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2010 DIGILAW 687 (KAR)

Uma v. N. V. Rajachari

2010-06-07

A.N.VENUGOPALA GOWDA

body2010
JUDGMENT :- (This MSA is filed under Order 43 Rule 1(u) of CPC against the Judgment and Decree dated 7.11.2006 passed in RA.No.93/2003 on the file of the Prl. Civil Judge (SR.DN) and JMFC., Srirangapatna, allowing the appeal and setting aside the judgment and decree dated 29.10.2003 passed in O.S.No.263/1999 on the file of the Civil Judge (SR.DN) & JMFC., Pandavapura.) This Misc. Second Appeal is by the plaintiffs, in a suit for declaration of title with a consequential relief of permanent injunction against the defendant, in respect of the suit property bearing Municipal Katha No. 811/780, measuring East-West 60 feet and North-South 4 feet, situated at Hooveenabeedi of Pandavapura Town. 2. Plaintiff’s case in a nut shell is that, 2nd Plaintiff purchased the suit property and the remaining portion situated on its southern side, totally measuring East-West 60 feet and North-South 36 feet, under a registered sale deed dated 10.5.1984, from Shalia Sab and others and since then, they are in actual possession and enjoyment of the suit property as absolute owners, wherein they are having a residential house on the western side. Under a family arrangement, the property is mutated in the name of plaintiff No. 1. The defendant is owning the property towards northern side of the suit property and that the brother of the defendant also owns a property on the western side and that property measures East-West 42-1/2 feet and North-South 11 feet. Though the property of the defendant has the said measurement, he has illegality got entered its extent as 14 feet in the Municipal records, in collusion with the officials, on the basis of which, permission for construction was obtained and an attempt was made to put up construction over the suit property. The plaintiffs challenged the issue of building licence before the appellate authority and since the defendant persisted to put up construction and interfere with the possession and enjoyment of the suit property by the plaintiffs, the suit was instituted for the said reliefs. 3. The defendant has passed away. His L.Rs., have been brought on record. They filed written statement, denying the right, title and possession of the plaintiffs over the suit property. They denied the measurement and boundaries of the property, as stated by the plaintiffs. They denied that, the deceased defendant had got entered excess measurement in the Municipal records. 3. The defendant has passed away. His L.Rs., have been brought on record. They filed written statement, denying the right, title and possession of the plaintiffs over the suit property. They denied the measurement and boundaries of the property, as stated by the plaintiffs. They denied that, the deceased defendant had got entered excess measurement in the Municipal records. According to them, though the property of the plaintiffs measure East-West 54 feet and North-South 32 feet, the plaintiffs illegally got entered excess measurement in their sale deed. They contend that, towards northern side of the property of the plaintiffs, they is a Municipal conservancy i.e., galli, which bifurcates the properties of the plaintiffs and defendant. It was stated that, the municipal authorities have made correct entries in the records as per the palupatti in respect of the property owned by the defendant. 4. Based on the pleadings of the parties, the learned trial Judge raised the following issues: (i) Whether the plaintiffs prove that the 2nd plaintiff is the absolute owner in possession of the suit schedule property? (ii) Whether the defendant proves that the plaintiff has furnished wrong boundaries and measurement in the suit schedule? (iii) Whether the alleged interference is true? (iv) What order or decree? 5. For the plaintiff’s, PWs 1 to 3 deposed, through whom, Exs.P1 to P7 were marked. For the L.Rs. of the defendant, DWs.1 to 3 deposed and Exs.D1 to D8 were marked. Keeping in view the rival contentions, after appreciation of the evidence, the learned trial Judge answered issue nos. 1 and 3, in the affirmative and issue no.2, in the negative and as a result decreed the suit. 6. The judgment/decree passed by the trial Court was questioned by the L.Rs. Keeping in view the rival contentions, after appreciation of the evidence, the learned trial Judge answered issue nos. 1 and 3, in the affirmative and issue no.2, in the negative and as a result decreed the suit. 6. The judgment/decree passed by the trial Court was questioned by the L.Rs. of the defendant, in a first appeal, inter-alia contending that, plaintiff No.2 has got mentioned excess measurement in the sale deed than the actual area shown in the municipal records; the Trial Court erred in not relying upon Exs.D1 to D8, so as to dismiss the suit; the Trial Court lost sight of the fact that the revision petition filed by the defendant against the order passed by the municipal appellate authority was pending as on the date the judgment in the suit was pronounced; the Trial Court erred in not observing that the municipal authorities have effected entries on the basis of actual measurements in respect of the property of the defendants; the Trial Court erred in not relying upon palupatti dated 17.9.1991 and the learned trial Judge has not correctly appreciated the evidence of DW’s 1 to 3 and Exs.D1 to D3 and that the impugned judgment / decree is not in accordance with the settled principles of law, facts and probabilities of the case. 7. The first appellate Court having summoned the records, upon perusal of the same and upon hearing the learned counsel appearing for the parties, raised the following points for its consideration: (i) Whether the Trial Court erred in not observing that there is a dispute with regard to the measurements and the boundaries of the properties of both the parties? (ii) Whether the Trial Court erred in not noticing the fact of pendency of CRP, preferred by appellants against the order of Director of Municipal Administration? (iii) Whether the Trial Court erred in not framing proper issues? (iv) Whether the Trial Court erred in not properly appreciating the oral and documentary evidence of both the parties? (v) Are there any grounds to interfere in the reasoning and findings of the Trial Court? (vi) What Order? 