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Karnataka High Court · body

2015 DIGILAW 1366 (KAR)

PREMANATH KAKDE v. AMARNATH

2015-12-18

K.N.PHANEENDRA

body2015
JUDGEMENT 1. The defendant/appellant herein has called in question the judgment and decree of the Trial Court passed in OS No.829/2006 dated 23rd June 2014 by the XLIII Addl. City Civil and Sessions Judge, CCH 44, Bangalore. 2. The ranks of the parties is referred to as per their ranks before the Trial Court. 3. The main contention of the learned counsel for the defendant/ appellant as per the arguments is that, the defendant countering the plaintiff’s case, has also explained his case as to how he acquired the suit schedule property and how he has become the owner of the suit schedule property and also, how the plaintiff has wrongfully made some construction in the suit schedule property and how the defendant is entitled for permanent injunction and also for Mandatory injunction. It is also contended by the learned counsel for the appellant that the Trial Court though framed several issues casting burdon on the plaintiff and defendant, but has not whispered anything about the evidence both documentary and oral, tendered by the plaintiff and defendant and also not even discussed the pleadings of the parties whether those pleadings are proved by way of documentary and oral evidence. But in a very cryptic manner, the Trial Court has passed the judgment refusing to grant the relief to the plaintiff and the defendant as prayed by the parties. Therefore, he seeks the indulgence of this court either to allow the appeal in Toto or if the court comes to the conclusion that no reasons have been assigned by the Trial Court and no proper findings are given on the issues framed casting burden on the parties, then the matter has to be remitted to the Trial Court for fresh disposal not only with respect to the counter claim of the defendant, but also to the findings on the issues framed casting burden on the plaintiff which are inter connected with the defendant’s case, otherwise affect the case of the defendant. 4. The respondent/(plaintiff) was issued with a notice by this court, but he remained absent even after due service of notice. 5. On looking to the pleadings of the parties, the following are the brief facts of the plaintiff’s case: 5.1 The plaintiff and defendant are brothers. 4. The respondent/(plaintiff) was issued with a notice by this court, but he remained absent even after due service of notice. 5. On looking to the pleadings of the parties, the following are the brief facts of the plaintiff’s case: 5.1 The plaintiff and defendant are brothers. Their father Sri K.R. Swami Rao acquired property bearing No.23, new No.72, 4th cross, Hanumanthappa Block, Sulthanpalya Bengaluru, which is described as suit schedule property. In the front portion of the said property, measuring 30 x 30 feet, a two floors building was constructed. On the ground and first floor, a common passage of 4.5 feet is left on the right side portion of the building. It is the further case of the plaintiff that his father Sri.K.R. Swami Rao executed a registered Will dated 21.2.1986 bequeathing the ground floor in favour of the plaintiff and first floor in favour of the defendant but the open space was not made as part of the bequeath. The plaintiff claims that this common passage in the hind portion is the common property of the family members of K.R. Swami Rao. In addition to this Will, the defendant also got a sale deed from his father, in respect of the portion which was bequeathed to him. The said K.R.Swami Rao died on 3.5.1987 leaving behind his two sons and daughters including the plaintiff, and defendant. After the death of K.R.Swami Rao, the plaintiff got the shares of his three brothers through a release deed in his favour, releasing all the shares in the hind portion of the schedule property. Therefore, he states that the defendant is only entitled for 1/7th share in the hind portion of the schedule property. 6. In this background, it is further alleged that the plaintiff filed a suit in OS No.746/1998 on the file of the City Civil Court at Bangalore for declaration of his title and for other reliefs. It is pleaded in the said suit that, the defendant has absolutely no manner of right, title and interest in the said hind portion of the suit schedule property except 1/7th undivided share. When the said suit was pending, there was a settlement on 19.12.1998 and a compromise petition was filed in the court. It is pleaded in the said suit that, the defendant has absolutely no manner of right, title and interest in the said hind portion of the suit schedule property except 1/7th undivided share. When the said suit was pending, there was a settlement on 19.12.1998 and a compromise petition was filed in the court. But the plaintiff says that he was not having any knowledge of the contents of the compromise petition but he believing the defendant and others, put his signature to the compromise petition. But the defendant has created the said document on the basis of such compromise the defendant started interfering with the possession of the plaintiff in the suit schedule. Therefore, after issuing notice to the defendant the suit was filed. 