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2023 DIGILAW 1247 (KAR)

Venkataramaiah v. Hanumanthappa

2023-10-26

ASHOK S.KINAGI

body2023
JUDGMENT 1. This second appeal is filed by the appellants challenging the judgment and decree dtd. 20/12/2006, passed in R.A.No.221/2000 by the Fast Track Court-III, Kolar, confirming the judgment and decree dtd. 7/11/2000 passed in O.S.No.47/1998 by the Prl. Civil Judge (Jr.Dn.), Kolar. 2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellant Nos.1 and 2 are defendant Nos.1 and 2 and respondents 1 to 3 are the plaintiffs and respondent Nos.4 to 7 are defendant Nos.3 to 6. 3. The brief facts leading rise to filing of this appeal are as under: The plaintiffs filed a suit for declaration of title and permanent injunction in respect of the suit schedule property. It is the case of the plaintiffs, that the plaintiffs are the absolute owners of the suit schedule property. It is contended that the suit schedule property was the ancestral property of the plaintiffs. The said property was acquired by the father of the plaintiffs through the partition, took place between the father of the plaintiffs and defendant No.1 and their brothers. In the said partition, the suit schedule property was fallen to the share of plaintiffs' father. The plaintiffs and their father are in joint possession and enjoyment of the suit schedule property. Earlier, the katha was standing in the name of grand father of the plaintiffs and after partition, the property was transferred in the name of father of the plaintiffs. It is contended that the plaintiffs father left the house about four years back and the plaintiffs have searched their father and even now searching but his whereabouts are not known. The defendants have no right, title or interest over the suit property. The defendants are trying to interfere into the peaceful possession of the plaintiffs over the suit schedule property. The plaintiffs requested the defendants not to interfere into the peaceful possession and enjoyment of the suit schedule property. But the defendants did not give any heed to the request made by the plaintiffs. It is contended that the defendants were concocted some forged documents to knock off the suit property from the plaintiffs and therefore they had given written complaint to the jurisdictional police. But the defendants did not give any heed to the request made by the plaintiffs. It is contended that the defendants were concocted some forged documents to knock off the suit property from the plaintiffs and therefore they had given written complaint to the jurisdictional police. It is further submitted that, the suit property is attached to the Kolar City limits and the defendants are trying to dig a foundation pit for construction of residential building in the suit property and are trying to dispossess the plaintiffs from the suit property. Hence, cause of action arose for the plaintiffs to file a suit for declaration of title. 4. Defendant No.1 filed written statement denying the averments made in the plaint. It is admitted that the plaintiffs father Chinnappa, defendant No.1 and their brothers are the sons of Maddurappa constituted a Hindu Undivided joint family and in possession of all joint family properties including the suit property. It is contended that after the death of Maddurappa, the plaintiffs father Chinnappa and defendant No.1 and other brothers divided the joint family properties by taking their legitimate shares. It is denied that in the partition, the suit schedule property was fallen to the share of the plaintiffs father. It is denied that the katha was transferred in the name of the plaintiffs grandfather and thereafter in the name of the plaintiffs father. It is contended that after the partition, the said property was standing in the name of defendant No.1 and the plaintiffs' father name was entered in the RTC col.12/2. He denied that Chinnappa left the house about four years back and the plaintiffs have searched for their father, but his whereabouts are not know. It is contended that the plaintiffs father is alive and he had not co-operated with the plaintiffs to file false suit against these defendants. It is contended that the defendants have already constructed a tile roofed varanda with stone roofed wall in the suit land to store the agricultural implements about 15 years back. The plaintiffs are not in possession of the suit schedule property. It is contended that after the death of Maddurappa, the plaintiffs father and defendant No.1 and their brothers got divided the joint family property. The plaintiffs are not in possession of the suit schedule property. It is contended that after the death of Maddurappa, the plaintiffs father and defendant No.1 and their brothers got divided the joint family property. In the said partition, Sy.No.34/1 measuring 01 acre 09 guntas fell to the share Doddamuneppa, Sy.No.34/2 measuring 01 acre 02 guntas fell to the share of Thuvanna, Sy.No.52/3 measuring 33 guntas fell to the share of Venkataramaiah i.e., defendant No.1, Sy.No.34/3 measuring 01 acre 06 guntas