Karnataka High Court
Sri. Govindappa vs Sri. N H Rehman on 6 August, 2024
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RSA No. 119 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.119 OF 2018 (DEC/INJ)
BETWEEN:
SRI. GOVINDAPPA
S/O VENKATESHAPPA @ KATHEPPA,
AGED ABOUT 53 YEARS,
R/AT NAYANAHALLI MAJARA,
KOTHUR VILLAGE,
BETHAMANGALA NEW TOWN,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563116.
...APPELLANT
(BY SRI. RAGHAVENDRA RAO K., ADVOCATE)
AND:
1. SRI. N H REHMAN
S/O LATE HYDER SAB,
AGED ABOUT 68 YEARS,
Digitally signed by
ARUNKUMAR M S
Location: High 2. DILSHAD BEGUM
Court of Karnataka SINCE DECEASED REP. BY LRS.
SRI. N.H. REHMAN
WHO IS ALREADY ON RECORD
IN THIS APPEAL AS RESPONDENT NO.1
AND RESPONDENT NOS. 2(a) TO 2(c)
2(a). AFROZE BEGUM
D/O N.H. REHMAN
AGED MAJOR
2(b). FIROZE BEGUM
D/O N.H. REHMAN
AGED MAJOR
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RSA No. 119 of 2018
2(c). FIAZ
S/O N.H. REHMAN
AGED MAJOR
3. SRI. VENKATESHAPPA
S/O VENKATESHAPPA @ KATHEPPA,
AGED ABOUT 55 YEARS,
4. SRI. MUNIYAPPA
S/O VENKATESHAPPA @ KATHEPPA,
AGED ABOUT 51 YEARS,
5. SMT. MUNILAKSHMAMMA
W/O GOVINDAPPA,
AGED ABOUT 48 YEARS,
RESPONDENT NOS. 1, 2(a) TO 2(c),
AND 3 TO 5 ARE
R/OF NAYANAHALLI MAJARA,
KOTHUR VILLAGE,
BETHAMANGALA NEW TOWN,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563116.
CHIKKA VENKATASWAMI BOVI
SINCE DEAD BY HIS LRS.,
6. SRI. VENKATESHAPPA,
S/O LATE CHIKKA VENKATASWAMI BOVI,
AGED ABOUT 58 YEARS,
R/OF NAYANAHALLI MAJARA,
KOTHUR VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563116.
7. SRI. RAJAPPA
S/O VENKATESHAPPA,
AGED ABOUT 28 YEARS,
R/AT NAYANAHALLI MAJARA,
KOTHUR VILLAGE,
BETHAMANGALA NEW TOWN,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563116.
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RSA No. 119 of 2018
8. SRI. A.M. LAKSHMINARAYANA
S/O SRI MIDDEMANE MUNIYAPPA,
AGED ABOUT 67 YEARS,
R/OF BETHAMANGALA NEW TOWN,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563116.
...RESPONDENTS
(BY SRI. Y.R. SADASIVA REDDY, SENIOR COUNSEL FOR
SRI. RAHUL S. REDDY, ADVOCATE FOR R1 AND LRS OF R2
V/O DATED 09.08.2018 NOTICE TO R5 TO R8 IS
DISPENSED WITH;
V/O DATED 19.12.2019 NOTICE TO 3 & 4
IS DISPENSED WITH)
**********
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE
JUDGMENT AND DECREE DATED 13.11.2017 PASSED IN R.A.
NO.84/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, K.G.F, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
15.10.2015 PASSED IN O.S. NO.551/2010 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, K.G.F.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 119 of 2018
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by defendant No.1 challenging
the Judgment and Decree dated 13.11.2017 in
R.A.No.84/2015 on the file of the Additional Senior Civil Judge
and JMFC at KGF allowing the appeal and as such, setting aside
the Judgment and Decree dated 15.10.2015 in
O.S.No.551/2010 on the file of Principal Civil Judge and JMFC,
KGF, decreeing the suit in part.
2. For the sake of convenience, parties are referred with
reference to their rank before the Trial Court.
