Karnataka High Court

Basalingavva vs Neelawwa And Ors on 5 April, 2024

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                                                     NC: 2024:KHC-K:2864
                                                     MSA No. 200246 of 2023




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                           DATED THIS THE 5TH DAY OF APRIL, 2024

                                          BEFORE

                           THE HON'BLE MR. JUSTICE G BASAVARAJA

                          MISCL SECOND APPEAL NO.200246 OF 2023

                   BETWEEN:

                   BASALINGAVVA
                   W/O VIRUPAKSHAPPA PATIL
                   AGE: 70 YEARS,
                   OCC. AGRI. AND H.H.WORK
                   R/O: KADUR VILLAGE, TQ: KUSTAGI
                   DIST: RAICHUR-583277

                                                                ...APPELLANT
                   (BY SRI VINAYAK APTE, ADVOCATE)

                   AND:

                   1.   NEELAWWA
Digitally signed        W/O RAVUTAPPA CHOUDRI
by SWETA
KULKARNI                AGE: 73 YEARS, OCC: HOUSEHOLD
Location: High          R/O: BISANAL VILLAGE
Court of
Karnataka               NOW AT HALYAL VILLAGE,
                        POST: NARASALGI,
                        TQ. BASAVANA BAGEWADI
                        DIST. VIJAYAPURA-586216.

                   2.   SIDDUBAI @ SHIVUBAI
                        W/O MUDAKAPPA HOSAGOUDAR @ HOSALLI
                        AGE: 68 YEARS, OCC: HOUSEHOLD
                        R/O: AMBALNUR VILLAGE
                        TQ: BASAVANA BAGEWADI
                        DIST: VIJAYAPURA-586203.
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                                     NC: 2024:KHC-K:2864
                                       MSA No. 200246 of 2023




3.   LAXMIBAI W/O MALLANAGOUDA PATIL
     AGE: 57 YEARS, OCC: HOUSEHOLD
     R/O: VEERABHADRESHWAR NAGAR,
     NEAR OLD COURT BACKSIDE,
     BASAVANA BAGEWADI, TQ: B. BAGEWADI
     DIST: VIJAYAPURA-586203.

                                               ...RESPONDENTS

     THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC,
PRAYING TO ALLOW THE APPEAL WITH COSTS, THEREBY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
14.10.2022 IN R.A. NO.5/2020 ON THE FILE OF ADDL. SENIOR
CIVIL JUDGE AND JMFC BASAVANA BAGEWADI FOR HAVING
REMANDING IT TO THE TRIAL COURT BY CONFIRMING THE
JUDGMENT AND DECREE DATED 02.01.2020 PASSED IN O.S.
NO.518/2014 ON THE FILE OF THE ADDL. CIVIL JUDGE,
BASAVANA BAGEWADI.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The appellant has preferred this appeal against the order

dated 14.10.2022 passed by the Additional Senior Civil Judge

and JMFC, Basavana Bagewadi [for short, 'the first appellate

Court'] in R.A.No.5/2020.

2. Heard the arguments of the learned counsel for the

appellant.

3. The learned counsel for the appellant has submitted

his argument that the impugned judgment and decree passed

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by the first appellate Court is not only against facts and law but

also against the principles of natural justice. Further, it is

submitted that the suit land was owned and possessed by her

elder sister namely Gourawwa Hanamantraya Patil, who

purchased the same under registered sale deed dated

13.08.1969. The said Gouravva the elder sister of the plaintiff

and defendant No.1 and 2 died intestate and without issues on

9.4.1984 and as such the plaintiff and the defendants No.1 and

2 being the only legal heirs of their deceased elder sister, the

suit land came to be mutated in their joint names vide ME

No.1067 dated 12.5.1984. But thereafter the defendant No.1

behind the back and knowledge of the plaintiff, got created an

alleged entry of ME No.7336 alleging that under partition the

plaintiff and defendant No.2 did relinquished their share and

accordingly she became the owner and possessor of the suit

property on the said order of mutation. But to corroborate the

said fact the defendant No.1 Neelawwa did not lead her oral

and documentary evidence in support of her contention of

ownership and possession pertaining to the suit land in

pursuance with ME No.7336. Though no notice is issued to the

plaintiff and defendant No.2 as provided by law, the above said

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alleged entry of mutation as per Ex.P13 is sanctioned and as