8. (iii) Whether the Trial Court erred in not framing proper issues? (iv) Whether the Trial Court erred in not properly appreciating the oral and documentary evidence of both the parties? (v) Are there any grounds to interfere in the reasoning and findings of the Trial Court? (vi) What Order? 8. After making a brief reference to the respective cases of the parties and the evidence, it has held that:- (1) The Trial Court has erred in not raising proper issues, in that, material issue which ought to have been raised, casting burden on the defendant with regard to the existence of galli, has been left out; (2) Though the plaintiffs are certain enough to contend that their property measures East-West 60 feet and North-South 36 feet, they have not produced the municipal extract of the said property, standing in the name of their vendors; (3) The plaintiffs have not challenged the entry as per Ex.P5 – municipal extract, which shows the measurement of the plaintiffs’ property as 54 feet x 32 feet; (4) The Trial Court has not properly appreciated the crucial points involved in the case and grossly erred in not properly appreciating the oral and documentary evidence of both the parties. It has concluded that, the matter is a fit case wherein an order of remand could be passed to enable the Trial Court to raise an additional issue as observed in the judgment and to give reasonable opportunity to both the parties to produce additional evidence and then dispose of the matter afresh in accordance with law. The appeal was allowed, the judgment/decree of the Trial Court under challenge was set aside and the suit was remitted to the Trial Court. 9. Sri K.V.Narasimhan, learned counsel appearing for the appellants by making reference to the impugned judgment, would contend that, the learned Judge of the Court below has improperly pressed into service R.25 of O.41 CPC, without understanding its true scope and ambit and that, there is breach of the provisions contained under Rs.23, 23-A and 25 of O.41 CPC. 10. 9. Sri K.V.Narasimhan, learned counsel appearing for the appellants by making reference to the impugned judgment, would contend that, the learned Judge of the Court below has improperly pressed into service R.25 of O.41 CPC, without understanding its true scope and ambit and that, there is breach of the provisions contained under Rs.23, 23-A and 25 of O.41 CPC. 10. In response, Sri Vishwajith Shetty, learned counsel appearing for the respondents, contended that, in view the facts, circumstances and record of the case, since the learned trial Judge had not raised proper issues and had not correctly appreciated the crucial points involved in the case and since there was withholding of material evidence by the plaintiffs, the only course which is available has been adopted by the Court below and hence no interference is called for. 11. In view of the rival contentions and the record, the point for consideration is; “In passing the impugned order of remand, whether the Court has breached the provisions contained under O.41 25 CPC?” 12. It is well settled position of law that, in a suit as well as in first appeal, all disputed facts are open for decision. A point of fact is not to be decided in a second appeal under S. 100 CPC, where only a substantial question of law is to be looked into and if the impugned judgments have given rise to a substantial question of law, the second appeal can be maintained. 13. O.41 R.23 CPC, when perused, it is clear that the same would be applicable when a decree has been passed by the Trial Court on a preliminary issue. When an appeal is preferred and when the appellate Court disagrees with the findings of the Trial Court on such preliminary issue and when the decree under challenge is to be reversed in appeal, the appellate court, if considers it necessary, remand the case, since the Trial Court may not have recorded the evidence on merits of the suit and has also not recorded findings on all the issues, which arise for consideration in the suit. 14. Before invoking the power of remand permissible under R.23 of O.41, the conditions precedent laid down therein, must be satisfied. 14. Before invoking the power of remand permissible under R.23 of O.41, the conditions precedent laid down therein, must be satisfied. Time and again, the Apex Court and this Court have held that, the first appellate Court should be loathe to exercise its power conferred under R.23 of O.41 of CPC and an order of remand should not be passed routinely. An unwarranted order of remand gives the litigation an underserved lease of life and therefore must be avoided. 15. O.41 R.23-A CPC is not attracted to the instant case, since the Court below has not arrived at a finding that a re-trial is necessary. 16. O.41 R.25 CPC, stipulates that, if it appears to the appellate court that any fact essential for decision in the suit has to be determined, it could frame an issue on the point and try the same by itself or refer the same for trial to the Court from whose decree the appeal is preferred and in such a case, shall direct such Court to take additional evidence required. The first appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. 17. A reading of the impugned judgment of the Court below and its findings noticed supra, makes it clear that, according to it, the Trial Court did not raise a material issue, the plaintiffs did not produce the municipal extract standing in the name of the vendors in respect of the suit property, plaintiffs have not challenged the entry as per Ex.P5 – Municipal extract, which shows the measurement of the property as 54 feet x 32 feet and that, there is no proper appreciation of the crucial point involved in the case. Merely because an issue has not been raised by the Trial Court or that the evidence on record has not been properly appreciated, the first appellate Court cannot resort to an open order of remand. The validity of remand order has to be tested by reference to R.25 of O.41, which mandates that, the first appellate Court, may, if necessary, frame the issues and refer the same to the Trial Court, which indicates that, there is no compulsion