3. It is the case of the plaintiffs that plaintiff No.1 is the
owner and in possession of the suit schedule property
consisting of item Nos.1 and 2. It is the case of the plaintiffs
that, plaintiff No.1 and defendant No.7 have sold item No.2 of
the suit schedule property in favour of the plaintiff No.2 as per
registered Sale Deed dated 12.11.2009 and as such, the
plaintiff No.2 became the owner of item No.2 of the suit
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schedule property. It is also stated by the plaintiffs that
pursuant to the execution of the registered Sale Deed referred
to above, the mutation in respect of the land in question was
transferred in favour of the plaintiffs. It is stated that plaintiffs
are in possession of the schedule property and is in cultivation
of the land in question. However, the defendants without any
semblance of right, title or interest over the schedule property
have interfered with the peaceful possession of the schedule
property of the plaintiffs and as such the plaintiffs filed suit in
O.S.No.551/2010 seeking relief of permanent injunction
restraining the defendants from interfering with the suit
schedule property.
4. On service of notice, defendant Nos.2 to 7 were
unrepresented and accordingly, they have been placed exparte.
Defendant No.1 has filed detailed written statement denying
the averments made in the plaint. It is the specific case of
defendant No.1 with regard to item No.2 of the schedule
property that the land described in item No.2 is not measuring
2 acres 20 guntas but the measurement of land bearing
Sy. No.39 of Nayanahalli Majara, Kothur Village, Bethamangala
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Hobli, Bangarpet Taluk is four acres. It is also stated by
defendant No.1 that the land to an extent of 1 acre in
Sy. No.28 is a bagarhukum saguvali land and defendant No.1 is
in cultivation of the said land and accordingly, it is the case of
defendant No.1 that plaintiffs have illegally interfered with the
possession of the defendant No.1 in respect of the subject land
to illegally knock off 1 acre of land in question, accordingly,
defendant No.1 sought for dismissal of the suit.
5. The Trial Court based on the pleadings on record, framed
issues for its consideration. In order to establish their case,
plaintiffs have examined two witnesses as P.W.1 and P.W.2 and
got marked nine documents as Exs.P1 to P9. The defendants
have examined three witnesses and produced 18 documents
and same were marked as Exs.D1 to D18. The Trial Court, after
considering the material on record, by its Judgment and Decree
dated 15.10.2015, allowed the suit in part holding that the
plaintiff is in possession of item No.1 of the suit schedule
property and thereby restrained defendants from interfering
with item No.1 of the schedule property. In so far as relief for
temporary injunction in respect of item No.2 of the schedule
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property is concerned, the Trial Court dismissed the suit.
Feeling aggrieved by the same, with regard to dismissal of the
suit in respect of the item No.2 of the schedule property is
concerned, plaintiffs have filed R.A.No.84/2015 on the file of
the First Appellate Court. The defendants entered appearance
and resisted the same. The First Appellate Court, after re-
appreciating the material on record, by its Judgment and
Decree dated 13.11.2017, allowed the appeal and as such, set
aside the Judgment and Decree dated 15.10.2015 in
O.S. No.551/2010 in respect of the item No.2 schedule
property. Feeling aggrieved by the same, defendant No.1 has
presented this appeal.
6. I have heard Sri. Raghavendra Rao K., learned counsel
for the appellant and learned Senior Counsel Sri.Y.R. Sadashiva
Reddy appearing on behalf of Sri. Rahul S. Reddy, learned
counsel for respondent No.1 and legal representatives of
deceased respondent No.2.
7. This Court, by order dated 08.01.2020 has formulated the
following substantial questions of law:
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"1. Whether the First Appellate Court was justified in
allowing the application filed by the plaintiffs under Order
41 Rule 27 of CPC without following the procedure laid
down under Order 41 Rule 27 and Rule 28 of CPC?
2. Whether the First Appellate Court was justified in
accepting the contention of the plaintiff that the Kharab
purportedly attached to the main property could be
deemed to have been validly transferred, without even
examining whether the Kharab was 'A' or 'B' Kharab and
whether it was transferable?
