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IN THE HIGH COURT OF

DHARWAD BENCH

DATED THIS THE 31 st DAY OF JANUARY 2014 PRESENT THE HON’BLE MR. JUSTICE A.V. CHANDRASHEKARA

M.S.A. No.650/2012 c/w M.S.A. CR. OB. No. 26/2013

IN M.S.A. No.650/2012

BETWEEN:

SRI SHIVAPUTRAPPA, S/O HANAMAPPA ILAGER, AGE: 64 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: . - APPELLANT (BY SRI G.N. NARASAMMANAVAR, ADVOCATE)

AND:

1. PRABHAPPA HANAMAPPA ILAGER, AGE: 69 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI.

2. PRAHALADAPPA HANAMAPA ILAGER, AGE: 66 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI.

3. SMT. SHANTAVVA W/O PRABHAPPA ILAGER, AGE: 54 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI.

4. KALLAPPA PRABHAPPA ILAGER, AGE: 29 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI.

5. SHEKHAPPA HANAMAPPA ILAGER, DEAD - NO LRS. 2

6. NAGAPPA RAMAPPA ILAGER, AGE: 74 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI. - RESPONDENTS (BY SRI GURURAJ R. TURUMARI, ADVOCATE)

THIS M.S.A. IS FILED UNDER ORDER 43 RULE 1(U) OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.06.2012 PASSED IN R.A. NO. 21/2011 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, LAXMESHWAR ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DEFEE DATED 22.02.2011 PASSED IN O.S. NO.49/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC, LAXMESHWAR, DECREEING THE SUIT FILED FOR SEPARATE POSSESSION & ETC.

IN M.S.A. CR. OB. NO. 26/2013

BETWEEN:

SMT. SHANTAVVA W/O PRABHAPPA ILAGER, AGE: 54 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI. DIST. GADAG. - CROSS OBJECTOR (SRI LAXMAN T. MANTAGANI, ADVOCATE)

AND

1. SHRI SHIVAMURTHAPPA, S/O HANUMAPPA ILAGER, AGE: 64 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, DIST.: GADAG.

2. SHRI PRABHAPPA, S/O HANUMAPPA ILAGER, AGE: 69 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, DIST.: GADAG.

4. SHRI PRAHLADAPPA, S/O HANUMAPPA ILAGER, AGE: 66 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, 3

DIST.: GADAG.

4. SHRI KALLAPPA S/O PRABHAPPA ILAGER, AGE: 29 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, DIST.: GADAG.

5. SHEKAPPA S/O HANUMAPPA ILAGER, AGE: 59 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, DIST.: GADAG.

6. NAGAPPA S/O RAMAPPA ILAGER, AGE: 74 YEARS, OCC.: AGRICULTURE, R/O PARASAPUR, TQ.: SHIRAHATTI, DIST.: GADAG. - RESPONDENTS (BY SRI G.N. NARASAMMANAVAR, ADVOCATE)

THIS M.S.A. CR. OB. IN M.S.A. NO.650/2012 IS FILED UNDER ORDER XLI RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.06.2012 PASSED IN R.A. NO.21/2011 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, LAXMESHWAR & ETC.

THIS M.S.A. AND M.S.A. CR. OB. COMING FOR FINAL HEARING ON THIS DAY, COURT DELIVERED THE FOLLOWING:- JUDGMENT

1. M.S.A. No.650/2012 and M.S.A. CR. OB. NO.26/2013 arise out of the judgment passed in R.A. No.21/2011 on the file of Addl.

