Karnataka High Court

Prabhuling S/O Mallikarjunappa ... vs Shivaputra S/O Basappa Kabbur on 5 January, 2023

Bench: M.G.S. Kamal

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                                      MSA No.100075 of 2019
                                  C/W MSA No.100076 of 2019
                                      MSA No.100077 of 2019


        IN THE HIGH COURT OF KARNATAKA,
                 DHARWAD BENCH

    DATED THIS THE 5TH DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR JUSTICE M.G.S. KAMAL

           M.S.A.NO.100075 OF 2019 (RO)
                       C/W
             M.S.A.NO.100076 OF 2019
             M.S.A.NO.100077 OF 2019

IN M.S.A.NO.100075 OF 2019

BETWEEN:

    PRABHULING
    S/O MALLIKARJUNAPPA BENNUR,
    AGED 40 YEARS,
    OCC: ADVOCATE AND AGRICULTURE,
    R/O MARKET ROAD, BANAVASI-581318
    TQ: SIRSI, DIST: UTTARA KANNADA.
                                                ...APPELLANT
(BY SRI P.G.MOGALI, ADV.)

AND:

    SHIVAPUTRA
    S/O BASAPPA KABBUR
    AGED 61 YEARS, OCC: AGRICULTURE
    R/O MARKET ROAD, BANAVASI 581318
    TQ: SIRSI, DIST: UTTARA KANNADA.
                                              ...RESPONDENT
(BY SRI A.P.HEGDE JANMANE &
SRI VIJAY MALALI, ADVTS.)
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                                      MSA No.100075 of 2019
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                                      MSA No.100077 of 2019


       THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER 43 RULE 1 (U) OF THE CODE OF CIVIL PROCEDURE
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE UNDER
APPEAL AT R.A.NO.22/2015 ON THE FILE OF SENIOR CIVIL
JDUGE AT SIRSI AND APPEAL IN R.A.NO.22/2015 BE ORDERED
TO BE HEARD AND DECIDED ON MERITS.


IN M.S.A.NO.100076 OF 2019

BETWEEN:
    PRABHULING
    S/O MALLIKARJUNAPPA BENNUR
    AGED 40 YERS,
    OCC. ADVOCATE AND AGRICULTURE,
    R/O MARKET ROAD, BANAVASI-581318
    TQ. SIRSI, DIST. UTTARA KANNADA.
                                                ...APPELLANT
(BY SRI P.G.MOGALI, ADV.)

AND:
    SHIVAPUTRA
    S/O BASAPPA KABBUR
    AGED 61 YEARS, OCC: AGRICULTURE,
    R/O MARKET ROAD, BANAVASI-581318,
    TQ. SIRSI, DIST. UTTARA KANNADA.
                                              ...RESPONDENT
(NOTICE TO RESPONDENT IS SERVED.)
       THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION 43 RULE 1(U) OF CPC, PRAYING THIS COURT TO SET
ASDIE THE JUDGMENT AND DECREE UNDER APPEAL AT
R.A.NO.23/2015 ON THE FILE OF SENIOR CIVIL JUDGE AT
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                                      MSA No.100075 of 2019
                                  C/W MSA No.100076 of 2019
                                      MSA No.100077 of 2019


SIRSI, AND APPEAL IN R.A.NO.23/2015 BE ORDERED TO BE
HEARD AND DECIDED ON MERITS.


IN M.S.A.NO.100077 OF 2019
BETWEEN:
    PRABHULING
    S/O MALLIKARJUNAPPA BENNUR
    AGED 42 YERS
    OCC. ADVOCATE AND AGRICULTURE
    R/O MARKET ROAD, BANAVASI-581318
    TQ. SIRSI, DIST. UTTARA KANNADA
                                                ...APPELLANT
(BY SRI P G MOGALI, ADV.)

AND:
    SHIVAPUTRA S/O BASAPPA KABBUR
    AGED 61 YEARS, OCC.AGRICULTURE,
    R/O MARKET ROAD, BANAVASI-581318
    TQ. SIRSI, DIST. UTTARA KANNADA.
                                              ...RESPONDENT
       THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
SECTION 43 RULE 1(U) OF CPC, PRAYING THIS COURT TO SET
ASDIE THE JUDGMENT AND DECREE DATED 30.11.2018 UNDER
APPEAL     IN   UNNUMBERED         CROSS    OBJECTION    IN
R.A.NO.23/2015 ON THE FILE OF SENIOR CIVIL JUDGE AT
SIRSI AND SUCH OTHER RELIEFS.


       THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                            MSA No.100077 of 2019



                           JUDGMENT

1. These Miscellaneous Second Appeals are filed

by the appellants herein, who is the plaintiff in

O.S.No.147/2009 and also the defendant in

O.S.no.162/2012 aggrieved by the judgment and order

dated 30.11.2018 passed in R.A.No.22/2018,

R.A.No.23/2015 and in unnumbered cross appeal filed in

R.A.No.23/2015 by the Senior Civil Judge, Sirsi at Sirsi

(hereinafter referred to as "the First Appellate Court" for

short) in and by which the First Appellate Court while

setting aside the judgment and decree passed in

O.S.No.147/2009 and O.S.No.162/2012 by the Principal

Civil Judge, Sirsi (hereinafter referred to as "the Trial

Court" for short) and allowed the cross appeal filed in

R.A.No.23/2009 and remanded the matter for fresh

disposal.

2. Since these three appeals arise out of a

common judgment and order passed by the First Appellate

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Court, all is taken up for common consideration and

disposal.

3. Suit in O.S.No.147/2009 is filed by the

appellant herein (hereinafter referred to as "plaintiff" for

the sake of convenience) seeking relief of declaration to

declare him to be the adopted son of one Smt.Gadigemma

and for permanent injunction. While suit in

O.S.No.162/2012 has been filed by respondent herein

(hereinafter referred to as "defendant" for the sake of

convenience) seeking relief of declaration of his ownership

based on a Will dated 13.05.1967 claimed to have been

executed by one Chandrappa Shivalingappa Banavasi and

for consequential relief of permanent injunction.

4. Subject matter of the suit is the land bearing

Sy.No.280A measuring 15 guntas situated in Banavasi

village of Sirsi Taluk (hereinafter referred to as "the suit

property" for short). It is the case of the plaintiff that, he

is the adoptive son of one Smt.Gadigemma and after her

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demise, the suit property was succeeded by him and he is

in possession and enjoyment of the same without any

interference or obstruction from anyone else. That the

defendant being the stranger to the family of the plaintiff

having no concern, on 21.05.2009 along with his

henchmen attempted to encroach upon portion of the suit

property and put up a construction over the same

constraining the plaintiff to file the above suit seeking the

relief as above.

5. Defendant in his written statement denying the

plaint averment, contended that, the suit property

originally belong to one Sri Chandrappa Shivalingappa,

Banavasi who had no issues and he had executed a Will

dated 13.05.1967 and registered it on 16.05.1967

bequeathing the suit property in favour of the defendant.

That the said Chandrappa Shivalingappa died in the year

1975 and upon his demise by virtue of the aforesaid Will

name of the defendant was mutated in the revenue

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records. Thus except the defendant no one else has any

right over the suit property. It is further claimed that the

plaintiff taking advantage of his profession had played

mischief and obtained cancellation of mutation entries

before the Assistant Commissioner. Being aggrieved by

the same, the defendant preferred a Revision Petition

before the Deputy Commissioner. In view of the pendency

of the litigation, parties were relegated to have their rights

and entitlement adjudicated by a competent Court of law.

6. The defendant also filed a suit in

O.S.No.162/2012 claiming relief of declaration of his title

over the suit property on the basis of the Will executed by

said Chandrappa Shivalingappa as similar as contained in

the written statement filed in O.S.No.147/2009.

7. The Trial Court based on the pleadings of the

parties, framed the following issues in O.S.No.147/2009.

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1. Whether the plaintiff proves that he has succeeded the suit property from his mother?

2. Whether the plaintiff further proves that during pendency of the suit defendant has constructed the wall encroaching the suit property?

3. Whether the plaintiff is entitled for mesne-

profits as claimed in the plaint?

4. Whether defendant proves that, Sri Chandrappa s/o. Shivalingappa was absolute owner of the suit property?

5. Whether the defendant proves that, Chandrappa bequeathed the suit property in his favour by executing Will dated 13.05.1967?