3. Whether the First Appellate Court erred in reversing
the judgment of the trial court while admittedly the
plaintiffs sought to make out a new case by producing
additional documents and therefore the plaintiffs were
permitted to make out a new case which was neither
pleaded nor proved before the trial court?
4. Whether the First Appellate Court was justified in
granting injunctive relief in respect of part of item of No.2
of the suit schedule property (22 guntas of kharab land)
even though plaintiffs failed to produce any evidence to
prove possession over the disputed portion of item No.2?"
8. Sri. Raghavendra Rao, learned counsel appearing for the
appellant submitted that the present appeal was dismissed on
merits by this Court, by Order dated 10.03.2023 and thereafter
the defendant no.1 filed R.P. No.177/2023 and the review
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petition came to be allowed and as such, the order dated
10.03.2023 was recalled. In this regard, he invited the
attention of the Court to the application filed by the plaintiff
No.1 in R.A. No.84/2015 under Order 41 Rule 27 of CPC as well
as the finding recorded by this Court while passing the order
dated 04.09.2023 in R.P. No.177/2023. In this regard, the
principal argument advanced by Sri. Raghavendra Rao is that
the First Appellate Court ought to have given a finding relating
to the application filed by the plaintiff No.1 under Order 41 Rule
27 of CPC and in the absence of the same, the First Appellate
Court ought not to have passed the impugned Judgment and
Decree. Accordingly, learned counsel sought for interference of
this Court.
9. Per contra, Sri. Y.R. Sadasiva Reddy, learned Senior
Counsel appearing on behalf of respondent No.1/plaintiff invited
the attention of the Court to the finding recorded by the First
Appellate Court, particularly with regard to para No.39 and
submitted that even in the absence of those documents
referred to in the application filed by the plaintiff under Order
41 Rule 27 of CPC, the First Appellate Court has passed the
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impugned Judgment and Decree, looking into the other
documents produced by the plaintiffs as well as the defendants
thereunder and therefore, learned Senior Counsel submitted
that allowing or rejecting the application would not have any
bearing on the Judgment and Decree that has been passed by
the First Appellate Court and accordingly, sought for dismissal
of the appeal.
10. Having taken note of the submissions made by the
learned counsel appearing for the parties, the substantial
questions of law referred to above, this Court is of the opinion
that it is relevant to consider whether the First Appellate Court
was justified in ignoring the application filed by the plaintiff
under Order 41 Rule 27 of CPC?
11. In this regard, I have carefully examined the finding
recorded by this Court in R.P. No.177/2023. At para Nos.10 and
11 of the Order dated 04.09.2023 in R.P. No.177/2023 it reads
as under:
"10. Having perused these paragraphs No.28 to 31,
though an observation is made by the First Appellate
Court in paragraph No. 39 that those documents which
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have been filed along with an application filed under
Order 41 Rule 27 and of CPC other documents are enough
to prove that plaintiff has proved their case, but in detail
discussed in paragraphs No.28 to 31 with regard to the
kharab land is concerned and hence there is a force in the
contention of the counsel appearing for the review
petitioner counsel that before giving such finding, the
First Appellant Court taken note of the additional
documents which have been produced before the First
Appellate Court i.e. phody document and also the Akar
bandh document and this has not been discussed in the
judgment of this Court in R.S.A.No.119/2018 vide order
dated 10.03.2023 and no doubt this Court while
answering substantive question of law in respect of item
No.2 is concerned, in paragraph No. 18 taken note of the
fact that, though the document are produced, the First
Appellate Court has not been allowed the I.A. and also
disposed of by giving the reasoning in paragraph No.39
under such application, only sought permission to produce
the certified copy of Tippany and Karnataka Revision
Settlement Akar Bandh. But those documents are not
considered by the First Appellate Court in paragraphs No.
