Venkataravanappa vs T.M. Venkatesh Gowda

A.V. Chandrashekara, J.—Appellant is the lone plaintiff in an original suit bearing O.S.48/97 pending on the file of Civil Judge (Senior Divn.), Kolar. Respondents herein were defendants in the said suit. The 1st respondent is the legally husband of the 2nd respondent.

The suit for the reliefs of declaration and permanent injunction in O.S.48/97 came to be decreed after contest on 10.11.2004, against which appeal was filed before the learned district judge which was withdrawn and transferred to Fast Track Court-III. The appeal was allowed in entirety and the judgment and decree has been set aside, consequently dismissing the suit. It is this divergent judgment which is assailed on various grounds.

Parties will be referred to as plaintiff and defendants as per their ranking in the trial court.

The facts leading to the filing of the present suit are as follows:

Plaintiff is the son of Latel Ajjabeerappa, who was a resident of Sunnanguru village of Mulabagal taluk, Kolar District. The schedule property absolutely belonged to him. He was living in the house put up in the schedule property till his death. He lost his wife at an early age. Plaintiff having lost his mother at an early age, was fostered by his relative at Maddinayakanhally.

The case of the plaintiff is that though he was living in Maddinayakanahalli, he was often coming to Sunnanguru village and was residing for few days in the schedule property and was looking after schedule property. Since defendants tried to interfere with the peaceful possession and enjoyment on the basis of the concocted documents, he has filed the suit for relief of declaration of title and permanent injunction. Property in question is stated to have been included in the V.P. Katha, but still the katha stands in the name of plaintiffs'' father Ajjabeerappa.

Defendants chose file a detailed written statement denying all the material averments. According to them, plaintiff is not at all in possession of the schedule property and left the village when he was hardly 3-4 months old. According to them, plaintiff has included their property in the boundaries shown in the plaint. According to them, boundaries of schedule property are false and incorrect. Plaintiffs'' grand mother was one Munemma and Mindahalli Papakka is the younger sister of Munemma. According to the defendants, lady by name Papakka belonged to Kuruba caste while Sannamunemma was a Vokkaliga. Averment that Ajjabeerappa was in lawful possession has been specifically denied. It is averred that plaintiff has been living in Maddinayakanahalli which is 20 kms distance away from Sunnanguru Village. Defendant No. 2 is state to be in lawful possession of the property. With these pleadings, they requested for dismissal of the suit.

On the basis of the above pleadings, following issues came to be framed by the Trial Court:

"1. Whether the plaintiff proves that he is the owner and in lawful possession of the suit schedule property?

Whether the defendants prove that the plaintiff has given wrong boundary to the suit schedule property including their properties bearing new Kaneshumari No. 117 and old Kaneshumari No. 12 as contended in para-7 of the written statements?

Whether the plaintiff is entitled to the relief sought for?

What decree or order?"

On behalf of the plaintiffs, his GPA holder is examined as PW-1 and in all 16 exhibits have been marked. On behalf of the defendants, defendant No. 1 has been examined as DW-1 and one more witness have been examined as DW-2 and as many as 12 exhibits have been marked.

After hearing the learned Counsel for the parties, the learned Judge of the trial Court has answered issues 1 in the affirmative and issue 2 in the negative consequently, dismissed the suit. Against the said judgment and decree dated 10.11.2001, regular appeal was filed under Section 96 of CPC in R.A.57/2004. Several grounds had been urged in the appeal memo filed under Section 96 of CPC.

On hearing the arguments, the First Appellate Court has formulated following points:

"1. Whether the plaintiff proves that he is the exclusive owner of the suit schedule property?

Whether the plaintiff proves that he was in exclusive lawful possession of the suit schedule property on the date of the suit?

Whether the plaintiff is entitled for the reliefs claimed?

Whether the order of the lower court is sustainable?

What Order?"

All the points framed by the First Appellate Court have been answered in the negative and ultimately, appeal came to be allowed by a considered judgment dated 8.8.2006. It is this judgment which is called in question on various grounds as set out in the appeal memo.

After hearing the learned counsel for the appellant, following substantial questions of law has been framed on 17.3.209:

"Whether the findings rendered by the Lower Appellate Court in reversing the judgment and decree of the Trial Court admits of perversity in so far as appreciation of evidence available on record?"

Heard the learned counsel for the parties at length.

What is argued before this Court by the learned counsel for the appellant is that First Appellate Court, being the final court of facts, has not properly reassessed the entire evidence on the touch stone of intrinsic probabilities and that it has not framed proper points for consideration as per the mandate of Order 41 Rule 31(a) of CPC. It is further argued that the Trial Court has answered issue No. 2 in the negative and that finding has become final. It is further argued that the father of the plaintiffs was in possession of the schedule property even after the death of his wife. It is ununderstandable as to how defendants could be in possession. He has further argued that he has produced overwhelming evidence in regard to acquisition of title and being in possession of the same and they have virtually ignored by the First Appellate Court.

Per contra the learned counsel for the respondent has supported the judgment of the First Appellate Court. He has argued that the First Appellate Court has adopted right approach to the real state of affairs. The First Appellate Court has given valid and cogent reasons to upturn the well considered judgment of the Trial Court.

Reasons

As per the decision of Hon''ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., , the First Appellate Court must come to close quarters and assign its own reasons, if it wants to upturn a well considered judgment of the trial Court. It has to assign or give cogent reasons as to where the trial Court has gone wrong and the procedure to be followed.

