
      TQ: CHIK ODI, DIST: BELGAUM

      BALAWWA W/O IT TAPPA @ APPASAHEB AWARADI
      SINCE DECEASED BY LRS.

13.   KRISHNAWWA W/O RAMA K OCHARI
      AGE: MAJOR, OCC: HOUSEHOLD WORK,
                               3


      R/O. BHIRADI-591234,
      TQ: RAIBAG, DIST: BELGAUM

13A. MAYAWWA W/O. RAMCHANDRA GENANNAVAR,
     AGE: 66 YEARS, OCC. HOUSEHOLD,
     R/O. BHIRADI , T Q. RAIBAG,
     DIST. BELAGAVI .

13B. LAXMIBAI W/O. VI THAL GONGADI ,
     AGE: 64 YEARS, OCC. HOUSEHOLD,
     R/O. AJIT NAGAR, CHINDHALI ,
     TQ. RAIBAG, DIST . BELAGAVI.

13C. SEVANTI W/O. APPASAB DEBGOL,
     AGE: 59 YEARS, OCC. HOUSEHOLD,
     R/O. MOLAWAL, T Q. ATHANI, DIST. BELAGAVI .

13D. SADASHIV S/O. RAMA KOCHERI ,
     AGE: 57 YEARS, OCC. AGRI CULT URE,
     R/O. BHIRADI , T Q. RAIBAG, DIST . BELAGAVI.

13E. APPASAB S/O. RAMA KOCHERI ,
     AGE: 55 YEARS, OCC. AGRI CULT URE,
     R/O. BHIRADI , T Q. RAIBAG, DIST . BELAGAVI.

13F. SHIDARAM S/O. RAMA KOCHERI ,
     AGE: 42 YEARS, OCC. AGRI CULT URE,
     R/O. BHIRADI , T Q. RAIBAG, DIST . BELAGAVI.

14.   SHIDDAWWA W/O APPASAHEB AWARADI
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. BHIRADI-591234,
      TQ: RAIBAG, DIST: BELGAUM

15.   MAHADEVI W/O SAHASHIV KOCHERI
      AGE: MAJOR, OCC: HOUSEHOLD,
      R/O. BHIRADI-591234,
      TQ: RAIBAG, DIST: BELGAUM
                                             ...RESPONDENTS
(BY SRI.K .B.RAVINDRA, ADV. FOR
SRI.RAHUL R., ADV. FOR R1 TO R12,
PROP. R13A, R13D, R13E, R13F HELD SUFFICIENT ,
PROP. R13B, R13C, R14 & R15 ARE SERVED)
                                     4


     THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAI NST
THE JUDGMENT AND DECREE DATED 30.06.2014 PASSED IN
R.A. NO.72/2008 ON THE FILE OF THE SENIOR CIVI L JUDGE
AND JMFC., RAIBAG, DISMISSING THE APPEAL FI LED AGAINST
THE JUDGMENT AND DECREE DATED 20.01.1998 AND THE
DECREE PASSED IN O.S. NO.72/1979 ON THE FI LE OF THE
CIVIL JUDGE (JR. DN.) RAIBAG, DECREEING THE SUIT FILED
FOR PARTITION AND SEPARAT E POSSESSION.

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

                              JUDGMENT

Heard.

2. With the consent of learned counsel for parties,

matter is taken up for final disposal.

3. This appeal is filed challenging judgment and

decree dated 30.06.2014 passed by Senior Civil Judge and

JMFC, Raibag in R.A. No.72/2008.

4. This is an appeal by defendant No.2 in O.S.

No.72/1979. Plaintiff Sri.Balappa Mayappa Awaradi filed

O.S. No.72/1979 seeking for relief of partition and

separate possession of his 1/4 t h share in suit schedule

properties. Suit came to be decreed on 20.01.1998.

Challenging said decree, appellant herein had filed appeal

in R.A. No.72/2008. During pendency of appeal,

appellants had filed I.A. No.12 under Order XLI Rule 27 of

CPC and I.A. No.13 under Order XIII Rules 1 and 2 of CPC

for additional evidence. As can be seen from certified copy

of order sheet of first appellate Court, made available,

I.A. Nos.12 and 13 were allowed on 14.02.2011.

