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2025 DIGILAW 1262 (KAR)

Venkatachalaiah S/o Chikka Nanjappa v. Puttamma W/o Venkataravanappa (Since Dead) Smt. Lakshmamma

2025-11-18

ASHOK S.KINAGI

body2025
JUDGMENT : ASHOK S. KINAGI, J. 1. This appeal is filed by the appellant challenging the judgment and decree dated 22.06.2013 passed in R.A.No.22/2003 by the learned Additional Senior Civil Judge and J.M.F.C., Madhugiri. 2. For the sake of convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was the plaintiff and the respondents were the legal heirs of the defendants. 3. The brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit for declaration to declare that he is the owner of the suit schedule properties and for a permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties. It is the case of the plaintiff that the suit schedule properties are situated at Rayavara village in Sy.No.170/2.B6 measuring 30 guntas, out of which 15 guntas and the boundaries are specified and another item of property is situated in Sy.No.170/2.B3 measuring 5 guntas. The suit schedule properties belong to the plaintiff and he had purchased the same from defendant no.1 under a registered sale date dated 16.08.1994 for valuable consideration. Since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the suit schedule properties. It is contended that defendant no.2 has no right, title or interest over the suit schedule properties and defendant no.2 is not in possession of the suit schedule properties. Defendant no.2 is attempting to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. The plaintiff requested the defendants not to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. The defendants did not give any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for declaration and permanent injunction. 4. Defendant no.2 filed a written statement denying the averments made in the plaint. It is denied that the plaintiff had purchased the suit schedule properties from defendant no.1 under the alleged sale deed and it is denied that the plaintiff is in possession of the suit schedule properties. 4. Defendant no.2 filed a written statement denying the averments made in the plaint. It is denied that the plaintiff had purchased the suit schedule properties from defendant no.1 under the alleged sale deed and it is denied that the plaintiff is in possession of the suit schedule properties. It is contended that defendant no.2 inherited the suit schedule properties from one Venkataravanappa and further, the said Venkataravanappa, out of love and affection gifted the suit properties in favour of defendant no.2 and delivered the possession of the same. Since 1981 and 1974 respectively, defendant no.2 has been in possession and enjoyment of the suit properties. It is contended that defendant no.1 had suffered a decree in respect of the suit schedule properties in O.S.No.175/1994 on the file of this court and it was declared that defendant no.2 is the owner and in possession of the suit schedule properties. Hence, on these grounds, prays to dismiss the suit against defendant no.2. 5. Defendant no.1 filed a separate written statement. Wherein defendant no.1 supported the case of the plaintiff and pray to decree the suit as prayed for, in the plaint. 6. The Trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that he is the owner in possession of the suit schedule properties? 2. Whether the plaintiff proves that the suit schedule properties exclusively belonged to the first defendant? 3. Whether the second defendant proves that the suit schedule properties were gifted by her father Venkataravanappa? 4. Whether the second defendant proves that the first defendant is living with her original husband after giving birth to the second defendant through Venkataravanappa? 5. Whether the first defendant has suffered a decree in O.S.No.175/94 of this Court? 6. What order or decree? 7. The plaintiff, to substantiate his case, examined himself as P.W.1, examined three witnesses as P.W.2 to P.W.4 and marked 27 documents as per Ex.P.1 to Ex.P.27. 8. In rebuttal, defendant no.2 was examined as D.W.1 and marked 33 documents as per Ex.D.1 to Ex.D.33. 9. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue nos.1 and 2 in the affirmative, issue nos.3 to 5 in the negative and issue no.6 as per the final order. 8. In rebuttal, defendant no.2 was examined as D.W.1 and marked 33 documents as per Ex.D.1 to Ex.D.33. 9. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue nos.1 and 2 in the affirmative, issue nos.3 to 5 in the negative and issue no.6 as per the final order. The suit of the plaintiff was decreed with costs and it is declared that the plaintiff is the owner and in possession of the suit schedule properties and the defendants restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. 10. The defendants, aggrieved by the judgment and decree dated 29.01.2003, passed in O.S.No.35/1995 preferred an appeal in R.A.No.22/2003 on the file of the learned Additional Senior Civil Judge and J.M.F.C., Madhugiri. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1. Whether Puttamma (Defendant No.2) had right to sell the suit schedule properties? 2. Whether additional evidence is required as per the I.A.IV U/o 41 Rule 27 of CPC? 3. Whether the impugned Judgment and Decree requires the interference by this Court? 4. What order? 11. The First Appellate Court, after re-appreciating the evidence on record, answered point no.1 and 2 in the negative, point no.3 in the affirmative and point no.4 as per the final order. The First Appellate Court allowed the appeal vide judgment and decree dated 22.06.2013 and set aside the judgment and decree passed in O.S.No.35/1995 and consequently dismissed the suit filed by the plaintiff and also rejected the application for production of additional evidence. The plaintiff, aggrieved by the judgment and decree dated 22.06.2013 passed in R.A.No.22/2003, filed this regular second appeal. 12. Heard the learned counsel for the plaintiff and the learned counsel for the defendants. 13. Learned counsel for the plaintiff submits that the judgment passed by the First Appellate Court is not in compliance with Order XLI Rule 31 of the Code of Civil Procedure. He also submits that the First Appellate Court, being the final fact finding court, is required to re-appreciate the entire evidence on record. He submits that the First Appellate Court has to answer each issue framed by the Trial Court and frame proper points for adjudication. He also submits that the First Appellate Court, being the final fact finding court, is required to re-appreciate the entire evidence on record. He submits that the First Appellate Court has to answer each issue framed by the Trial Court and frame proper points for adjudication. To buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of H. Siddiqui Dead by LRs. v. A. Ramalingam, AIR 2011 SC 1492 . Hence, on these grounds, he prays to set aside the judgment and decree passed by the First Appellate Court and remit the matter to the First Appellate Court with a direction to pass a judgment in terms of Order XLI Rule 31 of CPC. 14. Per contra, the learned counsel for the defendants submits that the First Appellate Court, on re-appreciation of the entire evidence on record, has rightly passed the impugned judgment. The judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference of this court. Hence, on these grounds, he prays to dismiss the appeal. 15. This Court, vide order dated 31.01.2017, framed the following substantial questions of law: 1) Whether the lower appellate court is justified in reversing the Judgment and decree of the trial court, when the trial court decreed the suit of the plaintiff declaring that the plaintiff is the owner in possession of suit schedule property by virtue of a registered sale deed dated 16.08.1994, Ex.P.1? 2) Whether the lower appellate court is justified in reversing Judgment and decree of trial court rejecting the application under Order XLI Rule 27 of the Code of Civil Procedure, without providing an opportunity to the plaintiff to putforth his case? 3) Whether the lower appellate court is justified in reversing Judgment and decree of trial court, in the facts and circumstances of the present case? 16. Reg. substantial questions Law Nos.1 to 3: The substantial questions No.1 to 3 are interlinked and hence they are taken together for common discussion to avoid the repetition of facts. 17. The plaintiff filed a suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule properties, as the suit schedule properties were purchased from defendant no.1 under a registered sale date dated 16.08.1994. Defendant no.2 had no right, title or interest over the suit schedule properties. 17. The plaintiff filed a suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule properties, as the suit schedule properties were purchased from defendant no.1 under a registered sale date dated 16.08.1994. Defendant no.2 had no right, title or interest over the suit schedule properties. Defendant no.2 tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. The plaintiff, to prove that defendant no.1 had executed the sale deed, produced the sale deed marked as Ex.P.1, which discloses that defendant no.1 executed a registered sale deed in favour of the plaintiff on 16.08.1994 and produced the RTC extracts marked as Ex.P.2 to Ex.P.7 to show that the plaintiff is the absolute owner and in possession of the suit schedule properties. Exs.P.8 and 9 are the mutation register extracts wherein the revenue authorities, based on Ex.P.1 mutated the name of the plaintiff in the revenue records. Ex.P.10 is the Kandayam receipt, which discloses that the plaintiff had paid the land revenue of the suit schedule properties. Ex.P.11 is the voters list. Ex.P.12 is the small book. Ex.P.13 is the endorsement. Ex.P.14 is the certified copy of the order sheet in Mis.No.3/1995. Ex.P.15 is the RTC extract for the year 1996-1997 and Ex.P.16 to Ex.P.27 are the other documents produced by the plaintiff. The plaintiff also examined three witnesses as P.W.2 to P.W.4, who have deposed in the same line as P.W.1. 