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Judgment
Aravind Kumar, J.—In these two appeals judgment and decree passed in k.A. No. 25/2004 and R.A. No. 29/2004 by Civil Judge (Sr. Dn) dated 6-12-2006 is questioned. The Lower appellate Court by its judgment and decree dated 6-12-2006 allowed the appeal filed by the Plaintiff in O.S. No. 89/2001 and dismissed suit O.S. 58/2001.
One Sri. Kunta Basappa (Plaintiff in O.S. No. 58/2001) filed a suit against Sri. Pali Channappa and his sons seeking relief of declaration and consequential relief of perpetual injunction in respect of house and cattle shed bearing khala No. 101. measuring 20'' x 60'' situated at Bharamasagara village, Chellakere. The first Defendant in O.S. No. 53/2001 Sri. Poojari Channappa @ Pali Chanappa filed a suit against the Plaintiff in O.S. No. 89/2001 i.e., Sri. Kunta Basappa for relief of perpetual injunction in respect of one thatched roof hut bearing khata No. 99 20'' x 20'' situate at Bharamasagara village, Chellakere Taluk.
Sri. Kunta Basappa, Plaintiff in O.S. No. 58/2001 will be hereinafter referred to as Plaintiff and Defendant in O.S. No. 58/2001 Sri. Pali Channappa @ Poojari Channappa will be herein after referred to as Defendant for the sake of convenience. Plaintiff in O.S. No. 58/2001 contended that suit, schedule property is his ancestral property and infront of his house he had erected a cattle shed and name of the Plaintiff is duly entered in the revenue records and he is paying the house tax and as such he claimed to be the owner of the said property. It was contended Defendants attempted to interfere with his possession and cause illegal interference and did not stop such acts inspite of advice of the elders in the village as such Plaintiff contended that he has filed the suit in question.
Defendant on service of suit summons appeared and filed their written statement denying the plaint averments and it was contended that cattle shed is not owned and possessed by the Plaintiff and it is in possession the Defendants. It was contended that khata of the suit property has been assigned as No. 99 and with an intention to grab suit property Plaintiff is claiming right over the same and cattle shed is not part and parcel of Plaintiffs house and his house is situated away from the property in question. The same contention was reiterated in suit, filed by him, namely O.S. No. 89/2001 whereunder permanent injunction was sought for by him against the Plaintiff in respect of property bearing khata No. 99 measuring 20'' x 20''.
On the basis of the pleadings of the parties the trial Court framed the following issues:
O.S. No. 58/2001
(i) Whether Plaintiff proves that, he is the owner in possession of suit schedule property as on the date of suit?
(ii) Whether Plaintiff proves the alleged attempt on the part of Defendant to interference with Plaintiff possession of the suit schedule property?
(iii) Whether Plaintiff is entitled for the relief declaration and permanent injunction?
(iv) What order or decree?
O.S. No. 89/2001
(i) Whether Plaintiff proves that, he is the owner in possession of suit schedule property as on the date of suit?
(ii) Whether Plaintiff proves the alleged interference by the Defendant?
(iii) Whether Plaintiff is entitled for the relief of permanent injunction?
(iv) What order or decree?
These two suits came to be clubbed together and evidence was let in O.S. No. 58/2001 Plaintiff got himself examined as P.W.1 and two witnesses were examined on his behalf and Plaintiff got exhibited Exs.P.l to P.3 and Plaintiff in O.S. No. 89/2001 who is Defendant in O.S. No. 58/2001 got examined as D.W.I and also examined Secretary of the Gramapanchayat as D.Wr.2 and got marked Exs.D.l to D.5. It is to be noted herein that P.W.I who was examined namely examination-in-chief on 29-7-2002, he was cross-examined in part on 7-10-2002 and thereafter for further cross-examination it was adjourned However, P.W. 1 did not tender himself for further cross-examination. Trial Court on appreciation of the pleadings, evidence of the parties by its judgment and decree dated 31-3-2004 dismissed the suit O.S. No. 89/2001 and decreed the suit in O.S. No. 58/2001.
Aggrieved by the said judgment and decrees passed Defendant/s filed two appeals namely R.A. No. 25/2004 and 29/2004. The Lower Appellate Court after considering the arguments advanced by the learned advocates appearing for the parties formulated the following points for its consideration:
(i) Whether Plaintiff in O.S. 58/2001 proves that he is the owner in possession of the suit schedule property?
