Sri. B.M. Venkateshappa vs Sri. B.L. Srinivasa Reddy

A.S. Pachhapure

The appellant has filed this appeal. challenging the judgment and decree Of the Courts below granting permanent injunction in the suit filed by the respondent The facts relevant for the purpose of this appeal are as under:

I will refer to the parties as per their rank before the Trial Court for the purpose of convenience.

The appellant herein is the defendant, whereas, the respondent is the plaintiff who instituted the suit before the Trial Court seeking permanent injunction in respect of the suit land bearing S.No. 44 measuring 3 acres 38 guntas situated at Kurubarahalli Village, Mulbagal Taluk, with the boundaries mentioned therein in the plaint. It was his case that. he was in unauthorized Occupation of the property and that is was regularised in his name and in the circumstances, he claims to be in possession of the property since from the date of regularisation.

The appellant/defendant appeared before the trial Court and filed the written statement contending that he is the absolute owner in possession Of the suit land and that this property was owned formerly by one H.K. Ramachandra lyer and as it was an inam land, the said land was granted in his favour. The defendant entered into an agreement of sale of this suit property and on the basis Of the agreement, he has taken possession-of the pmperty. In these circumstances, it was his contention that the suit for injunction is not maintainable in law, as the plaintiff is not in possession of the suit land. On the basis of these pleadings, the Trial Court framed the following issues:

Whether the plaintiff proves that he is lawful possession of the suit schedule property on the date of suit by way of grant certificate by Tahsildar, Mulbagal?

Whether the plaintiff proves that on first week of December-95 the defendant obstructed the ploughing of the suit schedule property?

Whether the plaintiff proves that he is entitled for relief sought?

For what order or decree?

It is thereafter that the plaintiff examined himself as PW.1 and a witness PW.2 and in the evidence, got marked the documents Exs.P.1 to F.15, whereas the defendant examined himself as DW.1 and other witnesses DWs.2 and 3 and in their evidence got marked Exs.D.1 to D.24. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record, decreed the suit and aggrieved by the same, the defendant preferred an appeal before the Lower Appellate Court in R.A.C. No. 105/2002. During the pendency of the appeal before the Court below, the appellant filed an application under the provisions of Order 41 Rule 27 readwith 151 CPC seeking permission to lead additional evidence by producing documents and the respondent filed objections to the said application. It was his contention that the Assistant Commissioner cancelled the order of regularisation and he intended to produce those orders before the Lower Appellate Court. In these circumstances, he sought for permission to lea.1 the additional evidence.

The Trial Court heard the matter on merits brut has not disposed of the application I.A. No. 3 filed under Order 41 Rule 27 readwith 151 CFC. In these circumstances, the appeal after hearing was dismissed, without. disposing of the interim application. It is in these circumstances, the present appeal is filed.

I have heard the learned counsel for the appellant and the counsel for the respondent is absent.

It is well established principle of law that whenever an application is filed under the provisions of Order 41 Rule 27 readwith 151 CPC, it is necessary for the Appellate Court to consider the Said application and pass appropriate orders. The said application will have to be heard alongwith the merits of the appeal. But the perusal of the judgment of the Lower Appellate Court reveals that it has not decided I.A. No. 3 filed under Order 41 Rule 27 CPC. So, in the absence of any order on the application, the pronouncement of judgment dismissing the appeal itself is improper. As the lower appellate Court vas not justified in disposing the appeal on merits, without hearing the application filed under Order 41 Rule 27 CPC, the appellant has to succeed. Hence, the appeal is allowed: The Judgment and Decree passed by the lower appellate Court in R.A. No. 105/2002 dated 11.01.2007.is set aside and the matter is remitted bark. the iower appellate Court, with a direction to consider the interim application flied under Order 41 Rule 27 CPC along with the merits of the case and dispose of the same in accordance with law. As the matter is of the year 2002 before the lower appellate Court, it shall dispose of the same expeditiously.