Boregowda vs Ramaswamy

Ram Mohan Reddy, J.—Defendants in O.S. No. 420/1991 having suffered judgment and decree dated 18.01.2007 of the Prl. Civil Judge (Jr. Dn.), Channarayapatna, preferred R.A. No. 14/2007 before the Fast Track Court at Channarayapatna, whence the appeal along with application under Order 41 Rule 27 of the CPC was dismissed by judgment and decree dated 27.08.2010. Hence this second appeal.

This appeal was admitted on 22.04.2013 to consider the following substantial question of law.

Whether the lower appellate court had erred in law in rejecting the application filed for production of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure?:

When appeal was heard on 05.04.2014, it was noticed from the lower court record that I.A. No. 4 filed under Order 41 Rule 27 of CPC by the appellant is not forthcoming and therefore, the appellants were permitted to file copies of the same along with a memo. Hence, the memo dated 07.04.2014 enclosing copies of the I.A. and its annexure. The same is taken on record. Learned Counsel for respondents would have no opposition for taking on record, the memo.

Heard the learned Counsel for parties, perused the pleadings and examined the judgment and decree of the Courts below. Suffice it to notice few relevant facts that one Gangadhara, brother of first appellant and husband of 2nd appellant instituted O.S. No. 9/1991 arraigning Ramaswamy, S/o. Krishnappa as defendant, for bare injunction describing the suit schedule property as land bearing Sy. No. 12, Block I, measuring 3 acres of Kumbarahalli, Bagooru Hobli, Channarayapatna bounded on the;

East by: Kalenahalli road;

West by: remaining land in Sy. No. 12,

North by: Land in possession of Javaramma;

South by: Land in possession of Byatalakshmamma.

That suit was allowed by judgment and decree dated 21.04.2001 recording a finding that the plea of defendant Ramaswamy over grant of land in favour of his father by name Krishnappa was shown as four acres in Sy. No. 18 in terms of the copy of the grant certificate and that Sy. No. 8 and Sy. No. 12 are shown separately in the sketch and further that Sy. Nos. 18 and 12 are adjacent to each other while Sy. No. 18 is located on the western side of Sy. No. 12. That defendant, in his examination-in-chief admitted the fact that on the eastern side of his property was the property of Gangadhara, the plaintiff, and therefore, the said Court recorded a finding that plaintiff was cultivating the land in Sy. No. 12, while defendant was granted land in Sy. No. 18.

That Ramaswamy, none other than the respondent herein instituted O.S. No. 420/1991 for declaration and injunction describing the suit schedule property as land in sy. No. 12 renumbered as 145 measuring 4 acres bounded on the;

East by: road;

West by: Beeraiah's land;

North by: Thimmaiah's land;

South by: Byatachari's land;

inter alia alleging that 4 acres of land was part and parcel of 3 acres of land granted to the appellants in Sy. No. 12.

The aforesaid facts were relevant facts for consideration and appreciation of the finding in O.S. No. 9/1991 by the Lower Appellate Court, hence I.A. No. 4 under Order 41 Rule 27 of the CPC was filed by the appellants to adduce additional evidence by production of the certified copy of the judgment and decree in O.S. No. 9/1991.

A perusal of paragraph 35 of the judgment and decree of the Lower Appellate Court clearly demonstrates that there is no application of mind to the contents of the judgment and decree in O.S. No. 9/1991 sought to be produced as additional evidence and on that score alone, this appeal deserves to be allowed.

The substantial question of law is answered in the affirmative.

In the result, this appeal is allowed in part. The judgment and decree of the Lower Appellate Court is set-aside. I.A. No. 4 filed under Order 41 Rule 27 of CPC is allowed. Parties are at liberty to adduce evidence, both oral and documentary on the additional evidence sought to be placed on record before the Lower Appellate Court. The proceeding is remitted to the Lower Appellate Court for fresh consideration. Parties, since represented by learned Counsel, are directed to be present before the Lower Appellate Court on 05.06.2014 without further notice.