Karnataka High Court
The Bijapur Liberal District Education ... vs Vijay S/Oratan Choudhari Ors on 13 November, 2024
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 7216 OF 2013 (DEC/INJ-)
C/W
REGULAR SECOND APPEAL NO. 7221 OF 2013
IN RSA NO.7216/2013
BETWEEN:
THE BIJAPUR LIBERAL DISTRICT
EDUCATION ASSOCIATION,
SOLAPUR ROAD, BIJAPUR - 586101.
REPTD. BY ITS CHAIRMAN
MALLANAGOUDA BASANAGOUDA PATIL.
...APPELLANT
(BY SRI. D. P. AMBEKAR, ADVOCATE)
AND:
ASHPAK 1. VIJAY S/O. RATAN CHOUDHARI,
KASHIMSA
MALAGALADINNI OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI, PATEL GALLI,
BIJAPUR - 586101.
Location: 2. UMESH S/O. RATAN CHOUDHARI,
HIGH
COURT OF AGE: 50 YEARS,
KARNATAKA
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI,
PATEL GALLI,
BIJAPUR- 586101.
(SINCE DECEASED BY LRS)
2a. RANI W/O. UMESH CHOUDHARI,
AGE: 44 YEARS,
OCC: HOUSE HOLD WORK,
R/O. SHAHAPUR AGASI,
GAVALI GALLI, VIJAYAPURA.
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
2b. SUNITA SATISH KALAL,
AGE: 26 YEARS,
OCC: HOUSE HOLD WORK,
R/O SHIVAJIPETH MALIM WADA
TQ: JATH, DIST: SANGLI,
MAHARASHTRA
PIN - 416404.
2c. ANITA KESHAVA JORAPUR,
AGE: 25 YEASR, OCC: HOUSE HOLD WORK,
R/O. H.NO.288/1/13,
LAXMI BADAWANE,
GOKAK, DIST: BELAGAVI,
KARNATAKA, PIN - 591307.
2d. NANDINI RAJU PASALAKAR,
AGE: 27 YEARS, OCC: HOUSE HOLD WORK,
R/O KALAL GALLI, BAILHONGAL RURAL,
BAILHONGAL, SAMPAGAON,
BELAGAVI DISTRICT
PIN - 591102.
2e. RUTIK UMESH CHOUDHARI,
AGE: 14 YEARS, OCC: STUDENT BY
M/G. RANI W/O. UMESH CHOUDHARI,
AGE: 42 YEARS, OCC: HOUSE HOLD WORK,
R/O. SHAHPUR AGASI, PATEL GALLI,
VIJAYPUR- 586101.
2f. MONIKA UMEHS CHOUDHARI,
AGE: 26 YEARS, OCC: STUDENT,
C/O. RANI W/O. UMESH CHOUDHARI,
R/O: SHAHAPUR AGASI, PATEL GALLI,
VIJAYAPURA - 586101.
3. GAJANAN S/O. RATAN CHOUDHARI,
AGE: 46 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI, PATEL GALLI,
BIJAPUR-586101.
4. AKASH S/O. RATAN CHOUDHARI,
AGE: 36 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI,
PATEL GALLI,
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
BIJAPUR-586101.
5. PRAKASH
S/O. RATAN CHOUDHARI,
AGE: 33 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI,
PATEL GALLI,
BIJAPUR - 586101.
6. RAMESH S/O. BHIMASHI MANE,
AGE: 48 YEARS,
OCC: BUSINESS
R/O: HOTEL RAJKAMAL, KHETWADI,
14TH STREET, GRANT ROAD,
NEAR PETROL BUNK,
MUMBAI - 400001.
6a. MISS AMRITA D/O. RAMESH MANE,
AGE: 19 YEASR,
OCC: STUDENT,
6b. HRITHIK S/O. RAMEHS MANE,
AGE: 10 YEARS, OCC: STUDENT,
BY M/G SMT. ANITA
W/O. RAMESH MANE,
AGE: 49 YEARS,
OCC: HOUSE HOLD WORK
6c. HRITHIKA D/O RAMESH MANE,
AGE: 10 YEARS, OCC: SUDENT,
BY M/G. SMT. ANITA
W/O. RAMESH MANE
AGE: 49 YEARS,
OCC: HOUSE HOLD WORK
6d. SMT. SUNDRABAI
W/O. BHIMASEN MANE,
AGE: 78 YEARS,
OCC: HOUSE HOLD WORK,
ALL ARE R/O: MODERN BREACH CANDY APARTMENT,
VAIBHAV BUILDING, 2ND FLOOR,
'B' BLOCK, WARDEN ROAD,
BULABAI DESAI ROAD,
MUMBAI - 400026. (6a to 6d).
