Karnataka High Court
Sri Siddappa S/O Laxmibai Madigar Alias ... vs Smt. Tangewwa Nagappa Hosur Since ... on 3 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 101020 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH R
DATED THIS THE 03RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 101020 OF 2023 (PAR/POS)
BETWEEN:
SRI. SIDDAPPA
S/O. LAXMIBAI MADIGAR ALIAS DODAWAD,
SINCE DECEASED BY HIS LRS.
1. SMT. KUSHAWWA
W/O. SIDDAPPA MADIGAR ALIAS DODAWAD
AGE: 47 YEARS,
OCC: HOUSEHOLD WORK AND AGRICULTURE,
R/O: SANKONATTI - 591304,
TQ: ATHANI & DIST: BELAGAVI.
2. SRI. SHRIDHAR SIDDAPPA
MADIGAR ALIAS DODAWAD,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304,
TQ: ATHANI & DIST: BELAGAVI
3. SRI. RAMAPPA SIDDAPPA
Digitally signed MADIGAR ALIAS DODAWAD,
by SUJATA AGE: 31 YEARS, OCC: AGRICULTURE,
SUBHASH R/O: SANKONATTI - 591304
PAMMAR TQ: ATHANI AND DIST: BELAGAVI.
Location: HIGH
COURT OF 4. SRI. YALLAPPA SIDDAPPA
KARNATAKA MADIGAR ALIAS DODAWAD
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ: ATHANI & DIST: BELAGAVI
5. SRI. YAMANAPPA SIDDAPPA
MADIGAR ALIAS DODAWAD
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ: ATHANI & DIST: BELAGAVI
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RSA No. 101020 of 2023
6. SRI. SHASHIKUMAR SIDDAPPA
MADIGAR ALIAS DODAWAD,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304,
TQ: ATHANI & DIST: BELAGAVI,
7. SRI. PEERAPPA
S/O. LAXMIBAI MADIGAR ALIAS DODAWAD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304,
TQ: ATHANI & DIST: BELAGAVI,
8. SMT. MAHADEVI
D/O. LAXMIBAI MADIGAR ALIAS DODAWAD,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: SANKONATTI - 591304
TQ: ATHANI & DIST. BELAGAVI.
9. SRI. MAHAVEER S/O. LAXMIBAI
MADIGAR ALIAS DODAWAD,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ: ATHANI & DIST: BELAGAVI
10. SMT. SHEVANTA
W/O. RANAPPA PATTARAPPGOL
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: HOSUR - 587314,
TQ: MUDHOL AND DIST. BAGALKOT
...APPELLANTS
(BY SRI H.R.DESHPANDE, ADVOCATE)
AND:
SMT. TANGEWWA NAGAPPA HOSUR
SINCE DECEASED BY HIS LRS.
1. SMT. GOURAWWA
W/O. SAMBHAJI MADIGAR ALIAS JADHAV,
AGE: 57 YEARS,
OCC: AGRICULTURE AND HOUSEHOLD WORK,
R/O: NEAR SHIVALINGESHWAR MADDI,
A/P HALYAL-591304,
TQ: ATHANI AND DIST: BELAGAVI.
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RSA No. 101020 of 2023
2. SRI. KALLAPPA NAGAPPA HOSURE,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: MANTUR - 587121
TQ: MUDHOL AND DIST: BAGALKOT.
3. SRI. BASAPPA NAGAPPA HOSURE,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: MANTUR - 587121
TQ: MUDHOL AND DIST: BAGALKOT.
4. SMT. DUNDAWWA W/O. KADAPPA MADDIMANI,
AGE: 77 YEARS, OCC: HOUSEHOLD WORK ,
R/O: MANTUR - 587121,
TQ: MUDHOL AND DIST: BAGALKOT
5. SMT. SUVARNA W/O. PANDAPPA MADARKHANDI,
AGE: 73 YEARS, OCC: HOUSEHOLD WORK,
R/O: BELAGALI - 587113,
TQ: MUDHOL AND DIST: BAGALKOT.
6. SMT. PUSHPA W/O. SAHADEV KAMBLE,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: HOUSE NO.471, RAM MATA,
NEAR KALE PLOT, A/P. SANGLI-416416
MAHARASTRA.
7. SMT. GANGAWWA W/O. RANGAPPA GONYAGOL,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O. H.NO 565/1, NAGARAL - 587113
TQ: MUDHOL, DIST: BAGALKOT
8. SRI. SHRIKRISHNA NAGAPPA BAGATYAGOL
AGE: 55 YEARS,
OCC: GOVT. SERVICE SPECIAL OFFICER,
JOINT SECRETARY, FINANCE DEPARTMENT,
WORKING AT ROOM NO.249C, IIND FLOOR,
VIDHANA SOUDHA, BENGALURU-560001.
9. SMT. SHOBHA W/O. VITHAL METRI,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: SHIRAGAON -587119
TQ: AND DIST - BAGALKOT.
10. SMT. LAKKAVVA D/O. BHIMAPPA MADIGAR,
AGE: 59 YEARS, OCC. HOUSEHOLD WORK,
R/O: SANKONATTI - 591304.