6. What order or decree?

8. In O.S.No.162/2012, the Trial Court framed the

following issues.

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1. Whether the plaintiff proves that deceased Chandrappa Shivalingappa was the absolute owner in possession of the suit property?

2. Whether the plaintiff proves that the deceased Chandrappa Shivalingappa bequeath the suit property in his favour by executing the registered will dated 13.05.1967 so the plaintiff as acquired title of suit property?

3. Whether the plaintiff is in possession of suit property as on the date of suit?

4. Is there any interference by the defendant?

5. Whether the suit is barred by limitation.

6. Whether the suit is properly valued and Court fee paid is sufficient?

7. What order or decree?

9. Plaintiff in O.S.No.147/2009 who is the

appellant before this Court examined himself as PW.1 and

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exhibited as many as 51 documents marked Exs.P.1 to

P51. Defendant who is also plaintiff in O.S.No.162/2012

examined himself as DW.1 and exhibited 8 documents

marked as Exs.D.1 to D.8.

10. The Trial Court on common consideration and

appreciation of evidence of the parties dismissed the suit

of the plaintiff in O.S.No.147/2009 holding that he failed

to prove adoption. As regards suit in O.S.No.162/2012 the

Trial Court while declining to accept the validity of the Will

executed by Sri Chandrappa Shivalingappa in favour of

defendant, considering the evidence of his possession over

the suit property granted relief of permanent injunction,

thus partly allowed the said suit.

11. Being aggrieved by the aforesaid common

judgment and decree, the plaintiff herein filed regular

appeal in R.A.No.22/2015 as against dismissal of suit in

O.S.No.147/2009 and also filed R.A.No.23/2015 as against

granting of permanent injunction suit in O.S.No.162/2012.

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Defendant being aggrieved by the rejection of his

contention regarding Will filed unnumbered cross-appeal in

R.A.No.23/2015.

12. The First Appellate Court on consideration of

the grounds urged by the plaintiff has taken the aforesaid

regular appeals in R.A.No.22/2015, R.A.No.23/2015 and

as well as the cross appeal for common disposal and

framed the following points for consideration.

1. Whether the lower court framed proper issues based on the plaindings for respective parties?

2. Whether the trial Court has erred in appreciating the evidence on record in a proper perspective and dismissed the suit in O.S.No.147/2009 and partly decreed the suit in O.S.No.162/2012?

3. Whether the judgment and decree passed by the lower Court call for interference by this Court?

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13. While answering point No.1 in the negative and

point No.3 in the affirmative, held point No.2 to be not

requiring any consideration.

14. The First Appellate Court found that the issues

framed by the Trial Court were not in consonance with the

pleadings and the relief sought by the parties. It also

found that the issue so framed by the Trial Court did not

throw any light upon the pleadings of the parties. The First

Appellate Court has further found that upon the issues

framed by the Trial Court, the parties could not be

expected to discharge their burden of proof. Having held

that the First Appellate Court framed/recasted following

fresh issues in respect of O.S.No.147/2009.

1. Whether the plaintiff proves that the defendant had put up construction of the wall adjacent to DI wall as shown in the rough sketch and obstructed free flow of air and light to PQR windows which are situated

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in DI wall as pleaded in para 6, 8, and 8(a) of the plaint?

2. Whether the plaintiff proves that after institution of the suit defendant has constructed the cow shed and toilet in violation of the Court order as alleged by the plaintiff in para 8 and 8c of the plaint?

3. Whether the plaintiff further proves that, he is the absolute owner of the suit property and entitled to recover the portion of the property which is said to be encroached and put up a structure, by the defendant during the pendency of the suit?

4. Whether plaintiff is entitled for mesne profit as claimed in the plaint?

5. Whether the defendant proves that he acquired the property under a reg. Will dated 13.05.1967 through Chandrappa son of Shivalingappa?

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15. Similarly framed/recasted fresh issues in

respect of suit in O.S.No.162/2012.

1. Whether the plaintiff proves that the order of the AC Sirsi suffers with legal lacuna and not in accordance to law?

2. Whether the plaintiff proves he is the absolute owner of suit property having acquired the same by virtue of Will dated

13..5.1967?