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
7. ANITA W/O. RAMESH MANE,
AGE: 37 YEARS,
OCC: HOUSEHOLD WORK,
R/O: HOTEL RAJKAMAL, KHETWADI,
14TH STREET, GRANT ROAD,
NEAR PETROL BUNK,
MUMBAI-400001.
8. VINAYAK S/O. PRALHAD MANE @ BHAJANTRI,
AGE: 27 YEARS, OCC: BUSINESS
R/O: JORAPUR PETH,
BABLESHWAR NAKA,
BIJAPUR-586101.
9. MAINABAI W/O. APPARAO MANE,
AGE: 63 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD, BIJAPUR-586101.
10. KISHOR S/O. APPARAO MANE,
AGE: 36 YEARS,
OCC: BUSINESS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
BIJAPUR- 586101.
11. ASHOK S/O. APPARAO MANE,
AGE: 33 YEARS,
OCC: BUSINESS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
BIJAPUR -586101.
12. ANAND S/O. APPARAO MANE,
AGE: 29 YEARS,
OCC: BUSINESS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
BIJAPUR - 586101.
13. SANTOSH S/O. APPARAO MANE,
AGE: 27 YEARS,
OCC: BUSINESS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
BIJAPUR - 586101.
...RESPONDENTS
(BY SRI. G.V. CHANDRASHEKAR, SENIOR COUNSEL FOR
SRI. DEEPAK V. BARAD, ADVOCATE FOR R-1, R-4 AND R-5;
SRI. M.B. NARAGUND, SENIOR COUNSEL FOR SRI. S.B. PATIL,
ADVOCATE FOR R2 (A) TO R2 (F);
SRI.S.S.SAJJANSHETTY, ADVOCATE FOR R-6(A) TO (D), R-7 AND R8;
SRI. SUBODH T. DHARWADKAR, ADVOCATE FOR R-9 TO R-13.
THIS RSA FILED U/S. 100 OF CPC R/W ORDER 41 RULE 1 OF
C.P.C., PRAYING TO CALL FOR RECORDS WHICH CAUSED IN
PASSING THE IMPUGNED ORDER DATED 14.03.2013 IN
R.A.NO.77/2012 PASSED BYTEH FAST TRACT COURT-I, BIJAPUR AND
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 14.03.2013 PASSED BY THE FAST TRACK COURT-I, BIJAPUR
ALLOWING R.A.NO.77/2012 AND DISMISSING THE CROSS
OBJECTIONS OF THE APPELLANT HEREIN AND THEREBY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 30.03.2012 PASSED BY
THE II ADDL. SENIOR CIVIL JUDGE, BIJAPUR IN O.S.NO.166/2005,
WITH COST THROUGH OUT AND FURTHER DISMISS THE SUIT OF
LTHE PLAINTIFFS IN THE INTEREST OF JUSTICE AND EQUITY.
IN RSA NO.7221/2013
BETWEEN
1. MAINABAI W/O. APPARAO MANE,
AGED ABOUT 63 YEARS,
R/AT MAHIBOOBSUBHANI KATTA,
JAIL ROAD, BIJAPUR
2. KISHOR S/O. APPARAO MANE,
AGED ABOUT 36 YEARS,
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
R/AT MAHIBOOBSUBHANI KATTA,
JAIL ROAD, BIJAPUR.
3. ANAND S/O. APPARAO MANE,
AGED ABOUT 29 YEARS,
R/AT MAHIBOOBSUBHANI KATTA,
JAIL ROAD, BIJAPUR.
...APPELLANTS
(BY SRI. SUBODH T. DHARWADKAR & SUDARSHAN M. ADVOCATES)
AND:
1. VIJAY S/O. RATAN CHOUDHARI
AGED ABOUT 52 YEARS,
R/AT SHAHAPUR AGASI,
PATEL GALLI, BIJAPUR.
2. UMESH S/O. RATAN CHOUDHARI,
(SINCE DECEASED BY LRS)
2a. RANI W/O. UMESH CHOUDHARI,
AGE: 42 YEARS,
OCC: HOUSE HOLD WORK,
R/O. SHAHAPUR AGASI,
GAVALI GALLI, VIJAYAPURA.
