Karnataka High Court
Smt. Kempamma vs Smt. Rathnamma on 5 December, 2023
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NC: 2023:KHC:43944
MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
MISCELLANEOUS SECOND APPEAL NO. 33 OF 2022
C/W
MISCELLANEOUS SECOND APPEAL NO. 7 OF 2021,
MISCELLANEOUS SECOND APPEAL NO. 26 OF 2021,
MISCELLANEOUS SECOND APPEAL NO. 34 OF 2022
IN MSA NO.33/2022
BETWEEN:
SMT. RATHNAMMA,
S/O. M. SIDDAPPA,
AGED ABOUT 50 YEARS,
R/AT CHINNANAYAKANAPALYA,
NAGASANDRA POST-560 073,
BANGALORE NORTH TALUK.
...APPELLANT
(BY SRI. VINOD PRASAD, ADVOCATE)
AND:
Digitally 1. SMT. KEMPAMMA,
signed by
SUMA W/O. LATE BYRAPPA,
Location: AGED ABOUT 85 YEARS,
HIGH (SINCE DECEASED REPRESENTED
COURT OF
KARNATAKA BY HER DAUGHTER CHIKKACHENNAMMA
R5 HEREIN WHO IS ALREADY ON RECORD)
2. SRI. JAYARAMAIAH,
S/O SRI. CHANNAPPA,
AGED ABOUT 43 YEARS
3. SRI. NAGESH,
S/O SRI. CHANNAPPA,
AGED ABOUT 40 YEARS,
RESPONDENTS 1 TO 3
ARE ALL RESIDENTS OF
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
LAKKENAHALLI VILLAGE,
DASANAPURA HOBLI-562 162,
BANGALORE NORTH TALUK.
4. SRI. CHANNAPPA,
S/O. LATE BYRAPPA,
AGED ABOUT 65 YEARS,
R/AT MANTHANAKURCHI VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK-562 123,
BANGALORE RURAL DISTRICT.
5. SRI. CHIKKACHENNAMMA,
D/O. LATE BYRAPPA,
AGED ABOUT 70 YEARS,
KENGANAHALLI VILLAGE,
SHIVANAPURA POST,
DASANAPURA HOBLI-562 162,
BENGALURU NORTH TALUK.
...RESPONDENTS
(RESPONDENT NO.1 DEAD REPRESENTED BY RESPONDENT NO.5;
BY SRI. H.P.LEELADHAR, ADVOCATE FOR RESPONDENT NOS.2 AND
R3;
NOTICE SERVED ON RESPONDENT NOS.4 AND 5)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF THE
CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 23.12.2020 PASSED IN R.A.NO.162/2015 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, WHEREBY IT SET ASIDE THE JUDGMENT
AND DECREE DATED 07.10.2015 PASSED IN O.S.NO.50/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA DECREEING
THE SUIT AND REMANDED BACK THE MATTER TO TRIAL COURT FOR
FRESH DISPOSAL.
IN MSA NO. 7 OF 2021:
BETWEEN:
SMT. KEMPAMMA
SINCE DEAD BY LRS ALREADY
BROUGHT ON RECORD AS A
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
RESPONDENT NO.3
1. SHRI. JAYARAMAIAH
S/O SHRI. CHANNAPPA
AGED ABOUT 49 YEARS,
R/AT LAKKENAHALLI VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562123.
2. SHRI. NAGESHA
S/O SHRI. CHANNAPPA,
AGED ABOUT 46 YEARS,
R/AT LAKKENAHALLI VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562123.
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
AND:
1. SMT. RATHNAMMA
W/O M. SIDDAPPA,
AGED ABOUT 56 YEARS,
R/AT CHINNANAYAKANAPALYA,
NAGASANDRA POST,
BANGALORE NORTH TALUK,
BENGALURU-562123.
2. SHRI. CHANNAPPA
S/O LATE BYRAPPA,
AGED ABOUT 71 YEARS,
R/AT MUNTHANAKURCHI VILLAGE,
KASABA HOBILI,
NELAMANGALA TALUK,
BANGLAORE RURAL DISTRICT,
PIN-562123.