on the part of the appellate Court to do so. Such a course can be adopted where the first appellate Court has no facility to record the oral evidence by itself. Such a course can be adopted where the first appellate Court has no facility to record the oral evidence by itself. The first appellate Court, in order to avoid delay, upon raising additional issue, if called for, shall record the evidence by itself and then proceed to dispose of the appeal in accordance with law. 18. In the case of SHANTHAVEERAPPA VS. K.N. JANARDHANACHARI – ILR 2007 KAR 1127, the facts that fell for consideration were the, plaintiff filed a suit for declaration of title and for permanent injunction, which was contested by the defendant. Ultimately the suit was decreed in part, declaring the plaintiff to be the owner of three items of the suit property. A decree of permanent injunction was granted in respect of the said items of property. Plaintiff filed first appeal, in which, he filed an application under O.41 R.27 CPC for production of additional evidence – 28 documents, which was objected to by the defendants. The first appellate Court heard the appeal on merits and also the applications filed under O.41 R.27 CPC. After setting out the facts of the case, issues and the point for consideration, it declined to go into the merits of judgment and decree of the Trial Court. It held that the application filed by the plaintiff for production of additional evidence is required to be allowed and as a result, set aside the entire judgment and decree and remanded the matter to the Trial Court for fresh consideration in accordance with law. The said order was challenged in the second appeal. After making reference to the provisions contained under Rs.23, 23-A, 27, 28 and 29 of O.41 CPC and taking into consideration the powers of the appellate Court and noticing the perfunctory manner in which the appellate Courts are not appreciating the said provisions in proper prospective, it has been held as follows; “Though the first appellate Courts are vested with this unlimited power, greater the power, greater should be the care and caution which should be exercised by the appellate Court in exercise of such power. Especially the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first appellate Court to decide the case on merits finally. Especially the power of remand should be exercised sparingly and in rare cases. An unjustified remand is tantamount to abdication of duty by the first appellate Court to decide the case on merits finally. Where the Trial Courts are over burdened with the cases, the first appellate Courts which are better placed and presided over by Judges with greater experience, should take upon themselves the responsibility of recording evidence and decide the case on merits, thus shortening the length of litigation. That is the need of the hour. Today the litigant, the society and the judicial system cannot afford the luxury of the order of remand. Therefore, it is impressed upon the first appellate Courts, that they would be doing a great service in the course of fight against delay in disposal of cases, by accepting the challenge, exercise their appellate power judiciously, receive and record additional evidence and decide the cases finally. They should avoid this temptation of remand on some pretext or other. They should demonstrate their resolve to shoulder responsibility and commitment in rendering justice to the litigant who is knocking at the door of temple of justice patiently in anticipation of a just decision. Judges should decide the lis. This would be one of the ways of not only reducing the delay in disposal of cases, but also avoiding docket explosion, within the existing legal frame work.” (Emphasis supplied) 19. Even though, the registry of this Court circulated a copy of the judgment to all the appellate Courts in the State for guidance and the judgment is also reported in the law journals, the appellate Courts still continue to commit the breach of the provisions noticed supra. The appellate Courts are not appreciating the said provisions in the correct prospective and are still resorting to the unnecessary remands. The instant case is not in any way different. The Trial Court did not dispose of the suit upon a preliminary point. The suit was decided by recording finding on all the issues. By its appellate judgment under appeal herein, the Court below has recorded its findings on some of the points and then has made the observations leaving them to be tried and answered by the Trial Court. The Trial Court did not dispose of the suit upon a preliminary point. The suit was decided by recording finding on all the issues. By its appellate judgment under appeal herein, the Court below has recorded its findings on some of the points and then has made the observations leaving them to be tried and answered by the Trial Court. If the plaintiffs have not produced relevant evidence or the Trial Court has not correctly appreciated the evidence, it is for the appellate Court to do its duties, keeping in view the provisions under Rs.25, 27, 29 and 31 of O.41 CPC. The contention advanced by the learned counsel for the appellants is well founded. 20. Therefore, I am of the opinion that the impugned judgment cannot be sustained and hence I pass the following; ORDER 1. The appeal is allowed and the judgment/order of remand passed in R.A. NO. 93/2003 dated 7.11.2006 by Prl. Civil Judge (SR.DN) and JMFC., Srirangapatna, stands hereby set aside. 2. R.A.No.93/2003 stands restored to the file of Prl. Civil Judge (SR.DN) and JMFC., Srirangapatna, for consideration in accordance with law. 3. It is made clear that, if the appellate Court is of the opinion that a material issue has not been raised and the evidence on record is insufficient to decide the issue, in that event, it shall raise additional issue, record the additional evidence, if any, without remitting the matter to the Trial Court and decide the case. 4. The case of both the parties is kept open for consideration on all aspects. 5. The parties are hereby directed to appear before the Court below on 5.7.2010 and receive further orders. 6. The Court below shall expedite the disposal of the appeal and decide the same at the earliest. 7. No costs.