7. It is contended by the plaintiff that after securing and perusing the Compromise Petition filed in OS No.746/1998 on 13.02.1998, he came to know that the defendant by playing fraud acquired14 x 15 feet in the hind portion of the schedule property for which he is not legally entitled to. Therefore, the plaintiff challenged the said Compromise Petition as fraudulent and is not binding upon the plaintiff. It is further pleaded that the defendant on the basis of the said compromise, had put up second floor contrary to the conditions imposed by their father in the sale deed dated 6.10.1986. The said structure is illegal and has to be removed by the defendant. In spite of repeated requests and demands, the defendant did not desist himself from interfering with the plaintiff’s possession and enjoyment of the property. Therefore, he filed the present suit for the following reliefs: 1. To declare that the Compromise Petition dated 13.2.1998 in OS No.746/1998 is null and void and in the alternative declare that the Compromise Petition is not binding on the plaintiff. 2. Issue Mandatory injunction directing the defendant to pull down the structure constructed on the second floor of the schedule property at the cost of the defendant. 3. For permanent injunction and for such other reliefs as the court deem fit in the circumstances of the case. 8. The defendant appeared before the Trial court and contested the suit by filing the written statement. He denied the case of the plaintiff as pleaded, and taken a specific contention creating title of the property upon himself. 3. For permanent injunction and for such other reliefs as the court deem fit in the circumstances of the case. 8. The defendant appeared before the Trial court and contested the suit by filing the written statement. He denied the case of the plaintiff as pleaded, and taken a specific contention creating title of the property upon himself. It is the case of the defendant that, suit schedule property is not the property of his father Sri K.R. Swami Rao, it is the property of the defendant, he has purchased the entire site on 10.4.1978 from his own funds and borrowing an amount of Rs.6,000/from Sri Narayan Rao. It is also the case of the defendant that he has constructed the building at his cost measuring 30 x 30’ spending an amount of Rs.47,624/. It is denied that there is any common passage of 4.5 feet on the right portion of the building. He further stated that he constructed the first floor out of his own funds. There was no occasion for his father, Sri. K.R. Swami Rao to execute any Will as he was not the owner of the site or the building. Hence, the said Will is illegal. The allegations of the plaintiff that, the ground floor being bequeathed in favour of the plaintiff under the said Will and the first floor is bequeathed in favour of the second defendant are all denied as false because the defendant has purchased the said property under a sale deed. No property belonged to Sri K.R. Swami Rao. It is the further case of the defendant/that after the death of Swami Rao, his other son’s (brothers of plaintiff and defendant) by name Venkatesh Rao, Shivaraman, Amarnath and Kiran son of Jagannath, have no share in any of the suit schedule property, therefore there was no occasion for them for releasing their shares in favour of the plaintiff. The alleged release deed dated 17.6.1987 is having no sanctity in the eye of law but created against the defendant. The defendant reiterated on several occasions that he is the absolute owner of the suit schedule property. 9. The alleged release deed dated 17.6.1987 is having no sanctity in the eye of law but created against the defendant. The defendant reiterated on several occasions that he is the absolute owner of the suit schedule property. 9. The defendant further claims that he has filed OS No.5091/1987 against the plaintiff for declaring that the Will dated 31.2.1986 as null and void which came into existence under suspicious, coercive circumstances and for declaring that the plaintiff is not entitled for any share in the suit Schedule property. On 21.2.1989, the defendant in OS No.5091/1987 has filed written statement. The suit was dismissed for non-prosecution since the plaintiff’s counsel failed to conduct the case properly. Filing of the suit by the defendant and his stand in the said suit has been completely suppressed by the plaintiff. 10. It is admitted that the plaintiff had filed a suit in OS No.746/1998, but the defendant denied that there is no question of entering into any compromise with regard to the suit schedule property by way of any compromise as the defendant is the absolute owner of the property. These facts were deliberately and willfully suppressed by the plaintiff in this case. 11. The defendant has filed the counter claim separately narrating how he has acquired the suit schedule property and he requested the Court for grant of permanent injunction restraining the plaintiff or any one claiming under him from interfering with the defendant’s peaceful possession and enjoyment of the entire suit schedule property. The Defendant also claimed, Mandatory injunction directing the plaintiff to pull down the structure constructed by plaintiff during 2004 marked at MQRONCF in the ground floor and the first floor during October 2005 at points marked as GR in the ground floor, the obstructing Wall 5’x3’x5’ and obstructing portion marked by letters ST steel grill gate constructed by plaintiff, and for issue of Mandatory injunction directing plaintiff to vacate the ground floor and first floor marked at AEMQPONCEKLDRSA. 