3. SMT. CHIKKA CHANNAMMA
W/O ARASAAIAH,
D/O LATE BYAPPA,
AGED ABOUT 76 YEARS,
R/AT KENGANAHALLI VILLAGE,
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
SHIVANAPURA POST,
DASANAPURA HOBLI,
BANGLAORE NORTH TALUK,
BENGALURU-562123.
...RESPONDENTS
(BY SRI. VINOD PRASAD, ADVOCATE FOR RESPONDENT NO.1;
NOTICE SERVED ON RESPONDENT NO.2;
VIDE ORDER DATED 01.10.2021, SERVICE OF NOTICE TO
RESPONDENT NO.3 IS HELD SUFFICIENT)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED
IN RA.NO.162/2015 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT
ALLOWED THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE
DATED 07.10.2015 PASSED IN O.S.NO.50/2009 ( OLD NO.316/1999)
ON THE FILE OF SENIOR CIVIL JUDGE NELAMANGALA, AND
REMANDED BACK THE MATTER TO TRIAL COURT FOR FRESH
DISPOSAL.
IN MSA NO. 26 OF 2021:
BETWEEN:
SMT. KEMPAMMA
W/O LATE BYRAPPA,
SINCE DEAD BY LRS
ARE BROUGHT ON RECORD
BY THE APPELLANT IN THE
1ST APPELLATE COURT
1. SHRI. JAYARAMAIAH
S/O SHRI. CHANNAPPA
AGED ABOUT 49 YEARS,
R/AT. LAKKENAHALLI VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562123.
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
2. SHRI. NAGESH
S/O SHRI. CHANNAPPA,
AGED ABOUT 46 YEARS,
R/AT LAKKENAHALLI VILLAGE,
DASANAPURA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562123.
...APPELLANTS
(BY SRI. LEELADHAR H.P., ADVOCATE)
AND:
1. SMT. RATHNAMMA
W/O M. SIDDAPPA,
AGED ABOUT 56 YEARS,
R/AT CHINNANAYAKANAPALYA,
NAGASANDRA POST,
BANGALORE NORTH TALUK,
BENGALURU-562123.
2. SHRI. CHANNAPPA
S/O LATE BYRAPPA,
AGED ABOUT 71 YEARS,
R/AT MUNTHANAKURCHI VILLAGE,
KASABA HOBILI,
NELAMANGALA TALUK,
BANGLAORE RURAL DISTRICT,
PIN-562123.
...RESPONDENTS
(BY SRI. VINOD PRASAD, ADVOCATE FOR RESPONDENT NO.1;
NOTICE SERVED ON RESPONDENT NO.2)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.12.2020 PASSED
IN R.A.NO.29/2016 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT
ALLOWED THE APPEAL AND SET ASIDE THE JUDGMENT DATED
07.10.2015 PASSED IN O.S.NO.58/2009 (OLD O.S. NO.816/1999)
ON THE FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA,
DISMISSING THE SUIT FOR DECLARATION AND REMANDED BACK
THE MATTER TO TRIAL COURT FOR FRESH DISPOSAL.
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
IN MSA NO. 34 OF 2022
BETWEEN:
SMT. RATHNAMMA
S/O M. SIDDAPPA,
AGED ABOUT 50 YEARS,
R/AT CHINNANAYAKANAPALYA,
NAGASANDRA POST- 560 073.
BANGALORE NORTH TALUK.
...APPELLANT
(BY SRI. VINOD PRASAD, ADVOCATE)
AND:
1. SMT.KEMPAMMA
W/O LATE BYRAPPA
AGED ABOUT 85 YEARS
(WRONGLY MENTIONED
AS W/O CHANNAPPA)
AGED ABOUT 63 YEARS
2. SRI. JAYARAMAIAH
S/O SRI. CHANNAPPA,
AGED ABOUT 43 YEARS
3. SRI. NAGESH
S/O SRI. CHANNAPPA,
AGED ABOUT 40 YEARS
RESPONDENTS 1 TO 3
ALL ARE RESIDENTS
LAKKENAHALLI VILLAGE
DASANAPURA HOBLI-562 162
BANGALORE NORTH TALUK.