18. In rebuttal, defendant no.2 was examined as D.W.1 and to prove her defence, produced 33 documents as per Ex.D.1 to Ex.D.33 and also examined three witnesses as D.W.2 to D.W.4. 19. The Trial Court, after recording the evidence, has recorded its finding that the plaintiff has establish that he is the owner in possession of the suit schedule properties and it is also held that the plaintiff has proved that the suit schedule properties exclusively belong to defendant no.1 and it is held that defendant no.2 has failed to establish that the suit schedule properties were gifted by her father, namely, Venkataravanappa. Consequently, decreed the suit of the plaintiff with cost and restrained the defendant from interfering with the peaceful possession and enjoyment of the suit schedule properties. 20. Defendant no.2, aggrieved by the judgment and decree passed in O.S.No.35/1995, preferred an appeal in R.A.No.22/2003. Consequently, decreed the suit of the plaintiff with cost and restrained the defendant from interfering with the peaceful possession and enjoyment of the suit schedule properties. 20. Defendant no.2, aggrieved by the judgment and decree passed in O.S.No.35/1995, preferred an appeal in R.A.No.22/2003. During the pendency of the appeal, defendant no.2 filed an application for production of additional evidence. The First Appellate Court expect extracting some portions of the deposition of the witnesses and reproduction of the judgments passed by this Court as well as the Hon'ble Apex Court, has reversed the judgment and decree passed by the Trial Court. From the perusal of the judgment passed by the First Appellate Court, the First Appellate Court has not re- appreciated the entire evidence on record and further, it has not assigned any reasons for reversing the judgment. 21. The Hon'ble Apex Court in the case of H.Siddiqui referred supra while dealing with Order XLI Rule 31 of CPC held that it is Appellate Court's duty to provide reasoned findings and re-examine evidence. 22. From the perusal of the law laid down by the Hon'ble Apex Court, it is mandatory for the First Appellate Court to independently assess the evidence of the parties and consider the relevant points, which arise for adjudication and bearing of evidence on those points. The First Appellate Court, being a final fact-finding authority, must not record a mere general expression of concurrence with the Trial Court judgment; rather, it must give reasons for its revision on each point independently from that of the Trial Court. Admittedly, the First Appellate Court, while reversing the judgment of the Trial Court, has not assessed the evidence properly and has not framed the relevant points for adjudication. The judgment and decree passed by the First Appellate Court is not in compliance with Order XLI Rule 31 of CPC. The judgment rendered by the First Appellate Court is contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of H.Siddiqui referred to supra. Hence, on these grounds the impugned judgment and decree is liable to be set aside. 23. Further, the First Appellate Court, while rejecting the application under Order XLI Rule 27 CPC for production of additional evidence, has not assigned proper reasons. The application filed by defendant no.2 requires reconsideration by the First Appellate Court. 24. Hence, on these grounds the impugned judgment and decree is liable to be set aside. 23. Further, the First Appellate Court, while rejecting the application under Order XLI Rule 27 CPC for production of additional evidence, has not assigned proper reasons. The application filed by defendant no.2 requires reconsideration by the First Appellate Court. 24. The judgment and decree passed by the First Appellate Court is perverse and arbitrary; hence, the same is liable to be set aside. In view of the above discussion, I answer substantial question nos.1 to 3 in the negative. 25. Accordingly, proceed to pass the following: ORDER i. The regular second appeal is allowed. ii. The judgment and decree dated 22.06.2013 passed in R.A.No.22/2003 on the file of Additional Senior Civil Judge and J.M.F.C., Madhugiri, is set aside and an appeal in R.A.No.22/2003 is restored to its original file. iii. The First Appellate Court is directed to pass the judgment in compliance with the Order XLI Rule 31 of the CPC after affording an opportunity of hearing to both parties. iv. It is made clear that this Court has not made any adjudication on the merits in issue. v. All the contentions of the parties are kept open. vi. The parties are directed to appear before the First Appellate Court on 05.01.2026 without awaiting further notice. vii. The office is directed to transmit the records to the First Appellate Court forthwith. Pending interlocutory application, if any, disposed of accordingly.