Karnataka High Court
Smt. Veeramma vs Sri Eshwaraiah on 5 October, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:36106
RSA No. 1562 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1562 OF 2021 (INJ)
BETWEEN:
SMT. VEERAMMA
SINCE DEAD BY LEGAL
REPRESENTATIVE
1. SMT. SIDDAMMA
D/O UDDANAIAH
W/O RUDRESHAIAH
AGED ABOUT 55 YEARS
R/A AMBALAGERE
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT-561204
...APPELLANT
(BY SRI AKASH V.T., ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH SRI ESHWARAIAH
COURT OF SINCE DEAD BY LEGAL REPRESENTATIVES
KARNATAKA
1. SMT. SIDDAMMA
W/O LATE ESHWARAIAH
AGED ABOUT 75 YEARS
2. SARVAMANGALAMMA
D/O LATE ESHWARAIAH
AGED ABOUT 50 YEARS
3. SMT. SAROJAMMA
D/O LAE ESHWARAIAH
AGED ABOUT 45 YEARS
-2-
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RSA No. 1562 of 2021
RESPONDENTS NO.1 TO 3 ARE
RESIDING AT BANASHANKARI
KUNIGAL ROAD, TUMKUR-572103
ALSO AT AMBALAGERE
DODDABELAVANGALA HOBLI
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT-561004
...RESPONDENTS
(BY SRI SHANKARLINGAPPA NAGARAJ, ADVOCATE FOR
R1, C/R2 AND R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.03.2020
PASSED IN R.A.NO.10134/2016 (OLD NO.38/2015) ON THE
FILE OF THE IV ADDL. DISTRICT AND SESSIONS JDUGE,
DODDABALLAPURA.DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.06.2015 PASSED IN O.S.NO.403/2006 ON THE FILE OF
THE PR. CIVIL JDUGE AND JMFC, DODDABALLAPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. I have heard the
learned counsel for the appellant and also the counsel for the
Caveator-respondent Nos.1 to 3.
2. The appellant herein has filed the suit in
O.S.No.406/2006 seeking the relief of permanent injunction
contending that property was purchased in the year 1956 by
the husband of the plaintiff and property is in lawful possession
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and enjoyment of the suit schedule property as on the date of
the suit and also it is the contention that defendants are
interfering with the possession of the plaintiff.
3. The defendant appeared and filed written statement
denying the contention of the plaintiff contending that at no
point of time plaintiff is in possession of the suit schedule
property. The original owner of Sy.No.96 totally measuring 5
acres 30 guntas of Ambalagere Village was one late
Channappa. The said Channappa has already alienated the said
property in favour of defendant's father Gangappa under
registered sale deed dated 20.05.1941. Ever since the date of
purchase, the defendant's father was the absolute owner and
possession of Sy.No.96 measuring 5.30 acres. After the death
of father of defendant, the defendant is the absolute owner and
in possession of the suit schedule property. The Trial Court
having considered the material on record comes to the
conclusion that plaintiff has not established his possession and
dismissed the suit.
4. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed in R.A.No.10134/2016
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contending that Trial Court has committed an error in not
relying upon the document particularly as on the date of filing
of the suit, RTC extracts are standing in the name of the
plaintiff/appellant and no document has been placed by the
defendants to show that they are in possession of the suit
property as on the date of filing of the suit. The
plaintiff/Appellant also filed applications in I.A.Nos. VII and VIII
under Order 41, Rule 27 of C.P.C. contending that total extent
of 5 acres and 20 guntas of property was sold in favour of
defendant's father in the year 1941 and also suit was filed by
the original owner against the father of the defendants in
O.S.No.397/1940 and the same was compromised on
29.5.1942, wherein a compromise was entered and he has
categorically admitted that he is not having any right in respect
of the suit schedule property and the property was sold in
favour of the husband of the plaintiff in the year 1956 and also
sought for permission to produce additional documents.
