Adaveeshaiah vs H.K. Rangaswamaiah and Others

Ravi V. Malimath, J.—The case of the plaintiffs is that one Kari Ranganaika is their father, who had a brother by name Chikkarangaiah. Chikkarangaiah had a son by name Thopaiah. Kari Ranganaika, Chikkarangaiah and Thopaiah lived together and the suit property was their ancestral joint family property. Kari Ranganaika, Chikkarangaiah and Thopaiah having died, the plaintiffs are the only legal heirs to the suit property; that the defendant, after the death of plaintiffs'' father Kari Ranganaika, forcibly ousted the plaintiffs from the suit schedule property and took possession of the same; that the defendant denied their title over the suit schedule property and refused to hand over possession of the same. The defendant had entered his name in the katha and pahani in collusion with the revenue officials. Aggrieved by the same, an appeal was also filed questioning the entering of the name of defendant. On denial of the defendant acceding to the plaintiffs'' right, title and interest over the suit schedule property, the instant suit was filed for declaration and possession.

On service of summons, the defendant entered appearance and denied the plaint averments. He contends that the Court has no pecuniary jurisdiction to entertain the suit and is barred by limitation. That the suit property belongs to one Chikkaseebaiah and his brother Kempaiah and the original owners have executed the registered Sale Deed in respect of the suit schedule property in favour of his father Doddananjappa on 9.9.1967; that the vendors of his father have sold the suit schedule property for Rs. 500/- and put his father in possession of the same ever since then, they are in possession and enjoyment of the suit schedule property; that the plaintiffs, taking advantage of the situation are projecting themselves as the legal representatives of one Thopaiah and attempting to knock off the properties; that the defendant''s father''s vendors Chikkaseebaiah and Kempaiah belonged to Adi-Karnataka community by caste and plaintiffs belong to Naika community. They are no way concerned with one another. Plaintiffs have concocted a false story and presented the suit.

On the basis of the pleadings, the trial court framed the following issues:

"i) whether the plaintiffs prove that they are the owners of the suit schedule property?

ii) whether plaintiffs have proved that defendant forcibly came in possession of suit schedule property?

iii) whether plaintiffs are entitled for declaration and possession as prayed for?

iv) whether defendant proves that suit is barred by limitation?

v) whether defendant proves that this court has no pecuniary jurisdiction to entertain and decide the suit?

vi) what order or decree?"

In support of the case, plaintiff No. 1 was examined as PW-1 and four other witnesses and marked 16 documents. Issues 1, 2, 3 and 5 were held in negative and issue No. 4 was held in affirmative. Suit was dismissed. Aggrieved by the same, the plaintiffs filed an appeal. The appeal was allowed. The judgment and decree of the trial court was set aside and the suit of the plaintiffs was decreed.

The appellate court decreed the suit declaring that the plaintiffs are the owners of the suit schedule property and directed the defendant to hand over vacant possession of the suit schedule property within two months. Hence, the present second appeal by the defendant.

By an order dated 10.4.2013, the appeal was admitted to consider the following substantial questions of law:

"whether the lower appellate court had erred in law in rejecting the registered sale deeds at Exs. D-1 and D-3?" 7. Both the learned counsel submits that the question of law requires to be re-framed.

I have heard learned counsels on the same. Hence, the appeal is considered on the following substantial question of law:

"whether the judgment of the first appellate court is in accordance with the mandatory provisions of Section 96 of CPC?" 9. Learned counsel for the appellant-defendant contends that the appellate court fell in error in decreeing the suit of the plaintiffs rather than considering the merits and demerits of the plaintiffs case vis-�-vis the pleadings and evidence. The trial court bestowed its entire attention on the case of the defendant. There is no consideration at all of the case of the plaintiffs. It is plaintiffs who have to establish their case of ownership and thereby seek a necessary decree. The appellate court therefore, fell in error in considering the weakness of the defendant''s case and thereby decreeing the suit of the plaintiffs. Therefore, there is failure of the appellate court in considering the case of the plaintiffs. Hence, the substantial question of law be answered in his favour by dismissing the suit.

On the other hand, learned counsel for the respondents/plaintiffs contends that the judgment and decree of the first appellate court is right in law and is in tune with Section 96 of CPC having considered the case of the plaintiffs. The appellate court has also considered the case of the defendant. Therefore, it is incorrect to hold that the case of the plaintiffs has not been considered by the first appellate court.

Heard learned counsels and examined the records.

I have considered in depth, the judgments of both the courts below. Various reasons are assigned by the trial court while answering the five issues set up for consideration. On the suit being dismissed, the plaintiffs filed an appeal. The appeal was required to be considered in terms of the mandatory provisions of Section 96 of CPC. On the contrary, what the appellate court has done is that it has kept aside the plea and the evidence of the plaintiffs and has gone about discussing the merits and demerits of the defendant''s case. Except narrating the case of the plaintiffs in para 10 and the initial sentences in para 11 of the judgment, there does not appear to be a fruitful discussion with regard to the plaintiffs case. The case of the plaintiffs is based on their title to the property having acquired it from their ancestors. In support of the same, he relies on his evidence as well as documentation to show that they are ancestors of the deceased Toppaiah. That the property was inherited from him. Therefore, they are the owners. The first appellate court should have rightly considered the reasonings assigned by the trial court which held the issues contrary to the case of the plaintiffs. The trial court for reasons recorded by it, declined to accept the plea that the property was lawfully inherited by the plaintiffs. The trial court accepted Ex. D-1, the Sale Deed in favour of the defendant. The first appellate court should have applied its mind. It should have considered the evidence led in by the plaintiffs in order to ascertain whether the plaintiffs lawfully acquired the properties from their ancestors. On the contrary, there has been absolutely no discussion at all by the appellate court. It has gone into substantial depth on the evidence of defendant as well as the documentation produced by them.

I am of the considered view that the view of the appellate court would be of no consequence on its failure to consider the case of the plaintiffs. There is no application of mind to the case of the plaintiffs. It is the plaintiffs who have come to the court and it is they who have to establish their case. The weakness or otherwise of the defendant''s case cannot form the basis of a decree in favour of plaintiffs. This is the error committed by the appellate court. The suit has been decreed not on the strength of the case of the plaintiffs but on the weakness of the defendant''s case. Therefore, I have no hesitation to hold that the judgment of the first appellate court runs contrary to the mandatory provisions of Section 96 of CPC. It is only just and necessary that the first appellate court being the last court of facts, re-appreciates the evidence and material on record and thereafter accords its reasons for the same.

Consequently, the substantial question of law is answered by holding that the first appellate court committed an error in decreeing the suit of the plaintiffs, contrary to the provisions of Section 96 of CPC.

On answering the substantial question of law, the judgment and decree dated 5.1.2011 passed by the I Additional District Judge, Tumkur, in R.A. No. 253/2007 is set aside. The matter is remanded to the first appellate court for a fresh consideration in accordance with law in terms of the observations made herein.

The parties to appear before the Court on 16.3.2015. In view the of long pendency of the dispute, both parties undertake that they will not seek any adjournment in the disposal of the appeal. Consequently, the appellate court shall make an endeavor to hear the parties and dispose off the appeal by the end of September, 2015. Parties to bear their costs.