Karnataka High Court
Chandrabai W/O. Annasaheb Patil vs Anekant S/O. Devendra Desai on 31 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC-D:10799
RSA No. 5847 of 2011
C/W RSA No. 5846 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5847 OF 2011 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 5846 OF 2011
IN REGULAR SECOND APPEAL NO. 5847 OF 2011:
BETWEEN:
CHANDRABAI W/O. ANNASAHEB PATIL,
SINCE DECEASED BY HER LRS,
1. SHRI ATIKRANT @ ANNASAHEB
DWARAPAL GORAWADE,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI-591238,TQ: CHIKODI,
DIST: BELGAUM.
2. SHRI ATIVEER DWARAPAL GORAWADE,
Digitally signed AGE: 40 YEARS, OCC: AGRICULTURE,
by YASHAVANT
NARAYANKAR R/O: PATTANKUDI 591238,
Location: HIGH TQ: CHIKODI, DIST: BELGAUM.
COURT OF
KARNATAKA 3. SHRI ANIVRATIK DWARAPAL GORAWADE,
DHARWAD
BENCH AGE: 38 YEARS, OCC: AGRICULTURE,
DHARWAD R/O: PATTANKUDI 591238, TQ: CHIKODI,
DIST: BELGAUM.
...APPELLANTS
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND:
SMT. LAXMIBAI W/O BABAGOUDA PATIL,
SINCE DECEASED BY HER LRS
-2-
NC: 2024:KHC-D:10799
RSA No. 5847 of 2011
C/W RSA No. 5846 of 2011
SMT. AKKATAI @ PADMASHRI
W/O ADIRAJ @ DADASAHEB PATIL
@ SHEDBALKAR,
SINCE DECEASED BY HER LRS
1. RAJENDRA ADIRAJ PATIL @ SHEDBALKAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O NIMBALKAR COLONY,
BEHIND RAJESH MOTOR GARAGE,
KOLHAPUR-416012.
2. SHRI MAHENDRA ADIRAJ PATIL
@ SHEDBALKAR,
DIED ON 09.02.2015
RESPONDENTS NO.1 & 3 TO 6 ARE HIS
LEGAL HEIRS.
3. SMT. KUNDAPRABHA W/O DEVENDRA
@ MALAGONDA DESAI,
CALLING HERSELF AS KUNDAPRABHA
W/O. DEVENDRA @ MALAGONDA PATIL,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O: PATTANKUDI 591238, TQ: CHIKODI,
DIST: BELGAUM.
4. SMT. NANDAPRABHA W/O AJITNATH CHOUGALA,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: BEDKIHAL - 591214, TQ: CHIKODI,
DIST: BELGAUM.
5. SMT. SUREKHA W/O ANNASAHEB PATIL @
VASAGADEKAR, AGE: 52 YEARS,
OCC: HOUSEHOLD,
R/O: C/O: ANNASAHEB PATIL
@ VASAGADEKAR-ADVOCATE,
TILAK CHOWK SOLAPUR -413 001.
MAHARASHTRA STATE.
6. SMT. REKHA D/O ADIRAJ PATIL,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: NIMBALKAR COLONY,
BEHIND RAJESH MOTOR GARAGE,
KOLHAPUR - 416012. MAHARSHTRA STATE.
...RESPONDENTS
(BY V/O DATED 02-09-2016, R-1, R-3 TO 6
ARE LRS OF DECEASED R2;
-3-
NC: 2024:KHC-D:10799
RSA No. 5847 of 2011
C/W RSA No. 5846 of 2011
R1, R3 TO 6 ARE SERVED )
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 OF CIVIL PROCEDURE CODE.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
17.08.2011 PASSED BY THE PRESIDING OFFICER, FAST TRACT
COURT-I, CHIKODI IN R.A.NO.5/2008 AND SET ASIDE THE
JUDGMENT AND DECREE DATED 10.12.2007 PASSED BY THE
ADDITIONAL CIVIL JUDGE JR.DN. NIPANI IN O.S.NO.64/1997 AND
ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DECREEING
THE SUIT OF APPELLANTS IN O.S.NO.64/1997 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (JR.DN.), NIPANI.
IN REGULAR SECOND APPEAL NO. 5846 OF 2011:
BETWEEN:
SMT. CHANDRABAI W/O ANNASAHEB PATIL,
SINCE DECEASED BY HER LRS,
1. SHRI ATIKRANT @ ANNASAHEB
DWARAPAL GORAWADE,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI-591238, TQ: CHIKODI,
DIST: BELGAUM.
2. SHRI ATIVEER DWARAPAL GORAWADE,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI 591238, TQ: CHIKODI,
DIST: BELGAUM.
3. SHRI ANIVRATIK DWARAPAL GORAWADE,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI 591238, TQ: CHIKODI,
DIST: BELGAUM.
...APPELLANTS
(BY SRI DINESH M. KULKARNI AND
SMT. VIDYA D. KULKARNI, ADVOCATES)
-4-
NC: 2024:KHC-D:10799
RSA No. 5847 of 2011
C/W RSA No. 5846 of 2011
AND:
1. SHRI ANEKANT S/O. DEVENDRA DESAI,
FALSELY CALLING HIMSELF AS
ANEKANT MALAGOUDA PATIL,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI-591238, TQ: CHIKODI,
DIST: BELGAUM.