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RSA No. 101020 of 2023
TQ. ATHANI AND DIST: BELAGAVI.
11. SRI. SAMBHAJI LAXMAN
MADIGAR ALIAS JADHAV,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304,
TQ. ATHANI AND DIST: BELAGAVI.
12. SRI. JITENDRA MAHADEV
MADIGAR ALIAS JADHAV,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ. ATHANI AND DIST. BELAGAVI
13. SRI. TANAJI LAXMAN
MADIGAR ALIAS JADHAV,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ: ATHANI AND DIST: BELAGAVI.
14. SMT. NEELAWWA
W/O. RAMU MADIGAR ALIAS JADHAV
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: SANKONATTI - 591304
TQ. ATHANI AND DIST. BELAGAVI
15. SRI. JAKKAPPA DHAREPA DHARIGOUDA,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI-591304
TQ: ATHANI AND DIST. BELAGAVI.
16. THE GOVERNMENT OF KARNATAKA
REPRESENTED BY THE
DEPUTY COMMISSIONER,
BELAGAVI - 590001.
17. THE SPECIAL LAND
ACQUISITION OFFICER,
HIPPARGI BARRAGE PROJECT.
18. SRI. SHANKAR LAXMAN
MADIGAR ALIAS JADHAV,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI - 591304
TQ: ATHANI AND DIST: BELAGAVI.
NOW AT LINGANUR, TQ. KAGAL,
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RSA No. 101020 of 2023
DIST. KOLHAPUR - 416216
(MAHARASTRA)
19. SMT. SUMITRA
W/O. DURGAPPA NADAVINAMANI,
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR KANNADA SCHOOL,
MADAR GALLI, BANAHATTI-587311,
TQ: JAMAKHANDI, DIST: BAGALKOT
20. SRI. SHIVAJI LAXMAN MADIGAR @ JADHAV
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: SANKONATTI, TQ: ATHANI,
DIST: BELAGAVI -591304
...RESPONDENTS
(BY SRI SANGAMESH S. GULAPPANAWAR, ADVOCATE FOR C/R1 TO
R7, R8, R9 TO R11, R12, R13, R14, R19 & R20;
SMT.LALAMMABANU YARAGATTI & SMT.ASHWINI P. BANKAPUR,
ADVOCATES FOR R15;
R16 TO R18 - SERVICE OF NOTICE DISPENSED WITH).
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 05.10.2023 PASSED IN
R.A.NO.314/2016 BY THE LEARNED VII ADDL. DISTRICT &
SESSIONS JUDGE, BELAGAVI, SITTING AT CHIKKODI AND TO
MODIFY THE FINDINGS OF THE TRIAL COURT ON ISSUE NOS.3 TO 6
AND TO CONFIRM THE JUDGMENT AND DECREE PASSED BY THE
TRAIL COURT IN O.S.ON.19/2012 DATED 19.10.2016, ON THE FILE
OF PRL. SENIOR CIVIL JUDGE, ATHANI, WITH COSTS THROUGHOUT
AS PRAYED, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 101020 of 2023
JUDGMENT
This regular second appeal is filed by the defendants
challenging the judgment and decree dated 05.10.2023,
passed in R.A.No.314/2016, by the VII Addl. District and
Sessions Judge, Belagavi, sitting at Chikkodi, in which appeal
the cross objection filed by the defendants is not considered
by the appellate Court. Therefore, the present regular second
appeal is filed.
2. For the purpose of convenience, the ranking of
the parties is referred as per their status before the trial
Court.
3. The plaintiffs have filed the suit for partition and
separate possession. The trial Court has dismissed the suit.
The plaintiffs have preferred regular appeal before the first
appellate Court in R.A.No.314/2016. In the said
R.A.No.314/2016, the defendants have filed cross objections
under Order 41 Rule 22 of CPC questioning the findings
given by the trial Court on issues No.3 to 6. But the first
appellate Court has not considered the cross objection filed
by the defendants and has only considered the regular
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appeal filed by the plaintiffs and allowed the appeal.
Therefore, being aggrieved by the non considering the cross
objection filed in the regular appeal, the defendants are
before this Court.
4. Heard the arguments of learned counsels
appearing for both sides and perused the material placed
before the Court.
5. The following substantial question of law would
arise for consideration in this appeal.
Whether, under the facts and circumstances
involved in the case, when regular appeal is filed
under section 96 of CPC and in the said appeal
cross objection is filed under Order 41 Rule 22 of
CPC but only considering and disposing of the
appeal without considering the cross objection
filed, is illegal and unjustified?
6. Without adverting to the facts and merits involved
in the case, the matter is liable to be remanded to the first
appellate Court for the reason that the first appellate Court
has not at all taken up the cross objection and considered
and judgment is delivered only on the appeal. Whenever
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cross objection is filed under Order 41 Rule 22 of CPC, it is
having all the characteristics as if appeal is filed and it is
incumbent upon the registry of the appellate Court to treat
the cross objection as a separate appeal and calculate the
Court fee to be paid as per law and then tag with the appeal
already filed. Then it is the duty of the first appellate Court
to consider both the appeal and the cross objection together
and give findings on both the appeal and the cross objection.
