Muniswamappa v. Munianjanamma

Judgment

1. Munianjanamma, Aged about 60 years, W/o. Akkappa, R/at Kallakere Village, K.R. Puram Hobli, Bangalore East Taluk-560 036.

2. Ramakka, W/o. late Siddappa, Aged about 50 years, R/at Guddadahalli, Hesaragatta Post, Bangalore South Taluk-560 038. 2 RSA 368/10

5. K. Lakkappa, S/o. late Kemapaiah, Aged about 50 years, K. Krishnappa, S/o. late Kemapaiah, Aged about 45 years, K. Lokesh, S/o. Late Kemapaiah, Aged about 40 years, Respondents 3 to 5 are R/at K. Channasandra, K.R. Puram Hobli, Bangalore East Taluk-560 036. ... RESPONDENT/S

[By Sri. K. Shivashankar, Adv. for C/R3-5. Sri. G.B. Manjunath, Adv. for R1. Sri. N. Krishna Murthy, Adv. for R2.] *** This RSA is filed u/Section 100 of CPC., against the Judgement and Decree dated 08.12.2009 passed in R.A. No.63/2009, on the file of Principal District & Sessions Judge, Bangalore Rural District, Bangalore, allowing the appeal and setting aside the Judgement and Decree passed by the Principal Civil Judge (Sr.Dn.), Bangalore Rural District, 20.02.2009. No.879/2002 Bangalore, O.S. This RSA coming on for Hearing, this day, the Court delivered the following: JUDGMENT The appellant herein instituted a suit for declaration and possession of the suit property bearing Sy. No.54 measuring 3 acres 16 guntas, situated at 3 RSA 368/10 Maragondanahalli, Bidarahalli Hobli, Bangalore East Taluk, properly described in the schedule to the plaint.

2. The facts relevant for the purpose of this appeal in brief are as under: The appellant herein is the plaintiff and respondents are the defendants before the trial Court. The appellant claims that he purchased the suit property under a registered Sale Deed, dated 14.08.1961. On the application, the Special Deputy Commissioner by an Order dated 24.06.1962 re-granted the land in favour of Siddappa i.e., the appellant’s father and he was in possession. He died in the year 1992. On the demise of Siddappa, the appellant continued in possession of the suit property. The appellant is said to have been dispossessed in the year 1993-94. Hence the suit came to bee filed for a declaration that he is the owner of the suit property and also for possession. The suit was contested by the defendants. Defendant Nos.3 to 5 in their written statement claim that they are the absolute owners in possession of the suit property and that the land was granted in favour of them by an Order of the Special Deputy Commissioner, 4 RSA 368/10 Kolar and as they are in possession of the suit property, the question of the plaintiff being the owner of the suit property or claiming possession does not arise. Therefore, they sought for dismissal of the suit. The trial Court framed the issues, recorded the evidence and ultimately decreed the suit after hearing both the parties. Defendant Nos.3 to 5 have preferred an appeal in R.A. No.63/2009. When the appeal was pending, the said defendants who are the appellants before the first appellate Court filed two interim applications under the provisions of Order XLI Rule 27 CPC for permission to produce additional evidence, one application under the provisions of Order XXVI Rule 9 CPC for local inspection of the suit property and another application under the provisions of Order VI Rule 17 CPC seeking amendment of the written statement. It is thereafter, the first appellate Court heard the learned counsel for the respective parties and allowed the appeal and dismissed the suit of the appellant herein. Aggrieved by the Judgment and Decree of the first appellate Court, the appellant/plaintiff is before this Court. 5 RSA 368/10

3. This Court while admitting the appeal on

19.08.2010 has raised the following substantial questions of law for consideration: 1) Whether the findings of the lower appellate Court that the Civil Court cannot go into the grant order when the grant order formed the basis for subsequent sale deeds, is sustainable in law? 2) Whether the lower appellate Court could have reversed the Judgment of the trial Court in the absence of the defendants producing the grant order in support of their case as against the plaintiff producing the grant order and other orders as per Exs.P4 to 6? This court on 10.08.2012 has raised the following additional substantial question of law for consideration: In the present suit for the relief of declaration of title and possession, when appellant claimed dispossessed in the year 1994 and the suit came to be instituted in the year 2002, 6 RSA 368/10 whether the suit instituted is barred by limitation? Ultimately, when the arguments were advanced on

21.08.2012, this Court found that another additional substantial question of law is required for consideration as under: When in the first appellate Court the respondents herein have filed two interim applications under Order XLI Rule 27 CPC to produce additional evidence, an application under Order XXVI Rule 9 CPC for local inspection of the suit property and also another application under Order VI Rule 17 CPC seeking amendment of the written statement, whether the first appellate Court is justified in looking into the contents of the documents produced without giving an opportunity to the other side to produce his evidence and without passing any orders on those applications?