2b. SUNITA SATISH KALAL,
AGE: 24 YEARS,
OCC: HOUSE HOLD WORK,
R/O. SHIVAJIPETH MALI WADA
TQ: JATH, DIST: SANGLI,
MAHARASHTRA
PIN - 416404.
2c. ANITA KESHAVA JORAPUR,
AGE: 23 YEASR, OCC: HOUSE HOLD WORK,
R/O. H.NO.288/1/13,
LAXMI BADAWANE,
GOKAK, DIST: BELAGAVI,
KARNATAKA, PIN - 591307.
2d. NANDINI RAJU PASALAKAR,
AGE: 25 YEARS, OCC: HOUSE HOLD WORK,
R/O. KALAL GALLI, BAILHONGAL RURAL,
BAILHONGAL, SAMPAGAON,
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
BELAGAVI DISTRICT
PIN - 591102.
2e. RUTIK UMESH CHOUDHARI,
AGE: 14 YEARS, OCC: STUDENT BY
M/G. RANI W/O. UMESH CHOUDHARI,
AGE: 42 YEARS,
OCC: HOUSE HOLD WORK,
R/O. SHAHPUR AGASI, PATEL GALLI,
VIJAYPUR- 586101.
2f. MONIKA UMESH CHOUDHARI,
AGE: 24 YEARS, OCC: STUDENT,
C/O. RANI W/O. UMESH CHOUDHARI,
R/O: SHAHAPUR AGASI, PATEL GALLI,
VIJAYAPURA - 586101.
3. GAJANAN S/O. RATAN CHOUDHARI,
AGE: 46 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI, PATEL GALLI,
BIJAPUR-586101.
4. AKASH S/O. RATAN CHOUDHARI,
AGE: 36 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI,
PATEL GALLI,
BIJAPUR-586101.
5. PRAKASH S/O. RATAN CHOUDHARI,
AGE: 33 YEARS,
OCC: BUSINESS & AGRICULTURE,
R/O: SHAHAPUR AGASI,
PATEL GALLI,
BIJAPUR - 586101.
6. THE BIJAPUR LIBERAL DISTRICT
EDUCATION ASSOCIATION,
SOLAPUR ROAD, BIJAPUR,
REPRESENTED BY ITS CHAIRMAN
7. RAMESH S/O. BHIMSET MANE
(SICNE DECEASED BY LRS)
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
7a. SMT. ANITA W/O. RAMESH MANE,
AGE: 49 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MODERN BREACH CANDY APARTMENT,
VAIBHAV BUILDING, 2ND FLOOR,
'B' BLOCK, WARDEN ROAD,
BULABAI DESAI ROAD,
MUMBAI - 400026.
7b. MISS AMRITA D/O. RAMESH MANE,
AGE: 19 YEASR, OCC: STUDENT,
R/O: MODERN BREACH CANDY APARTMENT,
VAIBHAV BUILDING, 2ND FLOOR,
'B' BLOCK, WARDEN ROAD,
BULABAI DESAI ROAD,
MUMBAI - 400026.
7c. HRITHIK S/O. RAMEHS MANE,
AGE: 10 YEARS, OCC: STUDENT,
BY M/G SMT. ANITA W/O. RAMESH MANE,
AGE: 49 YEARS, OCC: HOUSE HOLD WORK
R/O. MODERN BREACH CANDY APARTMENT,
VAIBHAV BUILDING, 2ND FLOOR,
'B' BLOCK, WARDEN ROAD,
BULABAI DESAI ROAD,
MUMBAI - 400026.
7d. HRITHIKA D/O RAMESH MANE,
AGE: 10 YEARS, OCC: SUDENT,
BY M/G. SMT. ANITA W/O. RAMESH MANE
AGE: 49 YEARS, OCC: HOUSE HOLD WORK
R/O. MODERN BREACH CANDY APARTMENT,
VAIBHAV BUILDING, 2ND FLOOR,
'B' BLOCK, WARDEN ROAD,
BULABAI DESAI ROAD,
MUMBAI - 400026.
7e. SMT. SUNDRABAI W/O. BHIMASEN MANE,
SINCE DECEASED BY L.R.S 7(a) TO 7(d)
8. ANITA W/O. RAMESH MANE,
AGE: 37 YEARS,
R/O: HOTEL RAJKAMAL, KHETWADI,
14TH STREET, GRANT ROAD,
NEAR PETROL BUNK,
MUMBAI-400001.
