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2019 DIGILAW 1226 (KAR)

Basavaraj v. Irappa

2019-06-12

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The defendant in O.S. No. 111/2007, being aggrieved by the judgment and decree dated 22.10.2018, passed in R.A. No. 81/2014, by the Prl. Senior Civil Judge and CJM, Gadag, confirming the judgment and decree dated 10.10.2014, passed by the Prl. Civil Judge, Gadag, in O.S. No. 111/2007, has filed this regular second appeal. 2. The appellant herein is the defendant No. 1 before the trial Court and appellant before the lower appellate Court. The respondent Nos. 1 and 2 herein are the plaintiff and defendant No. 2 respectively, before the trial Court and respondent Nos. 1 and 2 before the lower appellate Court. 3. The status of the parties is referred to as per their ranking before the trial Court. 4. The brief facts of the case are that, the plaintiff Irappa S/o Basappa Iragar filed the suit in O.S. No. 111/2007 seeking the relief of declaration to declare that he is the owner of the suit schedule property bearing VPC No. 221 of Kotumachagi village and mutation entry in favour of the defendant is illegal and mandatory injunction to remove the hay-stack from the suit property and also for permanent injunction restraining the defendant No. 1 from causing obstruction to the possession and enjoyment of the suit property by the plaintiff. 5. It is the case of the plaintiff that the suit property is his ancestral property and previously it was standing in the name of his father and after the death of his father, his name was entered in the records. He is in actual possession and enjoyment of the suit property. Recently the defendant No. 1 filed an application to defendant No. 2, to enter his name in respect of the suit property on the ground that he has purchased the suit property from the father of the plaintiff under the registered sale deed dated 12.8.1953. The plaintiff filed objections to the said application. But in spite of the objections, the defendant No. 2 passed a resolution to enter the name of the defendant in respect of the suit property. Therefore the plaintiff was constrained to file the said suit for the aforesaid reliefs. 6. In pursuance of the suit summons, the defendants appeared before the trial Court and filed the written statement denying the plaint averments. Therefore the plaintiff was constrained to file the said suit for the aforesaid reliefs. 6. In pursuance of the suit summons, the defendants appeared before the trial Court and filed the written statement denying the plaint averments. It is the specific contention of the defendant that the sketch produced by the plaintiff does not depict the true picture of the existence of the property. The father of the defendant has purchased the open space through the sale deed dated 12.8.1953 from the father of the plaintiff and he was put in possession of the said property. The father of the defendant expired on 10.11.2000 and now the defendant filed an application for entering his name in the records. Further stated that, the defendant's father being an illiterate and innocent person, he did not get his name mutated to the suit property. He was under the impression that his name will be entered on the basis of the registered document. After the death of his father, the defendant was also under the impression that the suit property was in the name of his father. In April 2006 the plaintiff obstructed the possession of the defendant and on enquiry, he came to know that his father's name was not entered in respect of the suit property. Thereafter he made an application to the panchayat for entering his name and accordingly his name came to be entered. Therefore the suit of the plaintiffs liable to be dismissed. 7. On the basis of the pleadings of the parties, the trial Court framed the following: ISSUES 1. Whether the plaintiff prove that, he is the exclusive owner and in possession of the suit property as on the date of filing the suit? 2. Whether the plaintiff prove that, the mutation entry made by Gram Panchayat is illegal and is liable to be cancelled? 3. Whether the plaintiff proves that defendant has illegally stored haystack in the suit property? 4. Whether the plaintiff proves the alleged interference by defendant? 5. Whether defendant proves that suit is bad for non-joinder of necessary party? 6. Whether plaintiff is entitled to the reliefs sought? 7. What order or decree? 8. In support of his case the plaintiff got examined himself as PW-1 and got marked 15 documents as Exs.P.1 to P.15. 4. Whether the plaintiff proves the alleged interference by defendant? 5. Whether defendant proves that suit is bad for non-joinder of necessary party? 6. Whether plaintiff is entitled to the reliefs sought? 