12. The plaintiff has also filed his additional pleading countering the counter claim denying all the allegations made in the counter claim narrated at paragraphs 19 to 41 of the counter claim and also denying other averments and prayed for dismissal of the counter claim. 13. 12. The plaintiff has also filed his additional pleading countering the counter claim denying all the allegations made in the counter claim narrated at paragraphs 19 to 41 of the counter claim and also denying other averments and prayed for dismissal of the counter claim. 13. On the basis of the above said rival contentions, the Trial Court has framed the following issues: (1) Does the plaintiff prove that his father K.R.Swami Rao executed a Will in his favour and defendant’s favour? (2) Does the plaintiff prove that his 3 brothers viz., K.S. Venkatesh, K.S.Shivarama Rao, K.S. Jagannatha released their shares in the property in his favour? (3) Does the plaintiff prove that the defendant fraudulently induced him to sign on a compromise petition filed in O.S.No.746/1998, on the file of City Civil Court, Bangalore and therefore the compromise recorded in O.S. No.746/98 on 13/2/1998 is illegal and not binding on him? (4) Does the plaintiff prove that the defendant illegally constructed a structure in the 2nd floor? (5) Does the defendant prove that the suit is time barred? (6) Does the plaintiff entitled for the reliefs he has claimed in the plaint? (7) Does the defendant prove that he purchased a site from his earnings and resources and therefore he is the absolute owner of the suit property? (8) Does the defendant prove that the plaintiff constructed the structure in the ground and first floor during the year 2004 and 2005 as stated by him in the counter claim statement? (9) Does the defendant prove that the plaintiff has caused obstruction by constructing a wall and fixing a grill? (10) Does the defendant prove that he is entitled for the reliefs of permanent injunction and Mandatory Injunction as sought by way of counter claim? (11) What order or decree? 14. Issue Nos.1 to 4 and 6 are framed casting burden on the plaintiff. Issue Nos.5, 7 to 10 are framed casting burden on the defendant. Now, this court has to examine whether the Trial Court has given any reasons and findings on these issues in proper and correct manner or not, in compliance with the legal requirement. 15. 14. Issue Nos.1 to 4 and 6 are framed casting burden on the plaintiff. Issue Nos.5, 7 to 10 are framed casting burden on the defendant. Now, this court has to examine whether the Trial Court has given any reasons and findings on these issues in proper and correct manner or not, in compliance with the legal requirement. 15. Before adverting to the judgment of the Trial Court so far as it refers to the issues casting burden upon the parties, it is just and necessary to say here that the Trial Court has dismissed the suit of the plaintiff and also dismissed the counter claim of the defendant. 16. The learned counsel for the appellant submits before the court that the plaintiff has not filed any appeal against the judgment and decree passed by the Trial Court. 17. Before adverting to the observations made by the Trial Court on these issues, it is just and necessary for this court bear in mind as to, what constitute a Judgment under the provision of Order XX Rules 4 and 5 of CPC which Mandates as to how the courts have to pass the judgment. The said provision reads as under: Rule 4(1): Judgments of a court of small Causes need not contain more than the points for determination and the decision thereon. 4(2): Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reason for such decision. Rule 5: In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit. (Emphasis supplied.) 18. The above said provision clearly indicate that it is not only the findings of the court on each issue is necessary, but such finding shall be based on reasons. It goes without saying that reasons must be given on the basis of appreciation of facts (pleadings, documentary and oral evidence furnished by the parties to the suit) and Law involved. 19. In this regard it is appropriate to quote a decision reported in AIR 1985 SC 736 between M/s. Fomento Resorts and Hotels Ltd., VS. It goes without saying that reasons must be given on the basis of appreciation of facts (pleadings, documentary and oral evidence furnished by the parties to the suit) and Law involved. 19. In this regard it is appropriate to quote a decision reported in AIR 1985 SC 736 between M/s. Fomento Resorts and Hotels Ltd., VS. Gustavo Ranato Da Cruz Pinto and Others at paragraph 27, the Hon'ble Apex Court has reiterated the object of the above provisions, and observed that – “Where several contentions factual and legal are urged and when there is scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point.” 20. In another decision reported in AIR 2001 HIMACHALPRADESH 18 between Om prakash and others Vs. State of Himachal Pradesh and others wherein, the Hon'ble Court has observed that Order XX Rule 5 emphasizes as to how the judgment to be written and what should be the contents of the judgment. Basing on the decision, at paragraph 12 it is observed as follows: “In the present case, trial Court has framed all the issues and was supposed to give separate findings on each issue, as admittedly the findings upon any one or more of them are not sufficient for the decision of the suit. By simply enumerating the evidence and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a judgment and decree on the points in issue or controversy, is vitiated. It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation, it must comply the legal requirement under the provisions of Code of civil procedure. ( Emphasis supplied.) 