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NC: 2024:KHC-K:8437
RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
9. VINAYAK S/O. PRALHAD MANE,
AGE: 27 YEARS,
R/O: JORAPUR PETH,
BABLESHWAR NAKA,
VIJAYAPURA.
10. ASHOK S/O. APPARAO MANE,
AGE: 33 YEARS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
BIJAPUR -586101.
11. SANTOSH S/O. APPARAO MANE,
AGE: 27 YEARS,
R/O: MAHIBOOBSUBHANI KATTA,
JAIL ROAD,
BIJAPUR - 586101.
...RESPONDENTS
(BY SRI. G.V. CHANDRASHEKAR, SENIOR COUNSEL FOR SRI.
DEEPAK V. BARAD, ADVOCATE FOR R-1, R3 AND R-5;
SRI. M.B. NARAGUND, SENIOR COUNSEL FOR SRI. S.B. PATIL,
ADVOCATE FOR R2 (A) TO R2 (F); R6-SERVED;
SRI. S.S. SAJJANSHETTY, ADVOCATE FOR R7 (A) TO (E), R8 & R9;
R10 AND R11 ARE SERVED)
THIS RSA FILED U/S. 100 OF THE CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGEMENT AND DECREE DATED
14.03.2013 PASSED BY THE FAST TRACK COURT-II, BIJAPUR
ALLOWING R.A.NO.77/2012 AND DISMISSING THE CROSS
OBJECTIONS OF THE APPELLANT HEREIN AND THEREBY SETTING
ASIDE THE JUDGMENT AND DECREE DATED 30.03.2012 PASSED BY
THE II ADDL. CIVIL JUDGE (SR.DIV) VIJYAPURA IN
O.S.NO.166/2005, WITH COST THROUGH OUT AND FURTHER
DISMISS THE SUIT OF THE PLAINTIFFS IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RSA No. 7216 of 2013
C/W RSA No. 7221 of 2013
ORAL JUDGMENT
RSA.No.7216/2013 is arising from divergent findings in
a suit for declaration and injunction and this appeal is filed
by defendant No.1.
2. Defendant No.1 though had the benefit of decree
of dismissal of the entire suit in his favour, challenged the
finding on issues No.3 and 4. Issue No.3 is an issue relating
to limitation and issue No.4 is relating to the payment of
Court fees and valuation of the property. These two issues
have been answered against defendant No.1.
3. Aggrieved by the dismissal of the suit, plaintiffs
filed R.A.No.77/2012 on the file of Fast Track Court, Bijapur
and in the said appeal, defendant No.1 filed cross-objection
challenging the adverse finding on issues Nos.3 and 4. In
terms of the impugned judgment and decree dated
14.03.2013, the Fast Track Court-I at Bijapur allowed the
appeal and consequently, set aside the judgment and decree
passed by the Trial Court and decreed the suit in-part. The
Cross-Objection filed by defendants No.1, 5, 6 and 8 is
dismissed.
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4. Aggrieved by the dismissal of cross-objection as
well as the decree in favour of the plaintiffs, the present
appeal in RSA.No.7221/2013 is filed by defendants No.5, 6
and 8 challenging the very same judgment in
R.A.No.77/2012 allowing the appeal in-part.
5. It is relevant to note that the cross-objection filed
by defendants No.1, 5, 6 and 8 is dismissed. This Court
would clarify that cross-objection was not required as
defendant No.1 had the benefit of dismissal of the suit in its
entirety and the finding on issues on Nos.3 and 4 could have
been contested without filing the cross-objection. Thus, this
Court is of the view that dismissal of cross-objection would
not come in the way of present appellants arising all the
contentions relating to the finding on issues which have gone
against the appellants.
6. As already noticed, suit filed by the plaintiffs was
dismissed and later appeal was allowed-in-part and the
decree is passed by the Trial Court was set aside and suit
was decreed-in-part.
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7. This appeal was admitted on 03.03.2023 to
answer the following substantial questions of law.
(i) Whether the First Appellate Court is justified in
reversing the judgment of the dismissal of the
suit by the Trial Court on the ground that ME
No.4111 was behind the back of the plaintiff
and failing to note that in view of the
admission made, the plaintiffs were estopped
from questioning the possession?
(ii) Whether the First Appellate Court had no
pecuniary jurisdiction to entertain the appeal
as the valuation of the suit was erroneous?
(iii) Whether the First Appellate Court failed to note
that the plaintiffs had waived their rights by
consenting for certification of the mutation
entry No.4111?