3. Whether the plaintiff is entitled for permanent injunction in respect of suit property?

4. Whether the suit is barred by limitation?

5. Whether the defendant proves Gadigemma adopted this defendant in the year 1982 after the death of her husband and thereby the became the family member of Shivappa?

6. Whether defendant further proves since sannama had no issues out of wedlock and so also Mallappa, property belonged to the

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Rachappa succeed by the branch of Shivappa and thereby he being the adopted grand son of Shivappa became the absolute owner of suit property by virtue of sucession?

7. Whether the suit is properly valued and court fee paid is sufficient?

8. What order or decree?

16. Consequently allowed the appeals, setting aside

the judgment and decree passed in aforesaid two suits

and directed the Trial Court to dispose of the suit afresh as

per the observations made in the judgment on the fresh

framed by it. It is this order which is challenged by the

plaintiff before this Court.

17. Sri.P.G.Mogali, learned counsel for the plaintiff

(appellant herein) reiterating the grounds urged in the

memorandum of appeal submitted that the First Appellate

Court grossly erred in passing the impugned order by

recasting the issues and directing the Trial Court to decide

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the case afresh which is contrary to the provisions of

Order LXI Rule 25 of CPC. He submits that even if the First

Appellate Court had found that the issues framed by the

Trial Court were inadequate it ought to have disposed of

the matter on the fresh issues so framed by it without

remanding the matter to the Trial Court as the First

Appellate Court is the final fact finding Court having all

jurisdiction and authority to adjudicate upon the

contentious issues.

18. It is further submitted that even otherwise the

remand was of no use as the parties, atleast the plaintiff,

was not required to lead any evidence as whatever

evidence required to be lead was already placed before

the Trial Court. Since the parties had adequately adduced

the evidence and also subjected themselves to cross

examination, there was nothing required to be adduced

further. Therefore he submits that, the First Appellate

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Court ought to have adjudicated the matter by itself

instead of remanding the matter for fresh disposal.

19. In justification of the submissions, the learned

counsel for the plaintiff relied upon the following

judgments of this Court:

1. Munivenkatappa Vs.Venkateshappa, ILR 1991 Kar 3255

2. Kallappa Vs. Smt.Mallamma and Others, 2015(4) KCCR 3432

3. Smt.Chennamma and Others Vs. Sheenappa Gowda, 2016(4) KCCR 3284

20. Relying upon the aforesaid judgments, the

learned counsel for the plaintiff submits that the order

passed by the First Appellate Court requires to be set

aside

21. Sri.A.P.Hegde Janmane, learned counsel

appearing for the defendant agreeing with the submissions

of learned counsel for the plaintiff fairly submits that

instead of remanding the matter for fresh consideration,

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the First Appellate Court could have exercised its

jurisdiction by adjudicating itself upon the issues so

framed by it, which would have saved the time and

resulted in disposal of matters.

22. Heard both the parties. Perused the records.

23. This Court while dealing with the power of

remand by the First Appellate Court in Munivenkatappa

Vs.Venkateshappa, ILR 1991 Kar 3255 at paragraphs

3, 5 and 6 has held as under:

"3. The learned Civil Judge remanded the matter to the trial Court solely on the ground that the trial Court had not framed an issue on a specific plea raised by the respondent herein in his pleading to the effect that occupancy right had been granted to his father in respect of the suit schedule property and that was confirmed by the Special Deputy Commissioner for Inam Abolition and that he inherited the property as absolute owner and in possession of the same. The Civil Judge, therefore, framed the following issue:

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"Whether the 6th defendant proves that the occupancy right of his father in respect of the suit schedule property has been confirmed by the Special Deputy Commissioner for Inam Abolition and thereafter he inherited the property as absolute owner in possession?"

He then remitted the suit as aforesaid.

4.xxx

5. While exercising power under Rule 25 Order 41 C.P.C., the Appellate Court need not remit the entire matter to the Court if the Appellate Court is of the opinion that a particular issue should have been framed and tried or that certain findings of fact are necessary for disposal of the appeal and that further evidence should be recorded on that issue.

The proper procedure is to take steps as provided under Rule 25 Order XLI CPC and not to remand the entire matter.