2. SHRI DEVENDRA ANNASAHEB DESAI,
FALSELY CALLING HIMSELF AS
MALAGOUDA A/F BABAGOUDA PATIL,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: PATTANKUDI-591238, TQ: CHIKODI,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI SHIVARAJ S. BALLOLI, ADVOCATE FOR R1 AND R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 OF CIVIL PROCEDURE CODE.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
17.08.2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT-I, CHIKODI IN R.A.NO.6/2008 AND SET ASIDE THE
JUDGMENT AND DECREE DATED 10.12.2007 PASSED BY THE
ADDITIONAL CIVIL JUDGE JR.DN. NIPANI IN O.S.NO.78/1997 AND
ALLOW THIS APPEAL WITH COSTS THROUGHOUT BY DECREEING
THE SUIT OF APPELLANTS IN O.S.NO.78/1997 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE JR.DN.NIPANI.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-5-
NC: 2024:KHC-D:10799
RSA No. 5847 of 2011
C/W RSA No. 5846 of 2011
ORAL JUDGMENT
1. These appeals are filed by the plaintiffs
challenging the common judgment passed in
O.S.No.78/1997 and O.S.No.64/1997 dated 10.12.2007 on
the file of the Addl.Civil Judge (Jr.Dn.), Nippani, thereby
the suits filed for permanent injunctions, are dismissed.
2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. The plaintiffs have filed suits for permanent
injunctions, claiming that they are owners and in
possession of the suit schedule property, but the
defendants are interfering with their possession, therefore,
filed suits for permanent injunctions.
4. The defendants have also raised many
contentions in support of their case and claim that they are
in possession of the property. The trial Court while
appreciating the evidence on record at paragraph 20, has
NC: 2024:KHC-D:10799
observed that electric pump sets are installed in the suit
lands of the plaintiffs and further observed that the
plaintiffs are cultivating some lands and they are in
possession of some other properties, but not the suit
property. By observing so, the suits filed by the plaintiffs
are dismissed. Against that, the plaintiffs have filed appeal
before the first appellate Court.
5. In the first appellate Court, the plaintiffs have
filed interlocutory applications for production of additional
evidence, but the first appellate Court without considering
the said interlocutory applications filed for additional
evidence, has disposed of the appeals. Therefore, the
appeals are disposed of but the interlocutory applications
remained without making any observation of the said
applications filed for additional evidence.
6. Having heard the arguments from both the
sides, following substantial question of law arises for
consideration:
NC: 2024:KHC-D:10799
"Whether, under the facts and
circumstances involved in the case, the first
appellate Court is justified in deciding appeal
without considering the interlocutory applications
filed for production of additional evidence, where
the applications for production of additional
evidence is filed?"
7. The Hon'ble Supreme Court in the case of
Jatinder Singh and Another Vs.Mehar Singh and
Others, reported in (2009)17 SCC 465, has observed at
paragraph 4 as follows:
"4. While deciding the second appeal,
however, the High Court had failed to take notice
of the application under Order 41 Rule 27 of the
Code of Civil Procedure and decide whether
additional evidence could be permitted to be
admitted into evidence. In our view, when an
application for acceptance of additional evidence
under Order 41 Rule 27 of the Code of Civil
Procedure was filed by the appellants, it was the
duty of the High Court to deal with the same on
merits. That being the admitted position, we have
no other alternative but to set aside the judgment
of the High Court and remit the appeal back to it
for a decision afresh in the second appeal along
with the application for acceptance of additional
evidence in accordance with law."
NC: 2024:KHC-D:10799
8. Therefore, when interlocutory application is filed
for production of additional evidence in the appeal, the
appellate Court shall have to consider the said application
during considering the appeal on merits and to take
appropriate decision on the said application as per law.
But, in the present case, the first appellate Court has not
considered the applications filed for additional evidence.
Therefore, the Court is of the opinion to remit the appeals
to the first appellate Court for fresh disposal in accordance
with law and the applications filed for additional evidence
shall have to be considered along with main appeals.
Therefore, without expressing any opinion on the merits of
the case, the appeals are remitted to the first appellate
Court by setting aside the judgment and decree passed by
the first appellate Court only. Accordingly, substantial
question of law is answered in the negative. Hence, I
proceed to pass the following:
ORDER
i. Regular second appeals are allowed.
NC: 2024:KHC-D:10799
ii. The judgment and decree passed in
R.A.No.5/2008 and R.A.No.6/2008 dated
17.01.2011 on the file of the Presiding Officer,
Fast Track Court-I, Chikodi, are set aside. The
matter is remitted back to the first appellate
Court.
iii. The first appellate Court shall consider the
appeals on its merit along with applications
filed for additional evidence as per law.
iv. The parties shall appear before the first
appellate Court on 28.08.2024 without
expecting notice from the first appellate Court
and the first appellate Court shall dispose of
the matters within a period of six months from
28.08.2024.
v. The Principal District and sessions Judge,
Belagavi shall assign these appeals before the
appropriate Courts.
vi. All contentions are kept open.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
KGK