fell to the share of Chikkamuneppa and Sy.No.52/2 northern side of the suit schedule property measuring 36 guntas fell to the share of plaintiffs' father Chinnappa. The plaintiffs and their father sold Sy.No.52/2 to one Krishnappa under a registered sale deed dtd. 19/5/1978. It is contended that the defendants have lodged a complaint against the plaintiffs and their attempt to disturb the agricultural operation and removing the boundary stones fixed by the survey department. It is contended that the suit is ill motivated at the instance and outcome of defendant Nos.1 and 2. It is further contended that defendant Nos.1 and 2 are in continues possession of the suit schedule property for a period of more than 40 years prior to this suit. 5. Defendant Nos.3 to 6 filed written statement denying the averments made in the plaint and it is contended that the suit filed by the plaintiffs is not maintainable and there is no cause of action to file a suit. It is further contended that taking undue advantage of the absence of defendant Nos.3 to 6, defendant No.1 had managed to get the katha changed into his name in respect of the suit property and for that defendant Nos.3 to 6 have preferred an appeal before the A.C., in R.A.No.108/1998. They further submit that neither the plaintiffs nor defendant Nos.1 and 2 have any manner of right, title, interest over the suit property. Defendant Nos.3 to 6 are the absolute owners of the suit property. Hence, prayed to dismiss the suit. 6. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues: Issues: 1. Do the plaintiffs prove that their father was the absolute owner in lawful possession and enjoyment of the suit property having been derived the same at the family partition effected between himself and other family members? 2. 6. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues: Issues: 1. Do the plaintiffs prove that their father was the absolute owner in lawful possession and enjoyment of the suit property having been derived the same at the family partition effected between himself and other family members? 2. Do the plaintiffs prove that they are the absolute owners in lawful possession and enjoyment of the suit property for the reason stated at plaint para-4? 3. Does the defendant No.1 proves that suit property had fallen to his share at the time of family partition between himself and the father of the plaintiffs? 4. Does the defendant No.1 proves that he is the absolute owner in lawful possession and enjoyment of the suit property on the date of suit? 5. Do the plaintiffs proves that at the last week of January 1998 and also on the subsequent dates the defendants were illegally tried to interfere into his peaceful possession and enjoyment over the suit property by way of denying his title? 6. Do the plaintiffs prove that they are entitled for the relief of declaration? 7. Do the plaintiffs further prove that they are entitled for the relief of permanent injunction? 8. What decree or order? Addl. Issue: 1. Do the defendant No.3 to 6 prove that they are the absolute owners in lawful possession and enjoyment of the suit schedule property? 7. The plaintiffs in order to substantiate their case, plaintiff No.2 was examined as PW.1, plaintiff No.1 was examined as PW.2 and examined one Venkateshappa and another Venkateshappa as PW.3 and PW.4 and got marked 24 documents as Exs.P1 to P24. Defendant No.1 examined as DW-1, defendant No.5 examined as DW-5 and examined four witnesses as DW.2 to DW.4 and DW.6 and got marked 36 documents as Exs.D1 to D36. The trial Court on assessment of oral and documentary evidence and considering the material on record, answered issue Nos.1, 2, 5, 6 and 7 in affirmative and issue Nos.3, 4 and additional issue No.1 in negative and consequently, decreed the suit. The trial Court on assessment of oral and documentary evidence and considering the material on record, answered issue Nos.1, 2, 5, 6 and 7 in affirmative and issue Nos.3, 4 and additional issue No.1 in negative and consequently, decreed the suit. It is ordered and decreed that the plaintiffs along with their father are declared as absolute owners of the suit schedule property and it is ordered that the defendants or any person on their behalf are permanently restrained from interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Defendant Nos.1 and 2 aggrieved by the judgment and decree passed by the trial Court, filed an appeal in R.A.No.221/2000 before the Presiding Officer, Fast Track Court-III, Kolar. 8. The First Appellate Court, after hearing the parties, has framed the following points for consideration: 1. Whether the plaintiffs are the owners of the suit schedule property? 2. Whether the plaintiffs were in possession of the suit schedule property on the date of the suit? 3. Whether the plaintiffs are entitled for the reliefs claimed? 4. Whether the judgment and decree of the lower Court is sustainable? 5. What order? 9. The First Appellate Court, on re-assessment of oral and documentary evidence on record, answered point Nos.1 to 4 in affirmative and consequently dismissed the appeal. Defendant Nos.1 and 2, aggrieved by the judgments and decrees passed by the courts below, have filed this second appeal. 