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CASE NO.: Appeal (civil)  1349 of 2001

PETITIONER: Basayya I. Mathad

RESPONDENT: Rudrayya S. Mathad & Ors.

DATE OF JUDGMENT: 24/01/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT: JUDGMENT

P. Sathasivam, J.

1)      This appeal is directed against the judgment and order  dated 16.03.1999 of the High Court of Karnataka at Bangalore  in Regular Second Appeal No. 131 of 1999 in and by which the  learned single Judge dismissed the second appeal at the stage  of admission. 2)      BRIEF FACTS: The appellant and Shri Shivayya (since deceased) and two  others were brothers.  Their father owned many properties  apart from being tenant of suit lands.  Their father died in the  year 1952.  According to the appellant, he alone was  cultivating the suit lands as tenant excluding all the brothers.   The properties were divided among the brothers.  The suit  property continued to be in the exclusive possession of the  appellant as the same was a tenanted land.  Under Section 44  of the Karnataka Land Reforms Act, 1974 (hereinafter referred  to as \023the Act\024) all the lands held by or in possession of  tenants stood transferred to and vested in the Government.   Under Section 45 of the Act, tenants were given an option to  be registered as occupants of the vested lands.  It is the claim  of the appellant that in view of the provisions of the Act, the  suit lands, which were in his possession as on 01.03.1974,  stood vested in the Government.  He applied for registration of  the occupancy rights in respect of the suit lands.  The  respondents herein claiming to be the tenant for a part of the  land sought registration of occupancy rights.  The Land  Tribunal, after holding enquiry as required under the  provisions of the Act, allowed the application of the appellant  and rejected the application of the respondents.  Aggrieved by  the same, the respondents filed an appeal before the Land  Reforms Appellate Authority which was also rejected.  The  Appellate Authority found that the appellant herein cultivated  the suit lands and other brothers have never cultivated the  same.  Thereafter, the plaintiff, Shivayya (since deceased), filed  a suit for partition and separate possession of his share from  the suit lands.  On the basis of the evidence on record, the  trial Court dismissed the suit filed by the plaintiff.  The  plaintiff preferred an appeal before the appellate Court which  also confirmed the decree and dismissed the appeal on  29.11.1996.  The plaintiff preferred a second appeal before the  High Court being R.S.A. No. 105 of 1997.  The High Court, by  order dated 10.12.1997, allowed the second appeal and  remanded the matter to the first appellate Court to decide the  same in the light of the finding and conclusion arrived at by it.   The first appellate Court, relying upon the opinion of the High  Court, held that the suit land was granted for the benefit of

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the entire family and the plaintiff is entitled to claim his share  and allowed the appeal on 14.12.1998.  Questioning the  judgment and decree of the first appellate Court, the appellant  preferred R.S.A. No. 131 of 1999 before the High Court.  The  learned single Judge, basing reliance on his opinion in the  earlier second appeal i.e. R.S.A. No. 105 of 1997, which is  binding and final, dismissed the second appeal in limine.   Aggrieved by the judgment and decree of the High Court, the  appellant filed the present appeal before this Court. 3)      Heard Mr. Shankar Divate, learned counsel appearing for  the appellant and Mr. S.N. Bhat, learned counsel appearing for  the respondents, perused the entire annexures and other  relevant materials filed before this Court.              4)      Before considering the impugned judgment of the High  Court, it is useful to refer the notice issued by this Court on  15.12.1999  when S.L.P.(c) No. 13747/1999 came up for  hearing.  The order passed, while issuing notice to the  respondents, reads as under: \023Issue notice to show cause why the earlier judgment of the  High Court dated 10.12.1997, giving the finding that the  property shall be treated as a family property, should not be  set aside on the ground that interference on question of fact  was not permissible under Section 100 CPC.  Status quo as  of possession on the spot shall be maintained.\024