(iv) Whether the Courts below erred in properly
construing the scope of the Article 58 of the
Limitation Act, 1963?
8. The appeal was heard on various dates and on
05.09.2024, this Court felt that one more substantial
question of law was required to be framed and accordingly,
following substantial question of law was framed.
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NC: 2024:KHC-K:8437
"Whether plaintiffs establish the title and
possession over the suit schedule property"
9. Thereafter, case was adjourned to address the
arguments on the additional substantial question of law
framed by this Court.
10. Thereafter, the respondents/plaintiffs have filed
three applications. An application is filed invoking Order XLI
Rule 27 of Code of Civil Procedure (for short 'Code') seeking
leave to produce 7 documents. One more application is filed
under Order XVI Rule 6 of the Code to summon the original
records of the documents, which are now produced in the
form of certified copies along with an application for
production of additional documents. One more application is
filed invoking order VII Rule 7 of the Code to modify the
relief.
11. Heard Sri D.P.Ambekar, learned counsel for the
appellant/defendant No.1 and Sri. Subodh T. Dharwadkar,
learned counsel appearing for respondents/defendant No.5, 6
and 8. Sri G.V. Chandrashekhar, the learned Senior Counsel
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for the plaintiff/respondents and Sri. M.B. Naragund learned
Senior Counsel on behalf of Sri.S.B.Patil, the learned counsel
for respondents No.2(A) to 2(F).
12. Sri. D.P. Ambekar and Sri Madhukar Deshpande
and Sri. Subodh T. Dharwadkar, strongly opposed the
aforementioned applications on the premise that these
applications cannot be entertained at this stage. It is also
urged by them that the documents sought to be produced in
the said applications are not relevant for adjudication of the
case on hand. As far as the application to summon the
original records, it is contended that there is no need to
summon the original records as the documents sought to be
produced are not necessary for adjudication of the case and
as far as the application seeking a prayer to mould the relief
is concerned, it is urged that the relief cannot be moulded to
the extent in which it is prayed to be moulded in the
application, without there being a prayer to amend the
application.
13. As against this, Sri G.V.Chandrashekhar, learned
Senior Counsel appearing for the plaintiffs/respondents
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would contend that the documents sought to be produced
are all public records and documents are the certified copies
of the public records and those documents pertaining to the
suit properties and the said documents are the documents
originated at the request of contesting appellant in this case,
who wanted the lands to be acquired in its favour in exercise
of power under the provisions of Land Acquisition Act, 1894.
It is urged that these documents were not within the
knowledge of contesting plaintiffs/respondents and the
appellant has suppressed these documents and these
documents are necessary for adjudication of the case on
hand.
14. Sri M.B.Naragund, learned Senior counsel
appearing for the respondent No.2(a) would support the
contentions of the plaintiffs and would urge that documents
are necessary for adjudication of the case on hand.
15. This Court has considered the contentions raised
at the bar and after considering the contentions and after
going through the records, this Court is of the view that the
following points need to be framed:
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(i) Whether the plaintiffs have made out a
ground for the production of additional
documents?
(ii) Whether the plaintiffs have made out a
ground for summoning the documents?
(iii) Whether the plaintiffs have made out a
ground for moulding the relief?
16. Admittedly, the dispute in this case concerns Sy.
No.106 of Bhutnal village, Tq:Bijapur. Originally, the
property is measured as 21-Acres 15-Guntas.
17. On 08.11.1983, the property measuring 7 acres
in Sy.No.106 was sold by the mother of the plaintiffs namely
Laxmibai to the mother of defendants No.2 to 9.
18. Based on the sale deed, there was a mutation at
M.E.No.1876 which was certified on 12.11.1983 and
thereafter, Laxmibai sold 7-Acres to one Suresh S/o
Gurulingappa Gachchinakatti under a registered sale deed
dated 16.02.1984. After the said sale, the property is
numbered as Sy. No.106/1B. It is stated by the plaintiffs
that said property is abutting the property sold on
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08.11.1983. It is also forthcoming from the records that the
present appellant in R.S.A.No.7216/2013 made a claim for
the acquisition of a portion of Sy. No.106 and the application
was considered and the competent authority deemed it
appropriate to acquire the land. However, only 7 acres of
land in the middle portion of Sy.No.106 was acquired and
possession was handed over to the appellant. The northern
portion of Sy. No.106 remained with its original owners.