10. This court admitted the appeal on the following substantial question of law : "Are the judgments of the trial Court and appellate Court sustainable in the absence of a specific issue having been framed as to whether the suit was maintainable to grant a decree in favour of plaintiffs who sought such a declaration on the basis that their father Chinnappa could be presumed to be dead?" 11. Heard the learned counsel for defendant Nos.1 and 2 and the learned counsel for the plaintiffs. 12. Smt. Manjula.C, learned counsel for defendant Nos.1 and 2 submits that the First Appellate Court except extracting the deposition of witnesses and referring the exhibits, has not assigned any reasons while passing the impugned judgment. Heard the learned counsel for defendant Nos.1 and 2 and the learned counsel for the plaintiffs. 12. Smt. Manjula.C, learned counsel for defendant Nos.1 and 2 submits that the First Appellate Court except extracting the deposition of witnesses and referring the exhibits, has not assigned any reasons while passing the impugned judgment. She submits that the First Appellate Court has not assigned any reasons in terms of Order 41 Rule 31 of the C.P.C. She submits that the judgment passed by the First Appellate Court is in violation of Order 41 Rule 31 of the CPC. Further, she submits that the plaintiffs have taken a specific defence that the father of the plaintiffs is missing since from four years. But in order to substantiate the pleadings, the plaintiffs have not proved their case and she submits that during the lifetime of the father of plaintiffs, the plaintiffs cannot claim a title over the suit schedule property. The said aspect was not considered by the First Appellate Court. Hence, on these grounds, she prays to allow the appeal and also to set aside the judgment and decree passed by the First Appellate Court and remit the matter to the First Appellate Court to reconsider the appeal afresh and pass appropriate judgment. 13. Per contra, learned counsel for the plaintiff fairly concedes that the First Appellate Court has not assigned any reason while passing the impugned judgment. He submits that the matter may be remitted to the First Appellate Court to reconsider the appeal and pass appropriate judgment. 14. Perused the records and considered the submissions of learned counsel for the parties. 15. Substantial question of law: It is the case of the plaintiffs that the suit schedule property is the ancestral property of the plaintiffs and partition was effected in between the father of the plaintiffs and his brothers In the said partition, the suit schedule property was fallen to the share of plaintiffs' father. On the strength of the partition, the property was transferred in the name of the plaintiffs' father. It is the case of the plaintiffs that the plaintiffs' father left about four years back and his where about is not known. The plaintiffs are in possession of the suit schedule property. The defendants have tried to interfere into the peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiffs that the plaintiffs' father left about four years back and his where about is not known. The plaintiffs are in possession of the suit schedule property. The defendants have tried to interfere into the peaceful possession and enjoyment of the suit schedule property. The plaintiffs in order to substantiate their case, plaintiff No.1 was examined as PW.1 and he has reiterated the plaint averments in examination-in-chief and produced the documents Ex.P1 is the genealogical tree, Ex.P2 is the index of land, Ex.P3 is the record of rights in respect of the suit schedule property, Exs.P4 to 9 are the RTC extracts, Ex.P10 is the copy of notice issued by the Assistant Commissioner, Exs.P11 to P13 are the photographs, Exs.P14 to P17 are the negatives, Exs.P18 to P23 are the RTC extracts and Ex.P24 is the index of land extract. In the course of cross- examination, it was suggested to PW.1 that Sy.No.52/2 fell to the share of his father in the partition and Sy.No.52/3 fell to the share of defendant No.1. Further, in order to prove the partition, plaintiff No.1 was examined as PW.2 and he has deposed that in the partition, the suit schedule property was allotted to his share. In rebuttal, defendant No.1 was examined as DW.1 and he has reiterated the written statement averments in the examination-in-chief. It is contended that the suit schedule property was fallen to the share of defendant Nos.1 and 2. On the basis of partition, they are in possession of the suit schedule property. The defendants also produced the documents i.e., Exs.D1 to D36. The trial Court considering the oral and documentary evidence, decreed the suit of the plaintiffs. Defendant Nos.1 and 2 aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.221/2000. The First Appellate Court framed the points for consideration. I have perused the judgment passed by the First Appellate Court. The First Appellate Court, except extracting the deposition of PW.1 and