21. It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation, it must comply the legal requirement under the provisions of Code of civil procedure. ( Emphasis supplied.) 21. Considering the particular facts of the case, the Hon'ble High Court of H.P has set aside the judgment and remanded the case to the Trial Court with a direction to decide the matter in accordance with law by giving findings on the issues separately with proper and cogent reasons. 22. Bearing in mind the above said rulings, now let me consider whether in this case, the Trial Court has given any reasons to arrive at a conclusion to dismiss the suit and as well as the Counter claim made by the defendant who paid the court fee. Admittedly, the defendant has taken up the plea countering the plaintiff’s case filed a detailed written statement claiming that he purchased the suit schedule property under a registered sale deed and he actually constructed the building in the entire suit schedule property and he has been in possession and enjoyment of the property and that the plaintiff has interfered with the defendant’s possession and made certain illegal constructions in the suit schedule property without any right. 22. In order to prove his case, the plaintiff examined himself as PW1 and 3 others as PWs.2 to 4 and got marked Exs.P1 to P10. The defendant in support of his Counter claim got examined himself as DW1 and another as witness DW2 and got marked Exs.D1 to D55. 23. As could be seen from Exs.D1 to Ex.D55 defendant has produced the Sale deed dated 6.10.1986, the plan for construction of the building, photographs, negatives, certified copy of the order passed in OS No.746/1998, Original Will, appointment letter, certified copy of the Will dated 21.2.1986, letter correspondence, certified copy of the plaint in OS No.5091/1987, copy of the complaint lodged by the parties to the police, bill issued by the plumber, salary certificate of the defendant, electricity bills, service certificate, tax paid receipts, legal notice issued to the plaintiff etc., The Oral evidence lead also shows that extensive evidence have been led by both the parties and parties were cross examined at length. Innumerable documents have been placed for the consideration of the court. Innumerable documents have been placed for the consideration of the court. Therefore, this court has to see whether these materials were properly considered by the Trial Court or not. In this background, the reasons given to answer issue Nos.1 to 10 have to be looked into. 24. As I have already narrated, burden is cast upon the plaintiff to prove issue Nos.1 to 4 and 6 and the burden to prove issue Nos.5, 7 to 10 is cast upon the defendant. While answering issues 1 to 10, the Trial Court has observed in the following manner: So far it relates to issue Nos. 1 to 4 and 6, the Trial Court has only observed that the plaintiff has filed his affidavit narrating their father executed a last registered Will dated 21.2.1986 bequeathing the ground floor to the plaintiff and first floor in favour of the defendant. PWs 2 to 4 are examined on the side of the plaintiff. In the cross examination of PWs. 1 to 4, nothing has been elicited. Hence, held issue No.1 as proved. Likewise, issue No’s. 2, 3 and 4 have also been answered in the same fashion without referring to the documentary evidence and oral evidence adduced by the parties and ultimately answering issue Nos. 1 and 2 in the Affirmative and issue Nos. 3 to 5 in the Negative, consequently dismissed the suit of the plaintiff. So far as issue Nos. 7 to 10 are concerned, the court has discussed the issues in the following manner. “The defendant has stated that he has purchased a site from the earnings and resources and he is the absolute owner of the suit property. It is pertinent to note that the defendant in his written statement as well as in his examination in chief, affidavit, has narrated in detail as to how he has earned the suit schedule property. It is strange to believe that out of his funds, he has purchased the suit property in the name of his father and moreover except the self serving testimony of the defendant, he has not produced any materials nor led any independent evidence in order to prove his case”. By stating so, in the above said paragraph in few lines, the court has answered issue No.7 in the ‘Negative’. 25. By stating so, in the above said paragraph in few lines, the court has answered issue No.7 in the ‘Negative’. 25. Issue No.8 is also answered in the similar manner giving one line reason stating that – “Except the self serving testimony of the defendant, defendant has not produced any materials nor led the evidence of any witnesses in order to prove that plaintiff has constructed ground floor and first floor during the year 2004 and 2005.” Hence, issue No.8 is answered in the ‘Negative’. Issue No.9 is also answered in a very cryptic manner stating that “In view of the findings on issue Nos.7 & 8, the defendant has failed to prove the case. Hence, issue No.9 is answered in the Negative”. By answering these issues, the Trial Court has refused to grant any relief sought for and answered Issue No.10 is the “Negative”. 