such it does not confer any right, title and interest in favour of

the defendant No.1. Even the defendant No.1 or defendant

No.3 did not produce the alleged deed of partition dated

30.8.1993 before the trial Court or the first appellate Court. It

is the settled preposition of law that mere order of mutation or

relinquishment of right by giving Vardi to the revenue

authorities does not confer any title. The first appellate Court,

without considering such legal aspect of the matter, has

reversed the findings given by the trial Court and come to an

incorrect conclusion by remitting back the matter in dispute to

the trial Court. Therefore, the impugned judgment and decree

passed by the first appellate Court deserves to be set aside.

4. Further, it is submitted that though the defendant

Nos.1 and 3 have taken the alleged contention of Order 2 Rule

2 CPC with regard to maintainability of the suit in view of filing

of the suit in O.S.No.114/2010 and a subsequent suit by her

and the defendants did not produce any records such as plaint,

written statement, judgment and decree passed in earlier

proceedings. But the plaintiff is not a party to the above said

suit and as such, if any judgment and decree that has been

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passed in O.S.No.114/2010, is not binding upon the plaintiff

and she is not concerned with the same, being not a party to

the said suit. The first appellate Court did not take into

consideration such factual aspect of the matter.

5. Further it is submitted that defendants have not

specifically pleaded in the written statement as to from what

date the plaintiff is excluded from enjoyment and possession of

suit property. The impugned judgment and decree passed by

the trial Court is based on mere assumption and presumption in

the absence of specific pleadings as provided under Article 110

of the Limitation Act. The first appellate Court, without framing

any issue and only on the basis of reasons, while answering

point No.1, has come to an incorrect conclusion and remitted

back the matter to the trial Court for fresh disposal. Hence, the

same is not sustainable under law. On all these grounds

sought for allowing this appeal. To substantiate his arguments,

he relied on the decision of the Division Bench of this Court in

the case of Smt. Durgavva & Others vs. Annapurnavva &

Others reported in 2017 (5) KCCR 1068 (DB).

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6. On perusal of para-6 of the judgment of the trial

Court, it is seen that the trial Court has observed that, in the

written statement defendant Nos.1 and 3 have denied the

allegation of the plaintiff by contending that suit is barred by

limitation, M.E. 1336 certified in the year 1993, the suit is not

filed within three years as per Article 110 of the Limitation Act.

7. The first appellate Court in para-31 of the impugned

judgment has observed as under:

"31. Heard the arguments of appellant counsel as well as counsel of respondent No.1. This Court carefully gone through the impugned judgment of trial Court. The appellant has taken the specific contention that, suit of the plaintiff is barred by limitation, but the trial Court has not framed the issue with regard to the point of limitation. When such being so this Court is of the opinion that, it is not fair on the part of a case express any opinion regarding evidence on hand rather leaving the same for re-appreciation of evidence by the trial Court and give an one opportunity to the plaintiff and defendant No.1 and 3 to lead their additional evidence if any and to frame proper and material issues. Hence, it is just and fair to remand the case to the trial Court, as the effective judgment cannot be passed in the absence of proper and material issues. At this stage, it is just and fair to ascertain the real facts and remanding matter to the trial Court without touching to the merits of the case. Hence,

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the judgment passed by t he trial Court is to be set aside. Accordingly, I proceed to answer point No.1 in affirmative."

8. In view of Order XIV of CPC the issues to be framed

with regard to only those pleadings which are asserted by one

party and denied by the other. Though the defendants have

taken specific contention in the written statement that the suit

is barred by time, the trial Court has not framed the issue in

that regard which is contrary to the provisions of Order XIV of

CPC. The first appellant Court has rightly observed the same

and passed the impugned order in accordance with law.

9. I do not find any legal infirmities or illegalities in the

order passed by the first appellate Court. Hence, I proceed to

pass the following:

ORDER

The appeal is dismissed.

The trial Court is directed to dispose of the

matter, as early as possible, but not later than an

outer limit of six months from the date of

appearance of the parties.