5. Learned counsel appearing for the appellant-plaintiff
would vehemently contend that when applications are filed
under Order 41, Rule 27 of C.P.C., the same was not
considered and the First Appellate Court, while passing the
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judgment, made a note before considering points for
consideration that applications are filed but, no prayer was
made in those applications seeking leave to adduce additional
evidence. Therefore, no point for consideration is formulated
regarding those applications or requirement of additional
evidence and the very approach of the First Appellate Court is
erroneous. When the applications are filed, even though there
is no prayer seeking leave to adduce additional evidence and
permission is sought to produce documents before the First
Appellate Court, the First Appellate Court ought to have
formulated the point whether the appellant-plaintiff has made
out ground to allow the applications to produce additional
documents, since those documents are necessary and the same
is pleaded in the applications that those documents are
necessary to consider the matter on merits. Hence, the very
approach of the First Appellate Court is erroneous.
6. Per contra, learned counsel for the Caveator-
respondent Nos.1 to 3 would vehemently contend that the First
Appellate Court while considering the points for consideration
i.e., point Nos.1 and 2, before assigning reasons, made it clear
that no permission is sought to adduce additional evidence and
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unless permission is sought to adduce additional evidence, the
question of considering whether those documents are
necessary or not does not arise. Learned counsel also would
contend that the documents relied upon by the appellant is
nothing but compromise decree and the compromise is very
clear with regard to obtaining the sale deed and the very First
Appellate Court considered all these material on record and
passed the judgment and concurred with the finding of the Trial
Court. Hence, it does not require any interference of this
Court.
7. Having heard the learned counsel for the appellant
and learned counsel for the Caveator-respondent Nos.1 to 3, no
dispute with regard to the fact that entire property measuring 5
acres, 30 guntas was sold in favour of the vendor of the
plaintiff and the appellant also not disputed the fact that earlier
there was a sale deed in favour of the father of the defendant
in the year 1941 and also sought for production of certified
copies of the same in O.S.No.397/1940 before the First
Appellate Court and the First Appellate Court, while considering
the applications, instead of formulating the point whether those
documents are necessary or not, comes to the conclusion that
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no prayer is made in those applications seeking leave to adduce
additional evidence. Hence, the question of considering the
applications does not arise and the very approach of the First
Appellate Court is erroneous and when the applications are filed
to produce additional documents, the First Appellate Court
ought to have considered whether those documents are
necessary to decide the issue involved between the parties and
whether it helps to consider the germane issues involved
between the plaintiff and the defendants.
8. It is also important to note that suit is filed for the
relief of bare injunction and not for declaration and only in
order to establish the fact that there was compromise in the
earlier suit between the original vendor and the father of the
defendant, applications are filed to produce such documents.
When such being the case, the First Appellate Court ought to
have formulated the point and instead, made an observation
that no prayer was made in those applications seeking leave to
adduce additional evidence that the documents sought to be
produced are necessary to consider the matter on merits.
Whether the Court rejects or allows the applications and
whether prayer is sought to adduce additional evidence is
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immaterial, when permission is sought to adduce additional
evidence to substantiate their case and the very approach of
the First Appellate Court is erroneous and ought to have
considered the applications. Hence, the judgment and decree
of the First Appellate Court requires to be set aside and
direction has to be given to the First Appellate Court to decide
whether grounds are made out to allow the applications filed
under Order 41, Rule 27 of C.P.C. and the First Appellate Court
should not be too technical and reject the applications only on
the ground that there is no prayer to adduce additional
evidence and consider whether those documents are relevant
to consider the case. Therefore, the First Appellate Court is
directed to consider whether the appellant has made out any
ground to consider the applications and the material available
on record on merits and whether the Trial Court has committed
an error in dismissing the suit.
9. In view of the discussion made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree of the
First Appellate Court is set aside and the
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matter is remitted to the First Appellate Court
to reconsider the same afresh along with
applications filed under Order 41, Rule 27 of
C.P.C. as observed hereinabove.
(iii) The parties and their respective counsels are
directed to appear before the First Appellate
Court on 09.11.2023 without expecting any
notice from the First Appellate Court.
(iv) Even though the parties fail to appear before
the Court, there is no need to issue notice to
the parties which will cause delay in disposal
of the matter.
(v) The suit is of the year 2006 and almost 17
years have elapsed. Hence, the First
Appellate Court is directed to dispose of the
appeal along with the applications within
three months from the date of receipt of copy
of this judgment.
Sd/-
JUDGE
AP,ST