From the above order, it is clear that the respondents were put  on notice to the effect that while hearing this special leave  petition the correctness of the earlier finding in the judgment  of the High Court dated 10.12.1997  in R.S.A. No. 105 of 1997  would be gone into by this Court.  In view of the same, though  the decision in R.S.A. No. 105 of 1997 has not been challenged  in this Court, in view of the reasons which we refer hereunder  this Court is justified in considering the same.  5)      As observed in the notice issued by this Court on  15.12.1999, let us first consider whether the learned Judge of  the High Court is justified in interfering with the factual aspect  and concurrent findings of both the Courts below and ultimate  order of remand is warranted.  We carefully analysed the order  of the High Court dated 10.12.1997 passed in R.S.A. No. 105  of 1997.  The said second appeal came to be filed by the  plaintiff-appellant against the dismissal of a suit and the  learned Judge after referring the unreported decision of the  Division Bench of the same Court in R.F.A. No. 189 of 1996  dated 9.8.1996 directed the contesting respondent for  production of an \023order of the grant\024 passed by the Authority  and on going through the same arrived at a conclusion that  the findings of the Courts below were contrary to the \021grant\022  and set aside the same.  In paragraph 3 of his order, the  learned Judge concluded, \023The Court shall treat this property  also as a family property partible among the members of the  family.\024  By observing so, remanded the matter to the first  appellate Court with a direction to dispose of the same in  accordance with law in the light of the decision referred to in  paragraph 2 as well as his finding in paragraph 3. 6)      Learned counsel appearing for the appellant vehemently  contended that the order of the learned Judge dated  10.12.1997 allowing the second appeal without framing the  substantial question of law in terms of Section 100 C.P.C.  cannot be sustained.  He also submitted that forgetting that  the learned Judge was hearing a second appeal filed against  the concurrent findings of both the Courts below, received a  copy of the \023order of grant\024 passed by the authority,  entertained the same and basing reliance on it, set aside the  judgment and decree of both the Courts below and remanded  the matter to the first appellate Court for fresh consideration.  

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Learned counsel commented that the course adopted by the  learned Judge is unknown to law and is not justified in  reversing the concurrent finding of the Courts below by merely  perusing a document which was entertained without following  the recourse provided under Order XLI Rule 27 C.P.C., the  High Court committed an error in accepting the document and  upsetting factual findings arrived at by the Courts below.  It is  the argument of the learned counsel for the appellant that  because of the erroneous conclusion by the High Court, the  lower appellate Court has no other option except to follow the  same and allowed Regular Appeal No. 9 of 1994 and decreed  the suit of the plaintiff in O.S. No. 517 of 1989. 7)      Mr. S.N. Bhat, learned counsel appearing for the  respondents, submitted that inasmuch as no appeal had been  filed against the decision of the High Court in R.S.A. No. 105  of 1997, the correctness or otherwise of the said order cannot  be canvassed in this appeal.  It is true that against the order of  remand in R.S.A. No. 105 of 1997, the appellant has not filed  appeal before this Court.  However, after remand, the first  appellate Court, based on the direction of the High Court,  allowed the appeal and decreed the suit which was challenged  by way of second appeal being R.S.A. No. 131 of 1999 before  the High Court.  As stated earlier, the High Court, by  judgment and order dated 16.3.1999, dismissed the second  appeal in limine which is the subject-matter of the present  appeal. 8)      On going through the entire materials, we are of the view  that this Court is justified in considering the earlier order of  the High Court dated 10.12.1997 in R.S.A. No. 105 of 1997 for  the following reasons:     i)      It is not in dispute that the parties in the earlier  proceeding, namely, R.S.A. No. 105 of 1997 and in the  impugned proceeding - R.S.A. No. 131 of 1999 are one  and the same.  Interestingly, the very same learned  Judge had passed both the orders.  The appellant had  placed judgment of the High Court rendered in R.S.A. No.  105 of 1997 as Annexure-P2 which is available on page  35 of the paper-book.  A perusal of the same shows that  after reproducing unreported decision, namely, R.F.A.  No. 189 of 1996 dated 09.08.1996 (Jarappa Poojari  and Others vs. Smt. Ramakku and Others), the  learned Judge called the respondent for production of the  \023order of grant\024 passed by the authority and after  perusing the same arrived at a finding that the suit  property also be treated as a family property and partible  among the members of the family.  By arriving at such a  conclusion, he set aside the orders of both the Courts  below.  It is not in dispute that the learned Judge heard  and disposed of the second appeal filed under Section  100 CPC which reads as under:- \023100. Second appeal.- (1) Save as otherwise expressly  provided in the body of this Code or by any other law for the  time being in force, an appeal shall lie to the High Court  from every decree passed in appeal by any Court subordinate  to the High Court, if the High Court is satisfied that the case  involves a substantial question of law.  