4. SRI. CHANNAPPA
S/O LATE BYRAPPA,
AGED ABOUT 65 YEARS,
R/AT MANTHANAKURCHI VILLAGE,
KASABA HOBLI,
NELAMANGALA TALUK-562123,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI. H.P LEELADHAR, ADVOCATE FOR RESPONDENT NOS.1 TO
3)
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MSA No. 33 of 2022
C/W MSA No. 7 of 2021
MSA No. 26 of 2021
MSA No. 34 of 2022
THIS MSA IS FILED UNDER SECTION 43 RULE 1(U) OF CPC
AGAINST THE ORDER DATED 23.12.2020 PASSED IN R.A.
NO.29/2016 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU, WHEREBY IT ALLOWED
THE APPEAL AND SET ASIDE THE JUDGMENT DATED 07.10.2015
PASSED IN O.S.NO.58/2009 ON THE FILE OF THE SENIOR CIVIL
JUDGE, NELAMANGALA.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant in MSA No.33/2022 has challenged the
judgment and decree dated 23.12.2020 passed by the
Principal District Judge, Bengaluru Rural District,
Bengaluru, in R.A.No.162/2015, by which, the appeal was
allowed and the case was remitted back to the Trial Court
for reconsideration and de novo trial.
2. MSA No.34/2022 is filed challenging the
judgment and decree dated 23.12.2020 passed by the
Principal District Judge, Bengaluru Rural District,
Bengaluru, in R.A. No.29/2016 by which, the appeal was
allowed and the case was remitted back to the Trial Court
for reconsideration and a de novo trial.
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3. The MSA Nos.7/2021 and 26/2021 are filed
challenging the very same judgment and decree by which
the appeals are allowed and the cases were remitted back
to the Trial Court for reconsideration and a de novo trial.
4. The parties henceforth be referred to as they
were arrayed before the Trial Court. The appellant in both
MSA Nos.33/2022 and 34/2022 was the defendant in O.S.
No.50/2009 and the plaintiff in O.S.No.58/2009. In order
to avoid confusion, the appellant in both the appeals shall
henceforth be referred to by her name "Rathnamma". The
respondents in MSA Nos.33/2022 and 34/2022 were the
plaintiffs in O.S.No.50/2009 and the defendants in
O.S.No.58/2009 and shall henceforth be referred to as
"Kempamma and others" for the sake of clarity and easy
understanding.
5. The suit in O.S.No.50/2009 was filed for a
declaration by the predecessor of Kempamma and others,
that he was the absolute owner of the suit property and
for consequential reliefs. He claimed that the suit
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properties were purchased by him in the year 1975 from
Smt. Chikkabyramma while another property was
purchased in terms of the sale deed dated 25.02.1965. He
claimed that after the purchase, the khatha of the
property was transferred to his name and that he was in
possession of the same. He claimed that he had two wives
namely, Smt. Kempamma and Smt. Rudramma.
Kempamma had two daughters and Rudramma had six
daughters and a son. He claimed that the defendant
(Smt. Rathanamma) went near the property on
01.03.1999 and claimed that she had purchased the
property from the predecessor of Kempamma and others
under two sale deeds dated 16.12.1998. He alleged that
on coming to know about the sale deeds, he approached
the office of the Sub-Registrar and obtained certified
copies and claimed that the thumb mark stated to be his,
on the sale deeds were created and forged. He claimed
that he had never sold suit properties to Smt. Rathnamma
and that he had never received consideration from her and
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therefore, claimed that the sale deeds set up by Smt.
Rathnamma were all forged and fabricated to knock of the
property. Smt. Rathnamma who filed O.S.No.58/2009
contended that she purchased the suit properties from the
predecessor of Smt. Kempamma and others, in terms of
the two sale deeds dated 16.12.1998. Based on these
contentions, the Trial Court framed issues and set down
the case for trial. The suit in O.S.No.50/2009 was treated
as the main suit. The predecessor of Kempamma and
others examined as P.W.1 to P.W.5 and marked Exs.P.1 to
P.32. Smt. Rathnamma was examined as D.W.1 and
marked Ex.D.1 to D.23. The Trial Court found that the
certified copies of the sale deeds propounded by Smt.
Kempamma dated 16.12.1998 were produced and not the
originals. It disbelieved her claim that the originals of the
sale deeds were misplaced/lost and hence, disbelieved her
claim that she had purchased the suit properties from the
predecessor of Smt.Kempamma and others.
