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2019 DIGILAW 1377 (KAR)

H. S. Revana Siddappa v. H. S. Veerabhadrappa

2019-06-21

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The plaintiff and defendant No.2 being aggrieved by the judgment and decree dated 6.3.2012, passed in R.A.No.121/2010, passed by the Fast Track Court-III, Hosapete, have filed the present MSA and MSA CROB. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The appellant here in is the plaintiff and cross objector is the defendant No.2 before the trial Court. 4. The brief facts of the case are that the plaintiff had filed a suit bearing O.S.No.42/2009, for partition and separate possession in the suit schedule properties contending that the properties are ancestral joint family properties and after the death of the original propositus, the plaintiff, defendants No.1 and 2 and defendants No.4 to 6 succeeded to the suit properties. It is the further case of the plaintiff that 3 brothers got partitioned themselves orally and palupatti was reduced into writing on 1.1.1994, defendant No.1 gifted item No.14 i.e., property bearing Sy.No.775/C measuring 3.64 acres and open site bearing Panchayat Door No.414, situated at Ramanagar of Hagaribommanahalli in favour of defendant No.3, without the consent of the plaintiff and others. As such, the plaintiff demanded partition in the suit schedule properties, but the defendant No.1 was reluctant to effect partition. Hence the plaintiff was constrained to file the said suit seeking his 1/3rd share in the suit schedule properties. 5. In response to the suit summons the defendants appeared before the trial Court through their counsel. The defendants No.2, 4 and 6 filed the written statement supporting the case of the plaintiff. The defendant No.1 filed the written statement contending that he has gifted item No.14 in favour of defendant No.3 and the suit properties had been gifted by his father in law to his wife as Arishina Kumkuma and as such the same are not ancestral joint family properties. It is further contended that the suit is not maintainable for non inclusion of properties mentioned in his reply notice. 6. On the basis of the pleadings of the parties, the trial Court framed issues. In order to prove his contention, the plaintiff got examined himself as PW.1 and got marked 25 documents as Exs.P.1 to P.25. On behalf of defendants, defendants No.1 and 2 were examined as DWs.1 and 2 and got marked 6 documents as Ex.D.1 to D.6(g). 7. On the basis of the pleadings of the parties, the trial Court framed issues. In order to prove his contention, the plaintiff got examined himself as PW.1 and got marked 25 documents as Exs.P.1 to P.25. On behalf of defendants, defendants No.1 and 2 were examined as DWs.1 and 2 and got marked 6 documents as Ex.D.1 to D.6(g). 7. The trial Court after hearing both the parties, decreed the suit by judgment dated 21.10.2010. It was declared that the plaintiff, defendant No.1, 2 and 4 to 6 are entitled to 1/6th share in the suit schedule properties except item No.14. 8. Being aggrieved by the impugned judgment and decree, the plaintiff preferred R.A.No.121/2010 before the Prl. District Judge, Ballari, insofar as not awarding any share in item No.14 of the suit schedule properties. At the same time, defendant No.2 filed cross objection in the said appeal. The lower appellate Court by the impugned judgment dated 6.3.2012, set aside the judgment and decree dated 21.10.2010 passed in O.S.No.42/2009 by the Prl.Senior Civil Judge and JMFC, Hosapete. Consequently the matter was remanded to the trial Court with a direction to readmit the suit and proceed to determine the suit after giving reasonable opportunity to the plaintiff to implead necessary parties and to include the other properties as observed in the judgment and then to dispose of the suit afresh. 9. The plaintiff being aggrieved by the impugned judgment has filed MSA No.555/2012 and defendant No.2 has filed MSA CROB No.26/2012. 10. Heard the learned counsels appearing for the parties. 11. A short question which arises for consideration in these matters is as to whether the appellant has made out grounds for interfering with the impugned judgment and decree remanding the matter to the trial Court. 12. The learned counsel for the appellant relying on the judgment in the case of Zarif Ahmad (D) Thr. Lrs. & Anr. vs. Mohd. Farooq, 2015 SAR(Civil) 333, submitted that the lower appellate Court ought to have directed the plaintiff to include the remaining properties and also to include the necessary parties in the said appeal and then ought to have disposed of the appeal on merits and that there were no grounds to remand the matter to the trial Court. 13. In the said case, the Hon'ble Supreme Court in paragraph No.13, has held as follows: "13. 13. In the said case, the Hon'ble Supreme Court in paragraph No.13, has held as follows: "13. No doubt, Section 107 of CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 of Order XLI C.P.C. provides that where evidence on record is sufficient, appellate court may determine the case finally. It is not a healthy practice to remand a case of trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case." 14. Therefore in the present case, the first appellate Court ought not to have remanded the matter to the trial Court for the purpose of impleading other parties and for the inclusion of the properties. On the other hand, such exercise should have been undertaken before the first appellate Court itself. 15. The learned counsel for the cross objectors submitted that the first appellate Court has disposed off the appeal without considering cross objections filed by respondent No.2/defendant No.2. 16. The learned counsel drew the attention of the Court to the contentions at paragraph 12 in the judgment wherein the appellant has observed that "the cross appeal is against the counter claim." 17. This observation of the appellate Court is incorrect and against its own record. The first appellate Court in its order-sheet dated 26.02.2011 has clearly stated that "MVSR Advocate has filed power for respondent No.2, 4 to 6 and cross objections for respondent No.2." 18. Therefore cross objections were filed on behalf of respondent No.2 and the same were received by the first appellate Court. The memorandum of cross objections filed on behalf of respondent No.2 are intact in the record of the first appellate Court. Therefore, the observations of the first appellate Court that respondent No.2 has not challenged the judgment and decree passed against him by cross objection or cross appeal is erroneous and against the record. 19. The memorandum of cross objections filed on behalf of respondent No.2 are intact in the record of the first appellate Court. Therefore, the observations of the first appellate Court that respondent No.2 has not challenged the judgment and decree passed against him by cross objection or cross appeal is erroneous and against the record. 19. On both the above said grounds, the impugned judgment and decree is liable to be set aside and the matter needs to be remanded to the first appellate Court with a direction to readmit the appeal and permit the plaintiff to implead the necessary parties and also to implead necessary parties and permit them to file their written statement and then frame issues, if necessary and permit the parties to adduce any evidence orally or documentary and thereafter dispose off the appeal in accordance with law. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MSA No.555/2012 and MSA CROB No.26/2012 are allowed. The judgment and decree dated 06.03.2012 passed in Regular Appeal No.121/2001 by the Presiding Officer, Fast Track Court-III at Hosapete is set aside. The matter is remanded to the first appellate Court with the following directions: (1) The first appellate Court shall readmit the appeal in its original number. (2) The first appellate Court shall permit the plaintiff to include the remaining properties as observed in the impugned judgment and also to implead the necessary parties, permit them to file written statement and also to lead further evidence in the matter and thereafter to dispose off the appeal in accordance with law, preferably within a period of six months from the date of receipt of record. (3) The first appellate Court is also directed to consider the cross objections filed by respondent No.2 and then dispose off the appeal in accordance with law. (4) The parties are directed to appear before the first appellate Court on 23.07.2019 without waiting for notice. The Registry is directed to send the records to the first appellate Court forthwith.