(2) An appeal may lie under this section from an appellate  decree passed ex parte.   

(3) In an appeal under this section, the memorandum of  appeal shall precisely state the substantial question of law  involved in the appeal.

(4) Where the High Court is satisfied that a substantial

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question of law is involved in any case, it shall formulate  that question.  

(5) The appeal shall be heard on the question so formulated  and the respondent shall, at the hearing of the appeal, be  allowed to argue that the case does not involve such  question:

Provided that nothing in this sub-section shall be deemed to  take away or abridge the power of the Court to hear, for  reasons to be recorded, the appeal on any other substantial  question of law, not formulated by it, if it is satisfied that the  case involves such question.\024

The above provision was amended and incorporated by  amending Act 104 of 1976 which came into effect from  01.02.1977.  The learned Judge disposed of the second  appeal being R.S.A. No. 105 of 1997 on 10.12.1997 well  after the amendment to Section 100.  It is clear from the  above provision that only if the High Court is satisfied  that the case involves a substantial question of law, after  formulating questions and hearing those questions so  formulated dispose of the same based on the materials  placed before it.  This Court, in a series of decisions, has  held that allowing a second appeal without framing  substantial question of law is clearly contrary to the  mandate of Section 100 CPC vide: (a)     Gian Dass vs. Gram Panchayat, Village Sunner  Kalan and Others, (2006) 6 SCC 271; (b)     Joseph Severance and Others vs. Benny Mathew  and Others, (2005) 7 SCC 667; (c)     Sasikumar and Others vs. Kunnath Chellappan  Nair and Others, (2005) 12 SCC 588; (d)     Chadat Singh vs. Bahadur Ram and Others,  (2004) 6 SCC 359; (e)     Kanhaiyalal and Others vs. Anupkumar and  Others, (2003) 1 SCC 430; (f)     Civil Appeal No. 2836 of 2001 - Town Planning  Municipal Council vs. Rajappa & Anr. dated  08.01.2007 (Dr. Justice Arijit Pasayat and Justice  P. Sathasivam)  In view of the settled legal position and of the fact that  the High Court has not adhered to the same, failed to  formulate substantial question of law thereby committed  an error in allowing the second appeal.  On this ground,  the judgment and order of the learned Judge in R.S.A.  No. 105 of 1997 is liable to be set aside.   ii)     Apart from the above infirmity, the High Court has  committed an error in interfering on a question of fact  which was not permissible under Section 100 CPC vide                         P. Chandrasekharan and Others vs. S. Kanakarajan  and Others, (2007) 5 SCC 669. iii)    It is relevant to point out that it is impermissible for  a High Court to arrive at a decision that the suit property  forms part of family property partible among the  members of the family without adverting to acceptable  materials placed before it in terms of the procedure and  in accordance with law.  On this ground also, the  decision of the High Court is liable to be interfered with.   iv)  The third infirmity is that though the parties to the  proceeding can produce a document as additional  evidence even in Appellate Court, undoubtedly, they have  to adhere and satisfy the mandates provided under Order  XLI Rule 27.  For clarity, we hereby reproduce the same.   \02327. Production of additional evidence in Appellate

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Court.- (1) The parties to an appeal shall not be entitled to  produce additional evidence, whether oral or documentary,  in the Appellate Court.  But if-

(a) the Court from whose decree the appeal is preferred has  refused to admit evidence which ought to have been  admitted, or  

(aa) the party seeking to produce additional evidence,  establishes that notwithstanding the exercise of due  diligence, such evidence was not within his knowledge or  could not, after the exercise of due diligence, be produced by  him at the time when the decree appealed against was  passed, or

(b) the Appellate Court requires any document to be  produced or any witness to be examined to enable it to  pronounce judgment, or for any other substantial cause,  

the Appellate Court may allow such evidence or document to  be produced, or witness to be examined.  