Consequently, it dismissed the suit filed by the
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predecessor of Smt.Kempamma and others and also
dismissed the suit filed by Smt. Rathnamma. Challenging
the aforesaid judgment and decree Smt.Rathnamma filed
R.A.Nos.162/2015 and R.A.29/2016. During the pendency
of the appeals before the First Appellate Court, Smt.
Rathanamma filed an application and placed on record the
original sale deeds dated 16.12.1998. The First Appellate
Court after considering the fact that the suit documents
namely sale deeds were placed on record, held that it is
appropriate to remit the case back to the Trial Court for
reconsideration and also to provide an opportunity to Smt.
Kempamma and others to file a fresh pleading and
directed the Trial Court to denovo try the suit. Being
aggrieved by the same, both of them have filed separate
appeals challenging the order of the Trial Court.
6. Learned counsel for Smt. Rathnamma
submitted that the certified copies of the documents were
produced and the impugned registers relating to the sale
deeds dated 16.12.1998 were summoned from the office
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of the Sub-Registrar. Therefore, mere production of the
original sale deeds did not change the merits of the case.
Therefore, the Appellate Court must have itself disposed
off the suits in accordance with law by considering the
evidence recorded by the Trial Court, based on the LTM
Register as well as the certified copies and the original sale
deeds of title of Smt.Rathnamma in respect of the suit
schedule properties. He, therefore, contends that the
order of the First Appellate Court deserves to be set aside.
7. Per contra, the learned counsel for Smt.
Kempamma and others submits that the Appellate Court
could not have ignored the evidence of Smt. Rathnamma
that these documents were lost and a complaint in that
regard was filed before the jurisdictional Police. He
contends that the Court must have condoned the non-
production of original deeds of title before the Trial Court.
He submitted that the Appellate Court should not have
mechanically allowed the application filed by
Smt.Rathnamma and others under Order XLI Rule 27 of
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CPC. Since Smt. Rathnamma was always in possession of
the original documents of title, but chose not to produce
them during the course of the proceedings before the Trial
Court. He therefore, contended that the Appellate court
committed an error in remitting the case back to the Trial
Court.
8. I have considered the submissions of learned
counsel for Smt.Rathnamma and the learned counsel for
Smt. Kempamma and others. I have also perused the
judgment of the Trial Court as well the First Appellate
Court as well as the records of the Trial Court.
9. The Trial Court dismissed the suit filed by
Smt. Rathnamma and decreed the suit filed by
Smt. Kempamma and others, on the sole ground that
Smt. Rathnamma did admit the antecedent title of
predecessor of Smt. Kempamma and others. The Trial
Court held that Smt. Rathnamma did not produce the
original documents of title, but had produced the certified
copy of the sale deeds. The Trial Court also held that the
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complaint lodged by Smt. Rathnamma about the loss of
the original sale deeds was not convincing, as her oral
evidence was not in line with Ex.D3. The Trial Court
therefore decreed the suit filed by Smt. Kempamma and
others, dismissed the suit filed by Smt.Rathnamma.
10. Being aggrieved by the said decree Smt.
Rathnamma filed two appeals before the First Appellate
Court in R.A.Nos.162/2015 and 29/2016.
11. During the pendency of the appeal, Smt.
Rathnamma filed an application under Order XLI Rule 27
read with Section 151 of Civil Procedure Code and
produced the original documents and sale deeds dated
16.12.1998. The Appellate Court must have considered
the application in the light of the provisions contained in
Order XLI Rule 27 of Civil Procedure Code itself and must
have considered the question whether Smt. Rathnamma
was prevented by sufficient cause in not producing the
documents at the earliest point in time before the Trial
Court.
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12. For the sake of easy understanding Order XLI
Rule 27 of Civil Procedure Code is extracted below:
"27. Production of additional evidence
in Appellate Court.-(1) The parties to an
appeal shall not be entitled to produce
additional evidence, whether oral or
documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was
not within his knowledge or could not, after the
exercise of due diligence, be produced by him
at the time when the decree appealed against
was passed, or]
(b) the Appellate Court requires any
document to be produced or any witness to be
examined to enable it to pronounce judgment,
or for any other substantial cause,
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the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed
to be produced by an Appellate Court, the
Court shall record the reason for its admission."