7. What order or decree? 8. In support of his case the plaintiff got examined himself as PW-1 and got marked 15 documents as Exs.P.1 to P.15. It is seen from the record that the defendant neither cross examined PW-1 nor adduced any evidence on his behalf. The trial Court after hearing the plaintiff, answered issue Nos. 1 to 4 and 6 in the affirmative and issue No. 5 stating that it does not survive for consideration and consequently decreed the suit of the plaintiff. 9. The defendant No. 1 being aggrieved by the impugned judgment and decree passed by the trial Court, filed R.A. No. 81/2014, on the file of Prl. Senior Civil Judge and CJM, Gadag. The said appeal was filed along with I.A. No. 1 under section 5 of the Limitation Act seeking to condone the delay of 31 days in filing the appeal. The lower appellate Court secured the records. Heard the learned counsels appearing for the parties and dismissed I.A. No. 1 filed under section 5 of the Limitation Act and consequently the appeal, by judgment dated 22.10.2018. The defendant No. 1 being aggrieved by the judgment and decree passed by both the Courts below has filed this regular second appeal. 10. This appeal is admitted to consider the following substantial question of law. "Whether the lower appellate Court has committed an error in dismissing the appeal filed under section 96 of CPC as time barred, in spite of production of sufficient cause for condonation of delay of 31 days and thus the judgment of the lower appellate Court has become perverse and illegal?" 11. Heard the learned counsel for the appellant and respondents. The learned counsel for the appellant relying on the judgment of this Court in the case of Chidanandappa S/o Annappa Road vs. Husensab S/o Gokharasab Masapati in RSA No. 5776/2013, decided on 15.7.2014, submitted that under the similar circumstances this Court has allowed the second appeal and remitted the matter to the lower appellate Court on restoring the appeal with a direction to dispose of the matter on merits. 12. 12. Per contra, the learned counsel for the respondent No. 1 submitted that the conduct of the defendant No. 1 goes to show that he is not entitled for further opportunity in the matter to prosecute the appeal. The learned counsel drew attention of this Court to the conduct of the appellant/defendant as to his participation in the suit. 13. It is made out from the record that the defendant did appear before the trial Court and filed his written statement at the fag end of the trial and the trial Court had granted sufficient opportunity to the defendant to participate in the proceedings of the suit. In the present case this Court has to consider as to whether the lower appellate Court has committed serious error in dismissing the appeal filed under section 96 of CPC, as time barred, without considering the sufficient cause made out by the appellant and therefore the matter needs to be remitted to the lower appellate Court. 14. This Court in the case of Chidanandappa stated supra, has held that delay should be liberally construed and no pedantic approach should be adopted in the matter of condonation of delay, which is the dictum of the Hon'ble Apex Court as held in the case of Collector, Land Acquisition, Anantnag vs. Katiji, (1987) AIR SC 1353. The lower appellate Court instead of condoning the delay of 31 days, imposing reasonable cost, proceeded to dismiss the appeal itself on the question of delay. Therefore the learned judge of the lower appellate Court has committed a serious error in adopting the pedantic approach, which is improper and incorrect. Hence the appeal has to be allowed by answering the substantial question of law in the affirmative. 15. In the result, this Court proceed to pass the following: ORDER: The appeal is allowed. The judgment and decree dated 22.10.2018, passed in R.A. No. 81/2014, by the Prl. Senior Civil Judge and CJM, Gadag, is set aside. The matter is remitted to the lower appellate Court to restore the appeal and dispose of the matter on merits, since the delay is condoned, subject to the appellant paying cost of Rs. 1,000/- before the lower appellate Court on his appearance. Senior Civil Judge and CJM, Gadag, is set aside. The matter is remitted to the lower appellate Court to restore the appeal and dispose of the matter on merits, since the delay is condoned, subject to the appellant paying cost of Rs. 1,000/- before the lower appellate Court on his appearance. The parties are directed to appear before the lower appellate Court on 2.7.2019 and thereafter the lower appellate Court shall hear the parties and dispose of the matter, in accordance with law, within a period of six months from the date of appearance of the parties. The parties are directed to bear their own costs.