The Hon'ble Supreme Court in the case of Dheeraj Singh
vs. Greater Noida Industrial Development Authority
and others, reported in AIR 2023 SC 3110 in similar set
of facts and circumstances has observed at paragraphs
No.17, 19, 20 and 21 as under:
17. In the present case at hand, the
appellants herein, in the court of first appeal filed
a cross objection. It is the claim of the appellants
herein that his cross objection was not considered
by the High Court while passing the impugned
judgement. At this stage, it must be noted that
while cross objections, unlike a regular appeal,
are filed within an already existing appeal,
however, as per Order 41 Rule 22 of the CPC,
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cross objections have all the trappings of a
regular appeal, and therefore, must be considered
in full by the court adjudicating upon the same.
18. xxxx xxxxx xxxxx .....
19. In the case of Santosh Hazari v.
Purushottam Tiwari (Dead) by LR's., (JT (2001) 2
SC 407: (AIR 2001 SC 965) this Court held that
the court of appeal has a duty to apply its mind to
all issues raised before it, and to discharge such
duty, it must also record its findings against all
such issues raised. For the sake of convenience,
the relevant paragraph of the said judgment is
being extracted herein.
"The Appellate Court has jurisdiction to
reverse or affirm the findings of the trail Court.
First appeal is a valuable right of the parties and
unless restricted by law the whole case is therein
open for rehearing both on questions of fact and
law. The judgement of the Appellate Court must,
therefore, reflect its conscious application of mind,
and record findings supported by reasons, on all
the issues arising along with the contentions put
forth, and pressed by the parties for decision of
the appellate Court.
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While reversing a finding of fact the
Appellate Court must come into close quarters
with the reasoning assigned by the trial court and
then assign its own reasons for arriving at a
different finding. This would satisfy the Court
hearing a further appeal that the First Appellate
Court has discharged the duty expected of it."
20. In the case of Madhurkar and Ors. v.
sangram and Ors., (2001) 4 SCC 756: (AIR 2001
SC 2171) this Court, while reiterating the
principles laid down in the Santosh Hazari
Judgement (AIR 2001 SC 965) (Supra), observed
that the court of first appeal has a duty to record
its findings qua all the issues raised before it, and
in cases where the High Court fails to do the
same, the matter must be remanded to the same
court again for fresh adjudication.
21. Further, in the case of Jitendra Prasad
Nayak v. Anant kumar Sah and Anr., [(1998) 9
SCC 383: 1999 AIR SCW 4746] this Court, in an
identical circumstance wherein the cross
objections filed by the appellant therein was not
considered by the Court of first appeal, held that
remanded the case back to the High Court and
observed as under:
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"Admittedly, a cross-objection was filed by
the appellant-landlord against the rejection by the
first appellate court of the existence of one of the
two grounds of eviction. However, while deciding
the appeal of the respondent-tenant in his favour
against the decision of the first appellate court on
the other ground, the existence of the cross
objection appears to have been missed by the
High Court with the result that there is no decision
given on the cross objection. The impugned
judgment cannot, therefore, be sustained
inter alia for this reason. We are also of the
opinion that the question relating to existence of
the ground of bona fide need which has been
decided in favour of the tenant requires a fresh
determination by the High Court along with the
other point relating to default in payment of rent
which was the subject matter of cross-
objection....."
7. In the present case also the first appellate Court
has not considered the cross objection and has considered
regular appeal only and delivered the judgment. It is the
duty cast on the first appellate Court to give findings on all
issues and upon the points for consideration raised in the
appeal. In the present case challenging the findings given on
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issues No.3 to 6, cross objection is filed. But the first
appellate Court without adverting to the challenge made so
far as findings on issues No.3 to 6 has proceeded with
considering the regular appeal only. Whenever cross
objection is filed in the appeal, it should be registered
separately as it is having all the characteristics of appeal and
calculate the Court fee payable as both are independent
appeals. Therefore, the cross objection shall be tagged with
regular appeal and consider together by the first appellate
Court and give finings on all the issues and points for
consideration formulated in this regard. But the first
appellate Court has committed error in considering the
appeal only without considering the cross objection.
8. Therefore, on this reason the judgment and
decree passed by the first appellate Court is liable to be set
aside and remand the case to the first appellate Court with a
direction to consider the appeal and cross objection together
and give findings on it and dispose of both the appeal and
cross objection as per law. Accordingly I answer the
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substantial question of law in the affirmative. Hence,
I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated
05.10.2023, passed in R.A.No.314/2016, by the
VII Addl. District and Sessions Judge, Belagavi,
sitting at Chikkodi, is hereby set aside.
iii) The case is remanded to the first
appellate Court for fresh consideration of appeal
and cross objection together as per law.
iv) Both the parties shall appear before
the first appellate Court on 29.05.2024 without
expecting notice from the Court.
v) The first appellate Court is directed to
dispose of the appeal and cross objection as
ordered above, as expeditiously as possible not
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later than eight months from the date of
appearance of the parties.
vi) No order as to costs.
Sd/-
JUDGE
MRK
CT:ANB