13. It is evident from Ex.D3 that Smt. Rathnamma
had complained about the loss of the document to the
jurisdictional police. No doubt, it was stated in Ex.D3 that
the documents were lost by her husband, but in her chief-
examination, she claimed that those documents were lost
by her, when she was traveling in a bus. There is some
attempt by Smt.Rathnamma to establish the reason for
not producing the original documents of title, before the
Trial Court. She led secondary evidence by filing certified
copies of the documents of title. The Trial Court records
disclose that the LTM register of the concerned sale deeds
were summoned by the Trial Court from the concerned
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Sub-Registrar and Smt.Rathnamma was also cross-
examined on the entries found in the LTM register.
14. The Trial Court must have considered the said
documents for the purpose of deciding the rights of the
parties. However, the Trial Court has microscopically
examined the reasons assigned in Ex.D3 and the variance
in the examination-in-chief of Smt.Rathnamma and held
that the loss of documents cannot be believed. In a suit
for declaration of title based on documents of title, the
Courts could not have considered the material placed
before it lightly, more particularly, when secondary
evidence was available before the Trial Court to establish
the title of Smt.Rathnamma. The First Appellate Court was
therefore justified in holding that the reasons assigned for
not producing the document before the Trial Court was
just and proper. However, when once the documents were
produced before the First Appellate Court, by filing an
application under Order XLI Rule 27 CPC, the Appellate
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Court must have complied with the requirement as set out
in Order XLI Rule 28 of the Code of Civil Procedure, 1908.
15. For the sake of convenience, Order XLI Rule 28
of Civil Procedure is extracted below:
"28. Mode of taking additional
evidence.- Wherever additional evidence is
allowed to be produced, the Appellate Court may
either take such evidence, or direct the Court
from whose decree the appeal is preferred, or
any other subordinate Court, to take such
evidence and to send it when taken to the
Appellate Court."
16. The First Appellate Court must have been
mindful of the fact that the Trial Court had spent
enormous time in recording the evidence of the parties
and had rendered a reasoned judgment. The Appellate
Court when confronted with fresh evidence, must have
itself taken such further evidence or could have directed
the Trial Court to take such evidence and send its record
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and report for disposal of the appeal on merits. The
Appellate Court must have refrained in setting aside the
judgment of Trial Court and remitting the case to the Trial
Court for a de novo trial and also permitting the parties to
amend their pleadings. The intention and purport of the
Order XLI Rule 27 of Code of Civil Procedure is to avoid
unnecessary remands.
17. The way in which the Appellate Court has to
conduct itself while considering an application under Order
XLI Rule 27 of Code of Civil Procedure, is well considered
by a Co-ordinate bench of this Court in the case of
Shanthaveerappa Vs. K.N.Janardhanachari - 2007(6)
Kar.L.J. 531 where it was held that the First Appellate
Court should not remit the case, unless the suit is
disposed of on preliminary issue or when necessary parties
are not impleaded in the suit. When there is ample
evidence on record to determine the issues framed, the
Appellate Court should refrain from remitting the case
back to the Trial Court. Applying the aforesaid test, this
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Court is of the opinion that the remand of the case to the
Trial Court was unnecessary. On the contrary, the
Appellate Court must have itself marked the documents of
title namely, the sale deeds dated 16.12.1998 and must
have considered the evidence available on record and
dispose off the appeals in accordance with law.
18. In that view of the matter, appeal filed by Smt.
Rathnamma in MSA Nos.33/2022 and 34/2022 are
allowed and the impugned judgment and decree passed
by the Appellate Court remitting the case back to the Trial
Court is set aside and the appeals before First Appellate
Court are restored on its file and the Appellate Court is
directed to mark the document namely two sale deeds
dated 16.12.1998 produced by Smt. Rathnamma and
dispose off the appeals in accordance with law.
19. In view of the above, the appeals filed by
Smt. Kempamma and others in MSA No.7/2021 and
26/2021 would not survive for consideration and they are
dismissed. The Appellate Court shall dispose off the
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appeals as expeditiously as possible, at any rate, within six
months from the date of certified copy of this order.
Sd/-
JUDGE
PSJ/HJ