On going through the judgment of the First Appellate Court, points so framed are repetition of the issues framed by the Trial Court under 41 Rule 31(a) of CPC. The First Appellate Court is expected to frame proper points for consideration based on the grounds urged in the appeal memo and further to frame points on the contentions raised.

Taking an holistic view of the ground urged and contentions raised in the appeal memo, proper points have to be framed by the First Appellate Court lest this Trial Court will be denied of an opportunity of viewing the case in right perspective.

In the case of Bangarappa Vs. Rudrappa Since Deceased by His L.R. and Thippamma Since Deceased by Her L.R. R2 (a) Smt. Thippamma, this court has once again reiterated the provisions relating to formulation of proper points for consideration as per Order 41 Rule 31(a) of CPC. It is further reiterated that the entire evidence must be reconsidered and discussed in detail and that exercise should be done only after formulating relevant and proper points for consideration in regard to Order 41 rule 31(a) of CPC.

In the case of Anita M. Harretto Vs. Abdul Wahid Sanaullah, , it is reiterated that the First Appellate Court while, deciding the matter, has to frame proper points for determination. In the case of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, , the Hon''ble Apex Court has observed that the provisions of Order 41 Rule 31 provides specific guidelines for the First Appellate Court as to how the Court has to proceed with the matter. The object of Order 41 Rule 31(a) is to make it incumbent on the First Appellate Court to make proper points for determination.

In the present case, plaintiff has atoned power in favour of his own son Shankar, who has deposed that he is conversant with the facts of the case. Ex. P-2 is the katha extract of the property in question issued in the year 1962-63 and the names of Sannamunemma, Mindahalli Papakka and Ajjabeerappa is found. The name of Ajjabeerappa is found as against property in janjar No. 13. The name of Ajjabeerappa, father of the plaintiff is found in respect of schedule property for the year 1996-97 and there were no arrears of tax. This is evident from Ex. P-3. Ex. P-4 is another extract standing in the name of Ajjabeerappa during 1997 and boundaries found therein forms part of the boundaries mentioned in schedule appended to the plaint. Ex. P-5 is another extract for the year 1987-88 in the respect of the same property number standing in the name of Ajjabeerappa. Ex. P-6 to 14 are the tax paid receipts for having paid tax to the concerned panchayat right from 1965-97. One more house extract of property No. 97 is found in Ex. P-15 for the year 1996-97 and name of Ajjabeerappa is found. He is the kathedar of the house and the connected boundaries mentioned forms part of the boundaries appended to the plaint schedule.

Trial Court has given its finding on issue No. 2 holding that the defendants have failed to prove that the boundaries are incorrect and that finding has not been virtually touched by the First Appellate Court in any manner. Documents so filed by the defendants speak about the property being in possession of the Ajjabeerappa. Just because Ajjabeerappa is no more and his name still continues in the records, it cannot be interfered that the defendants have title to the property and are possession of the same.

Normal course of events is that after the death of the original owner, his legal representative succeed to the property. If plaintiff is not in possession of the property, he could not have paid the taxes in respect of schedule property. Apart from this, PW-2 has admitted that plaintiff had succeeded to 4 acres of lands belonging to Ajjabeerappa and plaintiff has sold the same.

What is asserted by the defendants is that he has got a borewell in the property. But no evidence is placed in regard to the same. Ex. D-1 is the photograph to show that borewell is dug. It cannot be accepted since the exact place where the borewell is dug is not known. Ex. D-8 is the receipt stated to have been issued by Shwetha Borewells in the name of defendant No. 1 for Rs. 24,750/- on 15.12.1995 in regard to drilling of borewell. Mere production of the document like Ex. D-8 would be insufficient. There should be corroborative evidence about the exact place where the borewell is dug. Ex. D-8 pertains to borewell dug in schedule property.

DW-1 has admitted that plaintiffs father was in possession of the schedule property. Anyhow Ajjabeerappa, father of the plaintiff died long after death of his wife. Evidence of DW-1 is very relevant. He has admitted that the concerned Secretary of the Panchayat has mentioned Kaneshwari properties and entered names of the persons, who are in possession but that admission is not taken into consideration. Lot of credence has to be attached to Ex. P-2 to 15 while reassessing the evidence. The learned Judge has attached more significance to the relationship of Sannamunemma, Papakka with Ajjabeerappa and has not taken into consideration, the title that Ajjabeerappa had while he was residing in the schedule property.

Even otherwise the name of the defendant No. 1 is found in respect of property bearing No. 117 on the basis of the Tahsildar orders for the year 1992-93. Similarly the number of the property mentioned in Ex. D-5 and 6 is different from suit schedule property.

Suffice to state that First Appellate Court has not framed proper points for consideration and it has misdirected itself while upturning the well considered judgment of the Trial Court. It has not pointed out where the Trial Court has committed serious error or perversity in decreeing the suit. Suffice to state that while considering the judgment of the Trial Court, though a short judgment could not have been upturned in the manner as found in the judgment of the First Appellate Court. The First Appellate Court has not adopted right approach to the real state of affairs and it has not reassessed the evidence on the touch stone of intrinsic probabilities.

Law laid down in the case of Santosh Harari''s case has not been properly followed in the case. There is absolutely no ground to interfere with the well considered judgment of the Trial Court.

Viewed from any angle, documents produced by the defendants do not support their case in order to connect the alleged possession with plaintiffs property. Hence, the appeal is liable to be allowed.

ORDER

The appeal filed under Section 100 of CPC is allowed. The judgment and decree of the First Appellate Court passed in R.A.57/2004 is set aside. The judgment and decree of the Trial Court passed in O.S.48/1997 are restored.

Parties to bear their costs.