Karnataka High Court
Ershetty S/O Shivabasappa vs Mohinuddin S/O Ameer Sab on 6 June, 2023
Bench: N.S.Sanjay Gowda
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RSA No. 7334 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 7334 OF 2009 (DEC/POS)
BETWEEN:
1. ERSHETTY S/O SHIVABASAPPA
AGE: 55 YEARS, OCC:AGRICULTURE,
R/O.VILLAGE RAJGIRA, BIDAR.
2. SMT.CHINNAMMA W/O.SHIVAPPA
AGE: 65 YEARS, OCC:HOUSEHOLD,
R/O.VILLAGE RAJGIRA, BIDAR.
3. SMT.SUBHADRAMMA W/O.SIDAPPA SHAHPURE
AGE: 48 YEARS, OCC:HOUSEHOLD,
R/O.VILLAGE RAJGIRA,
BIDAR.
Digitally signed
by RAMESH 4. SMT.KASTURIBAI W/O.SHANKERAPPA AGE:40
MATHAPATI
YEARS, OCC:HOUSEHOLD,
Location: HIGH
COURT OF R/O.VILLAGE RAJGIRA, BIDAR.
KARNATAKA
5. SMT. INDUMATHI W/O. SHARNAPPA
AGE: 37 YEARS,OCC:HOUSEHOLD,
R/O.VILLAGE RAJGIRA,
BIDAR(DEAD BY LRS SRI.SHARNAPPA)
...APPELLANTS
(BY SRI R S. SIDHAPURKAR, ADVOCATE)
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RSA No. 7334 of 2009
AND:
1. MOHINUDDIN S/O AMEER SAB
AGE: 50 YEARS, OCC:AGRICULTURE
R/O.VILLAGE RAJGIRA,
BIDAR (DIED)-585401
A) MANSOOR MIYAN S/O. MOHINUDDIN, AGE:45
YEARS, R/O.KAPPERGOAN,
BIDAR (SON)
B) MAQSOOD ALI S/O. MOHINUDDIN,
AGE: 35 YEARS, R/O.KAPPERGOAN,
BIDAR (SON)
C) MOTIMA W/O. MOHINUDDIN
AGE: 75 YEARS, R/O.KAPPERGOAN,
BIDAR (WIFE)
D) UJALA BEE W/O. MAHBOOB ALI
AGE: 55 YEARS, R/O.KHASIMPUR,
BIDAR (DAUGHTER)
E) SHAHED BEE W/O. INAYATH ALI
AGE: 40 YEARS, R/O.YAKHATPUR,
BIDAR (DAUGHTER)
F) NASIRA BEE W/O. FAQRUDDIN
AGE: 30 YEARS, R/O.KAPPERGOAN,
BIDAR-585401 (DAUGHTER)
...RESPONDENTS
(BY SRI MIR JAHANGIR ALI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 20.10.2009
PASSED IN R.A.NO.115/2006 ON THE FILE OF THE PRL.
DISTRICT JUDGE, BIDAR, ALLOWING THE APPEAL AND
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RSA No. 7334 of 2009
SETTING ASIDE THE JUDGEMENT AND DECREE DATED
30.8.2006 PASSED IN OS.NO.120/1995 ON THE FILE OF THE
PRL. CIVIL JUDGE (SR.DN.)BIDAR.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. A suit was instituted by the respondents/plaintiffs seeking
for a declaration that they were the owners of land bearing
Sy.No.134/E measuring 3 acres 8 guntas situate at Rajgira
Village, Bidar Taluk and District. A decree for recovery of
possession was also sought for.
2. The said suit was contested by the defendants/appellants
herein by filing a written statement. After trial, the Trial Court
dismissed the suit, as against which, a regular appeal was
preferred by the plaintiffs. During the pendency of the regular
appeal, it is not in dispute that the defendants/appellants
herein had also preferred a cross objection.
3. However, the Appellate Court, though noticed it in the
order dated 04.04.2008 about the filing of the cross objection,
has, nevertheless, proceeded to allow the appeal and has not
RSA No. 7334 of 2009
even considered the cross objection that had been preferred by
the appellants herein.
4. Being aggrieved by this judgment and decree of the
Appellate Court, the present second appeal has been preferred.
5. This second appeal was admitted to consider the following
questions of law:
"1. Whether the lower appellate court is
justified in reversing the judgment of the trail
court?
2. Whether the lower appellate court
committed an error of low in not disposing of the
cross appeal filed by the appellants herein along
with the main appeal?
3. Whether the finding of the trail court is the
result of wrong appreciation of evidence?"
6. It is to be stated here that if the second question of law is
answered in favour of the appellants, the remaining question of
law would not require any consideration.
7. As noticed above, during the pendency of the regular
appeal, a cross objection was in fact preferred by the appellants
RSA No. 7334 of 2009
herein on 06.02.2007 and this has been recorded in the order
dated 04.04.2008, which reads as follows:
" There has been no representation for appellants,
Appellants 1, 3, 4, 5 and 6 are called out, They are
absent, Their advocate
Also is not present. The perusal of the records goes
to show that this is a cross objection filled on
62/2007 u/o 41 rule 28 of CPC having been
aggrieved by the judgment/decree passed by the
Prl. Civil Judge (Sr.Dn) Bidar in OS.No. 120/1995 on
30/8/2006, it is clear that the respondents have filed
the appeal in RA. No. 115/2006 against the same
judgment/decree. However, the present appeal
without giving any number is being proceeded and
the case is posted for steps, as this appeal is
connected with RA. No. 115/2006. the proceedings
shall be taken up with RA.No.115/2006. The office is
directed to mention in margin the hearing date of
RA.No. 115/2006. However, on the next date of
hearing, appellant 1, 3, 4, 5 and 6 shall remain
present or their advocate shall remain present.
8. Despite this order, the Appellate Court, without reference
to the cross objection, has only decided the regular appeal and
has proceeded to allow the same. In my view, when the
respondents before the Appellate Court had filed cross
objections challenging the findings recorded against them, it
RSA No. 7334 of 2009
was incumbent upon the Appellate Court to consider the cross
objections and it was not permissible for the Appellate Court to
decide the appeal without reference to the cross objections. In
this view of the matter, the second substantial question of law
is answered in favour of the appellants herein.
9. As stated above, in view of this answer to the second
question of law, the other question may not require any
consideration. As a consequence, the impugned judgment and
decree of the Appellate Court is set aside and the matter is
remanded to the Appellate Court with a direction to consider
not only the appeal, but also the cross objection that was filed
by the appellants herein.
10. Having regard to the fact that the suit was of the year
1995, the Appellate Court is directed to dispose off the regular
appeal and the cross objection within a period of three months
from the date of receipt of a certified copy of this judgment.
11. It is needless to state that the Appellate Court will have
to consider the entire matter afresh on the basis of the material
available.
RSA No. 7334 of 2009
12. Since both the parties are represented before this Court,
they are directed to appear before the Appellate Court on
21.06.2023 without expecting any further notice from the
Appellate Court.
The second appeal is accordingly allowed.
Registry is directed to trasmit the trial court records to
the Appellate Court forthwith.
Sd/-
JUDGE