PW.2 and DW.1 to DW.6 and referring to the exhibits, has not assigned any reasons to confirm the judgment and decree passed by the trial Court. The First Appellate Court framed the points for consideration. I have perused the judgment passed by the First Appellate Court. The First Appellate Court, except extracting the deposition of PW.1 and PW.2 and DW.1 to DW.6 and referring to the exhibits, has not assigned any reasons to confirm the judgment and decree passed by the trial Court. The first appeal under Sec. 96 of CPC is a continuation of the suit and it is incumbent upon the First Appellate Court to reassess the entire evidence on record and has to follow the guidelines provided under Order 41 Rule 31 of the CPC while deciding the appeal. The right of appeal carries with it a right of re-hearing on law as well as on fact, unless the statute conferring a right of appeal, limits the re-hearing in some way as had been done in second appeal arising under Sec. 100 of the CPC. The First appeal is a valuable right of the appellant and therein all questions of fact and law decided by the trial Court are open for re-consideration. The First Appellate Court is required to address itself to all the issues and decide the case by giving reasons. The Court of first appeal must record its findings only after dealing with all issues of law as well as fact and with the evidence oral as well as documentary, led by the parties. The judgment of the First Appellate Court must display conscious application of mind and record findings supported by reasons on all issues and contention. 16. A First appeal under Sec. 96 of the CPC is entirely different from a second appeal under Sec. 100 of the CPC. Sec. 100 of the CPC expressly bars second appeal unless a substantial question of law is involved in a case and the question of law so involved is substantial in nature. 17. Under Order XLI Rule 31 of the CPC, reads as under: "Contents, date and signature of judgment.-The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." 18. It is clear from the provisions that judgment of the First Appellate Court has to set out points for determination, record the decision thereon and give its own reasons. Non observance of this requirement leads to infirmity in the judgment of the First Appellate Court. Keeping in mind the above principles, I have examined the judgment passed by the First Appellate Court. 19. The judgment and decree passed by the trial Court is in violation of Order 41 Rule 31 of the C.P.C. The First Appellate Court being a final fact finding Court, the First Appellate Court is required to re-appreciate the material on record and answer all the issues framed by the trial Court. 20. In the instant case, the First Appellate Court has not assigned any reasons in upholding the judgment and decree passed by the trial Court. Further, though the plaintiffs have pleaded in the plaint that the plaintiffs are claiming a declaration of title based on the ground that their father left the house about four years back and his where about is not known. The First Appellate Court has not considered the said aspect. 21. Sec. 108 of the Evidence Act, which reads as under: "108. Burden of proving that person is alive who has not been heard of for seven years.-- Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it." 22. Further, the plaintiffs are claiming declaration of title through their father. Therefore, burden of proving, whether the father is alive or not? is on the plaintiffs. Further, in order to presume legal death of the father, the plaintiffs have to establish that their father has not been heard of for seven years. 23. As observed above, the plaintiffs have pleaded that they have not heard of their father about four years back. The said aspect was not examined by the First Appellate Court. There is no application of mind by the First Appellate Court while passing impugned judgment and failed to follow Order 41 Rule 31 of the CPC. 23. As observed above, the plaintiffs have pleaded that they have not heard of their father about four years back. The said aspect was not examined by the First Appellate Court. There is no application of mind by the First Appellate Court while passing impugned judgment and failed to follow Order 41 Rule 31 of the CPC. Hence, in view of the above discussion, I answer the substantial question of law in the negative. 24. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER The appeal is allowed. The impugned judgment dtd. 20/12/2006 passed in R.A.No.221/2000 passed by the Fast Track Court-III, Kolar is set aside. The appeal is restored. The First Appellate Court is directed to rehear and pass judgment in terms of Order 41 Rule 31 of C.P.C. This Court has not made any adjudication on merits in issue. All the contentions of the parties are kept open. The parties are directed to appear before the First Appellate Court on 4/1/2024 without awaiting any further notice. Office is directed to transmit the records forthwith to the First Appellate Court. In view of disposal of the appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of.