6. The contention of the learned Counsel for the respondent is that the learned Civil Judge directed the trial Court to decide the issue framed by him and not the entire suit. But the order of the Civil Judge is quite clear that the matter was

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remitted back to the trial Court for fresh disposal in accordance with law after setting aside the Judgment and decree passed by the trial Court.

Nowhere he has stated that the trial Court is required to send the findings recorded on the additional issue framed by him."

24. Similarly in Kallappa Vs. Smt.Mallamma and

Others, 2015(4) KCCR 3432, the Coordinate Bench of

this Court at paragraphs 11, 12, and 13 has held as

under:

"11.When the First Appellate Court has come to the conclusion that certain persons have to be added as necessary parties for effectively deciding the matter in controversy and when there are some more properties to be included, nothing came in the way of the First Appellate Court either to direct the parties to rectify those mistakes by directing necessary parties to come on record and by including all the properties or remanding the matter to the trial Court to add necessary parties and to do all efforts necessary for effectively deciding the matter. Having not done so, the Judgment of the First Appellate Court is not sustainable.

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12. Even otherwise, the First Appellate Court has all the trappings of the trial Court dealing with the original suit. The matter is of the year 2004 and it is not prudent to remand the matter to the trial Court. On the other hand, it would be better if the matter is remanded to the First Appellate Court, who has all the trappings of the Civil Court dealing with the suit, more particularly, being presided over by a relatively the experienced Judge.

13. Hence, the First Appellate Court has committed a serious error in remanding the matter after having held that all the joint family properties have not been included in the suit. Hence, substantial question of the law is answered in the affirmative. Hence, matter is to be remanded to the First Appellate Court."

25. In Smt.Chennamma and Others Vs.

Sheenappa Gowda, 2016(4) KCCR 3284, the

Coordinate Bench of this Court had held at paragraphs 9

and 12 as under:

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"9. It is trite that the Appellate Court's power of remand ought not to be exercised lightly when there is sufficient evidence to decide the case.

Lower Appellate Court appears to have passed the impugned Judgment by keeping in view the provision under Order XLI, Rule 23 or 23A of CPC, which have no application to the case, as the suit was not decided on any preliminary issue. It is obvious that the lower Appellate Court has not kept in view the provisions as per S.107 and Order XLI Rules 24 and 25 of CPC. Plaintiff being aggrieved by non grant of relief in respect of 'C' schedule properties has filed R.A.No.28/2010 and the defendants being aggrieved by the decree passed by the Trial Court have filed R.A.No.29/2010. Neither of the parties having stated that sufficient evidence is not available to decide the appeal and lower Appellate Court also having not found any dearth of evidence to decide the appeals has passed the impugned Judgment, without keeping in view Rules 24 to 31 of Order XLI CPC. It ought to have considered whatever evidence was on record for the purpose of deciding the appeals and either confirm or modify or reverse the Judgment and Decree of the Trial Court i.e., after re-appreciation of the evidence. The course which has been adopted by

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the Court below is wholly erroneous and contrary to the well settled principles of law. It is not a healthy practice to remand the case to the Trial Court, unless it is absolutely necessary to do so, as the remand makes the parties to again wait for the final decision of the case for further period and there might be an appeal again by one of the parties.

12. The remand of the case leads to delay and causes prejudice to the parties to the lis, as an unwarranted order of demand gives the litigation an undeserved lease of life and therefore must be avoided. When the evidence is available, the Court should decide the appeal one way or the other. If necessary issue has not been raised, issues can be re-casted or additional issue raised and the appeal should be decided. The lower Appellate Court being headed by the Senior and experienced Judicial Officers should keep in view the powers of Appellate Court under S.107 of CPC and the guidelines provided as per Order XLI, Rules 24 to 31 of CPC and decide the appeal(s)."

26. Order XLI Rule 24 of CPC provides as under:

"24. Where evidence on record sufficient, Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to

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enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."

27. As seen in the impugned order the only reason

is that the Trial Court had not framed proper issues. It is

not that case of insufficiency of evidence on record. Thus,

from the factual aspects of the matter and the settled

position of law, pertaining to power of remand, the First

Appellate Court in the considered view of this Court ought

to have adjudicated the matter by itself without

remanding the matter for fresh disposal, when there was

no need or necessity for the same.

28. Accordingly, these appeals are allowed. The

matter is remitted to the First appellate Court for final

determination.