26. The reasons given by the Trial Court at no stretch of imagination can be accepted as reasons as contemplated and understood by law. There is no explanation as to why the Trial Court has not ventured upon to refer the relevant pleadings, oral and documentary evidence produced by the defendant. No effort has been made by the trial court to know the contents of the documents produced by the defendant, as to whether they are relevant to the pleadings and oral evidence or not. No reference is also made to the pleadings, oral and documents evidence produced by the plaintiff. The trial Court not even touched the cross examination of the parties. 27. In my opinion the meaning that can be attributed to the word ‘reason’as used in Order XX Rule 5 should be “Use of the power of the Judicious mind to form opinion and Judgment or to reach a logical conclusion on applying law and appreciating the evidence”. 28. It is well settled principles of civil Jurisprudence that, the appreciation of the evidence means the court has to consider what exactly the evidence given by the parties in support of their pleadings and whether the said evidence is sufficient to prove the issues cast upon them. In order to come to such conclusion one has to look into the evidence of the parties and documents produced by them. But none of these aspects have been done by the Trial Court. In order to come to such conclusion one has to look into the evidence of the parties and documents produced by them. But none of these aspects have been done by the Trial Court. The learned judge has not applied his judicious mind to the pleadings, with reference to the oral and documentary evidence produced by the parties. The issues 1 to 10 have been answered without considering any oral and documentary evidence of the parties, in general and particularly in respect of the counter claim made by the defendant. The act of the trial court is contrary to the provisions of Civil Procedure Code under order XX rule 4 and 5. 29. It may be observed that, a Judgment does not mean mere conclusions. Every conclusion (findings on issues) has to be preceded by reasonings and analysis of both facts and law, on appreciation of relevant pleadings and evidence produced by the respective parties to the suit. 30. It can also be said that, in view of the contents of the provisions under the code of civil procedure and on facts, it is crystal clear that the courts either in the case of granting the relief or refusing, the duty cast upon it is to make a complete comprehensive appreciation of all vital features of the case. The pleadings and evidence brought on record in its entirety has to be scrutinized with care and caution. It is the duty of a Judge to see that justice is properly administered i.e., the paramount consideration of a Judge. The responsibility bestowed cannot be abdicated or abandoned even remotely or solely for any reason. The court also is required to consider the materials and ascribe concrete reasons logically flow from the requisite analysis of the materials on record. The approach cannot be cryptic, it cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasons are to be well depleted that they have to be expressed in detail. The refractive attitude of the Judge that he has not only applied his mind but a judicious mind, must be demonstrable from the judgment itself. 31. Under the above said circumstances, I am of the opinion, that this Court cannot make any roving enquiry with regard to the oral and documentary evidence adduced & produced by the parties. The refractive attitude of the Judge that he has not only applied his mind but a judicious mind, must be demonstrable from the judgment itself. 31. Under the above said circumstances, I am of the opinion, that this Court cannot make any roving enquiry with regard to the oral and documentary evidence adduced & produced by the parties. When the trial court has not done that, the appellate court always has to look in to the reasons assigned by the Trial Court to ascertain whether the Trial Court has properly assessed the oral and documentary evidence or not by giving cogent reasons, has given findings on issues either in favour of the party or against, then only the appellate court can correct any mistake committed by the court on facts and law. When no such effort has been made by the Trial Court, in my opinion, such judgment is no judgment in the eye of law. Therefore the matter has to be remitted to the Trial Court to rewrite the judgment after hearing the parties on all the issues, bearing in mind the above said observations and also the statutory responsibility cast upon the court under Order XX Rule 4 and 5 of CPC. 32. Though the plaintiff has not filed any appeal as against the findings on Issue Nos.1 to 4 and 6 also adversely affect the defendant’s case. It is just and necessary to set aside the entire judgment and decree passed by the Trial Court. The Trial Court after receipt of this judgment and records, has to secure the parties, rehear the parties to the suit and pass appropriate order in accordance with Order XX Rule 4 and 5 of CPC and also in the light of the observations made in the body of this judgment. With these observations, the appeal is allowed. The judgment and decree passed by the Trial Court is hereby set aside.