28 to 31 and the same has been discussed taking into
note of the phody as well as the Akar Bandh, in order to
comes to a conclusion of the possession of the
respondents to the extent of 22 guntas of karab land and
when such finding is given and though an observation is
made in paragraph No.39 that in the absence of those
documents also Court can comes to the conclusion that
the plaintiff has proved the same and the same has been
extracted by this Court in paragraph No. 18 and having
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perused the entire judgment of this Court and paragraphs
No.28 to 31 regarding discussion made by the First
Appellate Court with regard to the additional documents
which have been produced and the same is not discussed
in the order. Hence, it requires to review the order and
there is a apparent mistake on record in not considering
paragraphs No.28 to 31 while passing the order and
hence, I am of the opinion that review petitioner has
made out the ground to review the order, since mistake
apparent on record is not considering the discussion made
by the First Appellate Court in paragraphs No. 28 to 31.
11. The counsel appearing for the respondents would
vehemently contend that no single piece of material is
placed before the Court by the review petitioner with
regard to dispossession is concerned except claiming
unauthorized possession. When this Court found the
material with regard to the discussion made by the First
Appellate Court with regard to the additional document is
concerned, and this Court also while admitting the second
appeal framed the issue with regard to discussion made in
respect of the additional documents and no doubt the
First Appellate Court while disposing of the regular appeal
made an observation that I.A. is disposed of and hence,
the same has to be considered in RSA by recalling the
order of this Court and hence, Review Petition is allowed
and the order dated 10.03.2023 is hereby reviewed and
matter has to be considered afresh in keeping the
contentions urged by the review petitioner also looking
into the paragraphs No.28 to 31 while considering the
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matter on merits and hence, I answer the points as
affirmative."
12. Though this Court dismissed the appeal on merits on
10.03.2023, however reviewed the said order on the sole
ground that the First Appellate Court has not considered the
application filed by the plaintiff, at para 28 to 31 of the said
Judgment. In that view of the matter, I am of the view that,
when the First Appellate Court has not considered the
application, in this regard, this Court in the case of
SHANTHAVEERAPPA Vs. K.N.JANARDHANACHARI reported
in ILR 2007 KAR 1127. This Court has held that whenever
additional evidence is allowed to be produced, the Appellate
Court may either take such evidence or direct the Court from
whose decree the appeal is preferred or any other subordinate
Court, to take such evidence and send it to the Appellate Court
as required under Rule 28 CPC.
13. At this juncture, it is also relevant to follow the
declaration of law made by the Hon'ble Supreme Court in the
case of AKHILESH SINGH ALIAS AKHILESHWAR SINGH
Vs. LAL BABU SINGH AND OTHERS reported in (2018) 4
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SCC 659 at paragraph Nos. 12 to 14 therein, which read as
follows:
"12. Order 41 Rule 27 CPC, which deals with the
provision of additional evidence in appellate court,
provides for the grounds and circumstances on which the
appellate court may allow such evidence or documents or
witnesses to be examined. Order 41 Rule 27 sub-rule (2)
further provides that wherever additional evidence is
allowed to be produced by an appellate court, the court
shall record a reason for its admission. Order 41 Rule 27
is silent as to the procedure to be adopted by the High
Court after admission of additional evidence. Whether
after admission of additional evidence, it is necessary for
the appellate court to grant opportunity to the other party
to lead evidence in rebuttal or to give any opportunity is
not expressly provided in Order 41 Rule 27.
13. One provision, which is part of Order 41, which
also needs to be noted is Order 41 Rule 2, which is as
follows:
"2. Grounds which may be taken in appeal.--
The appellant shall not, except by leave of the court,
urge or be heard in support of any ground of objection
not set forth in the memorandum of appeal; but the
appellate court, in deciding the appeal, shall not be
confined to the grounds of objections set forth in the
memorandum of appeal or taken by leave of the court
under this rule:
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Provided that the court shall not rest its decision on
any other ground unless the party who may be
affected thereby has had a sufficient opportunity of
contesting the case on that ground."