19. It is also relevant to note that on an application
filed by the appellant in R.S.A.No.7216/2013, 7 acres of land
in Sy. No.106 in the middle portion was acquired and the
appellant was put in possession of the property. The attempt
of the appellant to acquire the remaining portion was not
successful as there was a challenge to the acquisition
proceeding. The acquisition proceeding was quashed. As far
as the attempt to acquire the southern portion is concerned,
the owners of the southern portion requested to drop the
proceeding before the authority and the authority dropped
the proceedings.
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20. After going through the records placed before this
Court and after going through the contentions raised at the
bar, this Court is of the view that the dispute is relating to
1-acre 8-guntas of land which according to the plaintiffs is
sought to be encroached by the adjoining owner i.e.,
appellant-defendant No.1.
21. The appellant-defendant No.1 has taken a
contention that it has not encroached any portion of the land
of the plaintiffs, on the other hand, that 1-acre 8-Guntas of
land, which is now in dispute, is in the possession of
defendants No.2 to 9, who are occupying the southernmost
portion in Sy. No.106.
22. It is the contention of the appellant that after
having purchased 7 acres of land in the southern portion,
defendants No.2 to 9 are in possession of 1 acre 8-Guntas in
excess, abutting the northern portion of the land purchased
by them. Thus, it is urged that the remedy for the plaintiffs,
if any, is to seek possession of 1-acre 8-guntas of land which
according to the appellant, is in the possession of defendants
No.2 to 9.
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23. Defendants No.2 and 3 on the other hand
contended that apart from purchasing 7-Acres of land on
08.11.1983, they wanted to acquire additional 1-Acre
8-Guntas of land. It is the contention of defendants No.2 and
3 that plaintiffs have sold 1-acre 8-guntas of land to the
father of defendant No.5 and they are in possession of the
same.
24. The essence of the controversy is whether there
is any encroachment of 1 acre and 8 guntas of land in Sy.
No.106. If so, whether any of the defendants has encroached
on any portion of the property of the plaintiffs.
25. This Court has noticed that the documents which
are now sought to be produced are the public records
pertaining to the acquisition proceedings of Sy. No.106.
7 Acres in the said property are acquired at the instance of
1st defendant. Now it is urged that the appellant has excess
land. The appellant has disputed the said allegation. On the
other hand, some of the defendants claim to be in
possession of excess land which contention the plaintiffs are
disputing.
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26. In the light of the contentions raised by the
parties to the proceedings, this Court is of the view that the
documents relating to the acquisition of land bearing
Sy. No.106 to the extent of 7 acres prima facie appears to be
relevant. And said documents may require to be considered.
Said documents are produced before this Court and not
before the Trial Court. Hence, the said documents cannot be
straight away read in evidence. The defendants must be
provided the opportunity to lead rebuttal evidence in case
such documents are admitted in evidence.
27. The suit is of the year 2005 and the documents
as already noticed are public records. The appellants need to
be given an opportunity to lead rebuttal evidence if such
documents are found to be relevant for the adjudication of
the case on hand.
28. The suit is of the year 2005 and almost 19 years
have elapsed. This Court is of the view that the matter be
remitted to the First Appellate Court instead of the Trial
Court to enable the parties to lead evidence on their
respective claims.
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29. For the aforementioned reasons without
expressing anything on the merits of the claim of either of
the parties, the impugned judgment and decree are to be set
aside and the matter is to be remitted to the First Appellate
Court.
30. As far as the documents to summon the original
records of the certified copy which are already produced
before this Court, there is no need to summon the said
documents unless it is urged that the certified copies do not
match with the original. The said application filed under
Order XVI Rule 6 may be considered if such recourse is found
to be required.
31. As far as the prayer to mould the relief is
concerned it does not arise for consideration as the matter is
not decided on the merits, the matter is remitted to the First
Appellate Court for fresh consideration.
32. It is further made clear that this Court has not
expressed any opinion on the admissibility and relevancy of
the documents which are sought to be produced. The finding
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on the said documents is only a prima facie finding and the
question of admissibility and relevancy is kept open to be
decided by the First Appellate Court
33. If the documents are admitted, the defendants
shall be allowed to lead rebuttal evidence.
34. Since nothing is expressed on the merits of the
matter, all contentions are kept open.
35. Parties shall appear before the First Appellate
Court on 16.12.2024 without awaiting further notice.
36. Registry to send the records to the First Appellate
Court.
37. Parties shall co-operate for the early disposal of
the matter.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
AM - para 1-20
GVP - para 21 to end
CT:ANB