(2) Wherever additional evidence is allowed to be produced  by an Appellate Court, the Court shall record the reason for  its admission.\024     

It is clear that parties to the lis are not entitled to  produce additional evidence as of course or routine but  must satisfy the conditions stated in sub-clauses  (a)&(aa).  Admittedly, such recourse has not been  resorted to neither by the party concerned nor adhered  those principles by the High Court.  Paragraph 3 of his  order shows that the learned Judge verified the  document produced on his direction without complying  the mandate as provided under Rule 27 of Order XLI.   Hence, we are of the view that the finding of the learned  Judge based on a document produced at the time of  argument de hors to Rule 27 referred above cannot be  sustained in the eye of law.  In such circumstances, his  ultimate conclusion treating the suit property as a family  property partible among the members of the family is  also liable to be set aside.  In fact, sub-clause (2) of Rule  27 mandates that wherever additional evidence is allowed  to be produced by an Appellate Court, it shall record the  reason for its admission.  It is needless to mention that  the High Court neither followed those conditions for  production of additional evidence nor recorded the reason  for basing reliance on the same.         9)      It is relevant to point out that in the ultimate  paragraph (para 4), the learned Judge, after remitting the  matter to the first Appellate Court directed  \023to dispose of  the matter in accordance with law in the light of the  decision mentioned (supra) and my finding rendered  above\024.  Based on the said positive direction, the first  Appellate Court has no other option and, by judgment  dated 14.12.1998, allowed Regular Appeal No. 9 of 1994  and granted preliminary decree for partition.  10)     Though Mr. S.N. Bhat, learned counsel for the  respondents reiterated his earlier stand that the decision  in R.S.A. 105 of 1997 cannot be gone into in the absence  of appeal against the same, in the light of our above- mentioned discussion, reasons thereon coupled with the  infirmities pointed above and the earlier decision is not in  terms of Section 100 as well as Order XLI Rule 27 CPC,  we are unable to accept the said objection and pass the

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following order:- 1.      The finding of the High Court in RSA No. 105 of  1997 dated 10.12.1997 treating the suit property  also as family property partible among the members  of the family is set aside.  2.      Since the lower Appellate Court i.e. Civil Judge,  Senior Division, Gokak allowed the Regular Appeal  No. 9 of 1994 on 14.12.1998 based on the finding  and positive direction of the High Court dated  10.12.1997 in RSA No. 105 of 1997, his ultimate  decision allowing the appeal and granting  preliminary decree is also set aside.  3.      In view of our conclusion in sub-paras 1 & 2, the  impugned order of the High Court dated 16.03.1999  in R.S.A. No. 131 of 1999 is set aside. 4.      The Civil Judge, Senior Division, Gokak is directed  to restore Regular Appeal No. 9 of 1994 on his file  and dispose of the same afresh uninfluenced by any  of the observation made by us.  5.      Both parties are at liberty to file appropriate  petition, if they so desire, for production of any  material as additional evidence subject to satisfying  the conditions prescribed in Rule 27 of Order XLI  CPC.   6.      It is made clear that we have not expressed  anything on the merits of the claim of either parties.   Our above conclusion mainly relates to the illegality  or irregularity in the order of the High Court in  allowing the second appeal (RSA No. 105 of 1997) 7.      Taking note of the fact that suit for partition was  instituted even in the year 1989 and yet to reach its  finality, we request the Civil Judge, Gokak to  dispose of the appeal, as directed above and in  accordance with law within a period of six months  from the date of receipt of copy of this judgment.

11)     The civil appeal is allowed on the above terms.  No  costs.