Thereafter, appellant No.2 was examined as AW.1 on

09.03.2011 and several exhibits were marked. And on

01.04.2011, AWs.2 and 3 were examined. Subsequently,

on respondents' side, RW.1 was examined on 03.06.2011

and on 20.07.2011, RWs.2 and 3 were examined. On

behalf of respondents also exhibits were marked.

5. But at the time of disposal of appeal, first

appellate Court did not consider additional evidence led by

parties.

6. Sri.Ravi S. Balikai, learned counsel for

appellants submitted that sum and substance of additional

evidence was for clarifying genealogy, nature of grant

under original sanad and consequent entries in revenue

records. At the time of disposing of appeal, first appellate

Court has considered evidence led by parties before trial

Court, it committed material irregularity insofar as failure

to consider additional evidence led in appeal. Hence,

appeal deserves consideration for remand back to first

appellate Court.

7. Sri.K.B.Ravindra, learned counsel appearing on

behalf of Sri.Rahul R., learned counsel for respondent

Nos.1 to 12 is unable to dispute above submission. He

would however hasten to add the instant proceedings

arise out of a suit of year 1976 and remand would further

dilate the proceedings and frustrate decree. He would

however, submit that by fixing a time frame for fresh

disposal to the first appellate Court, appropriate orders

may be passed.

8. Heard learned counsel and perused record. It is

not in dispute that first appellate Court has not

considered additional evidence led by parties, while

passing impugned judgment and decree.

9. The powers and scope of first appellate Court

under Section 96 of CPC are well defined. It was observed

by Hon'ble Supreme Court in Murthy and Others Vs.

C.Saradambal and Others reported in 2021 SCC OnLine

SC 1219, referring to earlier decision in the case of

in Vinod Kumar vs. Gangadhar reported in (2015) 1

SCC 391, that Section 96 of CPC, delineated scope

and powers of First Appellate Court to the grounds raised

in the appeal, re-appreciation of evidence adduced by

parties and application of relevant legal principles and

decided case law while deciding whether judgment of trial

Court can be sustained or not. Following observations

would be relevant:

"42. It is also necessary to observe that the right to appeal is a creature of statute. The right to file an appeal by an unsuccessful party assailing the judgment of the Original Court is a valuable right and hence a duty is cast on the Appellate Court to adjudicate a first appeal both on questions of fact and applicable law. Hence, the re- appreciation of evidence in light of the contentions raised by the respective parties and judicial precedent and the law applicable to the case have to be conscientiously dealt with.

43. In the instant case, the Division Bench of the High Court has simply reversed the judgment of the learned Trial Judge in the absence of re- appreciation of evidence and without giving findings on questions of fact as well as on the applicable law and by not reasoning as to why the judgment of the learned Trial Judge was erroneous."

10. Admittedly, as first appellate Court failed to

consider additional evidence led by parties before it,

judgment and decree passed by it would be unsustainable.

Such error would be substantial question of law.

Therefore, following substantial question of law would

arise for consideration in this case.

"Whether the judgment and decree passed by first appellate Court is liable to be set aside for not considering additional evidence led by parties after first appellate Court allowed I.As. No.12 and 13 for leading additional evidence?"

11. However, instead of admitting appeal on said

substantial question of law and taking into account

vintage of the suit, it would be appropriate for this Court

to dispose of the appeal by remanding the matter back to

first appellate Court to consider additional evidence also

and to pass fresh judgment within a time frame.

Substantial question of law is answered in the affirmative.

12. Hence, I pass following:

ORDER

Appeal is allowed. Judgment and decree

dated 30.06.2014 passed by Senior Civil Judge

and J.M.F.C., Raibag in R.A. No.72/2008 is set

aside. R.A.No.72/2008 is restored to file.

herein are directed to appear before first

Appellate Court without awaiting fresh notice

on 18.04.2022 and take further orders from

the Court.

First Appellate Court shall ensure service

and 15, unless they appear voluntarily.

All the parties are directed to cooperate

for early disposal of the appeal without

seeking unnecessary adjournments.

The first appellate Court shall dispose of

the appeal in accordance with law after taking

note of additional evidence led before first

Appellate Court also, as early as possible and

within period of three months from date of

completion of service of notice to all the

parties as directed above.

No order as to costs.

Sd/-

JUDGE

Rsh / cl k