Senior Civil Judge, Laxmeshwar dated 15.06.2012, Learned Judge of the first appellate Court has allowed the appeal filed u/S 96 of CPC arising out of the judgment and decree passed in O.S. No.49/2008 on the file of Civil Judge & JMFC, Laxmeshwar. 4

2. Appellant in M.S.A. No.650/2012 is the plaintiff in the said suit. Respondents herein are the defendants in the said suit. Parties will be referred to as plaintiff and defendant as per their ranking before the trial Court. Suit filed by the plaintiff for the relief of partition and separate possession has been decreed granting 1/3 rd share vide considered judgment 22.02.2011. Defendants of the said suit chose to file regular appeal u/S 96 of CPC before the Court of Senior

Civil Judge, Laxmeshwar in R.A. No.21/2011. The said appeal has been allowed on 15.06.2012 remanding the matter to the trial Court to frame an issue in respect of the event of death of Shekhappa and has permitted both the parties to adduce additional evidence. I.A. No.3 filed under Order 41 Rule 27 of CPC was rejected. The said I.A. had been filed by the appellant no.3 in the first appellate Court. It is this judgment dated 15.06.2012 which is called in question by the plaintiff and cross objection is filed by the third defendant in view of dismissal of his application filed under Order 41 Rule 27 of CPC by the first appellate Court. Hence both these matters are taken up for common 5

discussion. With the consent of the counsel appearing for the parties both matters are taken up together for final disposal.

3. The first appellate Court has come to the conclusion that a specific issue is required in regard to the event of the death of

Shekhappa, the deceased brother of first defendant Prabhappa.

Permission is also accorded to both the parties to lead evidence.

Admittedly, the trial Court has given factual findings on the issues framed. The first appellate Court has all the trappings of a trial Court dealing with the Civil cases. It can frame necessary issue and it can even delete issues which are found to be unnecessary. The first appellate Court can consider an application filed under Order 6 Rule

11 of CPC or under Order 26 Rule 9 of CPC or Under Order 41 Rule

27 of CPC. No specific reasons are assigned to dismiss I.A. No.3 filed under Order 41 Rule 27 of CPC by the third defendant-appellant.

Whenever an application is filed under Order 41 Rule 27 of CPC opportunity has to be given to the opposite side to file objections and such application should be considered along with merits. If the 6

application filed under Order 41` Rule 27 of CPC is allowed, permission would be accorded to adduce additional evidence and it is only after recording additional evidence, appeal will be disposed of after proper assessment of the evidence in regard to the newly adduced evidence and assessing evidence already recorded by the trial

Court.

4. In Shanthaveerappa'’ case reported in ILR 2007 Karnataka

Page 1127 , this Court has specifically held that remand of the appeal should not be made mechanically and that the appellate Courts must not be tempted to remand matters since the Court dealing with appeal u/S 96 of CPC of the trappings of a Civil Court.

5. Even if additional pleadings are required by either of the parties, first appellate Court can consider such additional pleadings after allowing I.A.s under Order 6 Rule 17. The first appellate Court has virtually abdicated its responsibility of recording additional evidence, and considering the plea for adducing additional evidence in right perspective. In the light of the decision rendered in 7

Shanthaveerappa’s case the first appellate Court could not have upset the considered judgment of the trial Court without assigning as to how the trial Court has gone wrong.

6. The proper course open for the first appellate Court to have refrained the findings in tact till additional evidence is required or additional pleadings is completed. Having not done so, the trial Court could not have set aside the considered judgment of the trial Court.

As discussed earlier the first appellate Court has to consider I.A. No.3 filed under Order 41 Rule 27 of CPC filed on behalf of the third defendant-appellant in right perspective and if additional pleadings are required, the first appellate Court itself can provide an opportunity for the parties to complete additional pleadings and to adduce additional evidence. In this view of the matter, the main appeal and the cross- objection will have to be allowed.

ORDER

Judgment dated 15.06.2012 passed by the first appellate Court in R.A. No.21/2011 and the rejection of I.A. No.3 filed under Order 8

41 Rule 27 of CPC, are set aside. Matter is remanded to the first appellate Court to consider I.A. No.3 filed under Order 41 Rule 27

CPC in right perspective and to take appropriate decision on the question of adducing additional evidence regarding the event of death of Shekappa.

Parties shall appear before the first appellate Court on

01.03.2014 without fail and shall co-operate with the Court for disposal of the appeal. The first appellate Court shall try to dispose of the entire appeal itself within a span of 8 months from 01.03.2014.

Send the copy of this judgment to the first appellate Court for reference.

SD/- JUDGE bvv