4. After raising the substantial questions of law, during pendency of this appeal, respondent Nos.3 to 5 have also filed an application under the provisions of Order XLI Rule 27 CPC seeking permission to produce the copies of the orders passed by the Appellate Tribunal, 7 RSA 368/10 grant Order passed by the Special Deputy Commissioner for Inams Abolition, Kolar Circle and the order passed by the Tahsildar, Bangalore East Taluk, Krishnarajapuram.

5. I have heard learned counsel for both the parties.

6. It is the contention of learned counsel for the appellant that when respondents 3 to 5 moved applications under the provisions of Order XLI Rule 27 CPC., Order XXVI Rule 9 CPC and Order VI Rule 17 CPC., the first appellate Court did not pass any Order on these applications and therefore, he claims that the Judgment of the first appellate Court without allowing the said applications, referring to the documents produced by respondents 3 to 5 is utterly illegal and is liable to be set aside. Per contra, learned counsel for the respondents submits that the first appellate Court has considered the documents produced along with the application filed under Order XLI Rule 27 CPC. As the said documents were necessary to enable the first appellate Court to pronounce the Judgment and as the said documents were considered under the provision of Order XLI Rule 27 CPC., 8 RSA 368/10 there was no question of any opportunity being given to the appellant herein.

7. It is well-established principle of law that whenever an interim application is filed during the pendency of the appeal, the appellate Court has to pass Orders either allowing the application or rejecting it. Pronouncing the Judgment without any orders on the interim application itself is erroneous and illegal. In this context, if the records before the first appellate Court are perused, respondents 3 to 5 herein who were the appellants before the first appellate Court filed I.A. No.IV under Order XLI Rule 27 CPC seeking permission to produce as many as 6 documents and the production of these documents were objected by the appellant herein by filing objection statement. Further I.A. No.VIII was filed under the provisions of Order XXVI Rule 9 CPC., requesting the first appellate court to appoint a Commissioner for local inspection of the suit property and to submit a report. The appellant herein has filed objections to the said application as well. Another application I.A. No.X was filed under Order XLI Rule 27 CPC is filed by respondent Nos.3 to 5 herein, seeking permission to produce as many as 7 documents. The 9 RSA 368/10 appellant herein objections application. Another application I.A. No.XII was filed under Order XLI Rule 27 CPC was filed by respondent Nos.3 to 5 herein seeking permission to produce as many as 7 documents. The appellant herein filed objections to the said application. Respondents 3 to 5 herein have also filed application I.A. No.XIII under Order VI Rule 17 CPC r/w. Order XLI Rule 27 CPC seeking to amend the written statement. The appellant herein also filed objections to this application as well.

8. Though so many applications referred to supra were filed by respondents 3 to 5 herein and the said applications were objected by the appellant herein, the first appellate Court even though referred some of the documents produced by respondents 3 to 5 herein while appreciating the evidence, neither passed any Order either rejecting it or accepting it. Even so far as the applications filed under Order XXVI Rule 9 CPC and under Order VI Rule 17 CPC., no orders have been passed by the first appellate Court. So, the ultimate Judgment rendered by the first appellate Court in the absence of any Orders on these applications is erroneous and illegal. It is for these reasons that the Judgment and 10 RSA 368/10 Decree of the first appellate Court will have to be set aside.

9. So far as the other substantial question of law/additional substantial question of law raised by this Court in the appeal is concerned, it is relevant to note that the said contentions will have to be taken into consideration only after the first appellate Court passes appropriate Orders on the aforesaid applications. If the said applications are allowed, an opportunity will have to be given to both the parties to produce evidence and in case if the applications are rejected, then only the appellate Court can proceed on with the merits of the case and dispose of the appeal. Therefore, no opinion can be expressed on the other substantial question of law/additional substantial question of law raised by this Court. So far as the applications filed before this Court under the provisions of Order XLI Rule 27 CPC by respondents 3 to 5 herein are concerned, they have sought to produce copy of the Order of re-grant passed by the Special Deputy Commissioner for Inams Abolition, Kolar Circle, in relation to the suit property, as the other applications are also pending before the first appellate Court, they are at liberty to move the first appellate 11 RSA 368/10 Court by filing an application seeking permission to produce the copy of the re-grant Order as well. The first appellate Court can consider all these applications and pass appropriate Orders at appropriate time and in accordance with law. In the result, the appeal is allowed. The Judgment and Decree passed by the first appellate Court in R.A. No.63/2009 dated 08.12.2009 is set aside and the matter is remitted back to the first appellate Court to pass appropriate Orders as aforesaid and dispose of the appeal in accordance with law. The parties are at liberty to take up any contentions before the first appellate court. All the contentions are left open for the parties before the first appellate Court. So for as the application filed by respondents 3 to 5 herein under Order XLI Rule 27 CPC before this Court is concerned, they are at liberty to file the same before the first appellate Court. As the matter is of the year 2009, the first appellate Court is directed to dispose of the appeal preferably within 6 [six] months from the date of communication of this order. 12 RSA 368/10 To avoid the delay, both the parties are directed to appear before the first appellate Court on 15.09.2012. Sd/- JUDGE. Ksm*