(ii) Whether Plaintiff in O.S. No. 89/2001 proves that he is in possession of the suit schedule property?
(iii) Whether judgment and decree of the learned trial Judge call for interference?
(iv) What order?
After considering the judgment and decree passed by the trial Court the evidence available on record as also the arguments advanced by the respective Advocates, Lower Appellate Court reversed the findings of the trial Court by allowing the appeal and dismissing the suit O.S. No. 58/2001 and decreeing the suit in O.S. No. 89/2001. It is these two judgments and decree passed by the Lower Appellate Court which is the question in the present appeals.
Though matter is listed for admission by consent of learned advocates appearing for the parties and also taking into consideration that Lower Court records have been secured appeal has been taken up for final disposal.
Mr. B.M. Siddappa, learned Counsel appearing for Appellant would contend that there was no error in the judgment and decree passed by trial Court and Lower Appellate Court on erroneous reappreciation of evidence dismissed suit O.S. No. 58/2001 and decreed suit O.S. No. 89/2001 by contending that Lower Appellate Court was m error in discarding the evidence of P.W.1 on the ground that he was not fully cross examined, inasmuch as the evidence available on record was sufficient enough to come to a conclusion as to whether Plaintiff had proved his title over suit schedule property and Defendant had failed to prove any obstruction by the Plaintiff to the property in question. As such he contends that substantial questions of law formulated in the appeal memorandum would arise for consideration. By way of alternate submission he would also contend that in the event an opportunity is given to the Appellant namely P.W.I Sri. Kuntabasappa he is ready and willing to tender himself for further cross-examination before the trial Court. Learned Counsel Sri. B.M. Siddappa has also filed a memo reiterating his submission made herein above. The said memo is placed on record.
Per Contra Sri. Nagaraj, learned Counsel appearing for the Respondent in these appeals would support, the judgment and decree passed by the Lower Appellate Court and contends that on account of P.W.1 not being fully cross-examined evidentiary value of the evidence tendered by P.W.1 loses its significance and as such he contends that judgment and decree passed by trial court was erroneous and did call for interference at the hands of the Lower Appellate Court. Further he would hasten to add by way of alternate submission that in the event of P.W.1 tendering himself for cross-examination Defendant would cross examine P.W. 1 and undertakes not to tender either further evidence of the Defendants or any other witnesses.
A perusal of the judgment and decree passed by trial Court at paragraph 16 would go to show that trial Court has discarded the evidence of P.W.1 in its entirety. Trial Court has accepted the evidence of P.W.1 on the ground that issue framed in O.S. No. 89/2001 has been answered against the Plaintiff in O.S. No. 89/2001 and as such it decreed the suit in O.S. No. 58/2001. As against this finding, the Lower Appellate Court held that partial evidence of P.W. 1 has no evidentiary value in the eye of law and as such it proceeded to discard the evidence of P.W. 1 in its entirety. And allow the appeal of the Defendant in O.S. 58/2001 and Plaintiff in O.S. 89/2001.
In view of this divergent findings and in view of the memo filed by the learned Counsel for the Appellant that P.W. 1 would tender himself for further cross-examination without formulating the substantial question of law, this Court is of the considered view that the judgment and decree passed by the trial Court as well as the Lower Appellate Court deserves to be set aside and matter be remitted to the Lower Appellate Court namely Civil Judge, (Sr. Dn). Chaliakere to adjudicate R.A. No. 25/2004 and R.A No. 29/2004 afresh by permitting P.W. 1 Kuntabasappa to tender himself for further cross-examination either m person or through Commission (since it is claimed that he is incapable and aged) and after recording the further cross-examination of P.W. 1 the Lower Appellate Court shall reconsider the said evidence and determine and dispose of the appeals on merits and in accordance with law. The said exercise shall be completed by the Lower Appellate Court within a period of three months from the date of receipt of the copy of the judgment of this Court. The ensuing summer vacation is excluded from out of this three months. Ordered accordingly. Registry is directed to transmit the entire records secured to the Court of Civil Judge (Sr. Dn) Challakere forthwith. Learned advocates appearing for the parties would submit that, both the parties would appear before the Lower Appellate Court on 20-4-2011 without awaiting any further notice from the Lower Appellate Court. Accordingly issuance of further notice to the parties by Lower Appellate Court is dispensed with and they are hereby directed to appear before the Civil Judge (Sr. Dn) Challakere on 20-4-2011 without waiting for any further notice. Both parties are at liberty to seek any interim order before Lower Appellate Court if so advised.