14. Order 41 Rule 2 provides that the appellant shall
not, except by leave of the court, be allowed to urge any
ground in the appeal, which is not set forth in the
memorandum of appeal. The proviso to Order 41 Rule 2
engrafts a rule, which obliged the Court to grant a
sufficient opportunity to the contesting party, if any new
ground is allowed to be urged by another party, which
may affect the contesting party. The provision engrafts
rule of natural justice and fair play that contesting party
should be given opportunity to meet any new ground
sought to be urged. When the appellate court admits the
additional evidence under Order 41 Rule 27, we fail to see
any reason for not following the same course of granting
an opportunity to the contesting party, which may be
affected by acceptance of additional evidence. In the
present case, additional evidence, which were brought on
the record were registered sale deeds, which were
executed by the present appellant and his other co-
sharers and what was relied on before the High Court was
that the appellant admitted in the sale deeds that the
partition has taken place in the family. The main issue in
the first appeal before the High Court was as to whether
the finding of the trial court that no partition by metes
and bounds has taken place in the family is correct or not.
The additional evidence which was admitted has been
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relied on by the High Court while allowing the appeal. It
was in the interest of justice that the High Court ought to
have allowed opportunity to the plaintiffs, who were
respondents to the first appeal to either lead an evidence
in rebuttal or to explain the alleged admissions as relied
on by the defendants. The mere fact that no counter-
affidavit was filed to the IAs was not decisive. Since IAs
having not been admitted, occasion for counter-affidavit
did not arise at any earlier point of time. The High Court
on the same day i.e. 8-3-2017 has allowed [Lal
Babu v. Akhilesh Singh, 2017 SCC OnLine Pat 309] the
IAs as well as the first appeal. The fact that the contesting
respondents to the first appeal, who are the appellant
before us were not represented at the time of hearing of
the first appeal, was not a reason for not giving
opportunity to them to lead evidence in rebuttal."
14. Taking into consideration the declaration of law made by
this Court as well as the Hon'ble Supreme Court as above, I
have carefully examined the finding recorded by the First
Appellate Court with regard to I.A.4 filed by the plaintiffs under
Order 41 Rule 27 of CPC. In the operative portion, the First
Appellate Court has stated that the said application is disposed
of. However, in the discussion at para 39 would indicate that
even in the absence of said application, the plaintiffs have
proved their case. However the outcome of the Judgment
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rendered by the First Appellate Court would not say whether
the said application is considered and allowed or considered
and rejected. In that view of the matter, I find force in the
submission made by the learned counsel for the appellant.
15. It is also submitted by Sri. Raghavendra Rao K., learned
counsel for the appellant, that the grievance of the defendant
No.1 before this Court is only in respect of the item No.2 of the
schedule property and therefore, I am of the view that, the
matter be remitted to the First Appellate Court for fresh
consideration with regard to the finding to be recorded by
considering the application in I.A.4 filed by the appellant/
plaintiff therein under Order 41 Rule 27 of CPC, only with
regard to item No.2 of the suit schedule property and dispose
of the same at the earliest.
16. In the result, the substantial question of law framed by
this Court referred to above, favours defendant No.1/ appellant
herein and accordingly, the matter is required to be remitted to
the First Appellate Court.
17. Hence, the following:
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ORDER
(i) The Regular Second Appeal is allowed.
(ii) The Judgment and Decree dated 13.11.2017 in R.A.
No.84/2015 on the file of the Addl. Senior Civil Judge and JMFC
at KGF is set aside and the matter is remitted to the First
Appellate Court to reconsider the issue afresh, after affording
fair opportunity of hearing to both side parties on merits as well
as on the application filed by the plaintiff / appellant in I.A.4
under Order 41 Rule 27 of CPC, and pass appropriate orders in
accordance with law, within outer limit of six months from the
date of receipt of certified copy of this order.
(iii) Since the parties herein are represented through
their learned counsel and to expedite the hearing before the
First Appellate Court, parties are directed to appear before the
First Appellate Court on 10.09.2024 at 11.00 a.m. and on their
appearance, the First Appellate Court is directed to dispose of
the appeal on merits in terms of the observations made above.
SD/-
(E.S.INDIRESH)
JUDGE
sac
