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IN THE HIGH COURT OF

CIRCUIT BENCH AT DHARWAD

DATED THIS THE 06 th DAY OF FEBRUARY, 2013

BEFORE

THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA

REGULAR SECOND APPEAL No.1312/05 [PAR/INJ]

BETWEEN:

1. SRI. SHIVAPPA S/O MANAPPA DADDIKAR SINCE DECEASED BY LRS:

1A. SMT. BASAVVA SHIVAPPA DADDIKAR AGED ABOUT 96 YRS OCC HOUSEHOLD WORK, R/O K.M., TQ. , DIST. -591 309.

1B. SMT. LAGAMAVVA PARASHURAM JINARALI AGED ABOUT 71 YRS OCC HOUSEHOLD WORK R/O TERANI, TQ. GADHINGLAJ -591 308.

1C. SMT. SUBHADRA NINGAPPA GUJANALI AGED ABOUT 66 YRS OCC HOUSEHOLD, R/O BOLASHYANATTI, TQ. HUKKERI-591 309

1D. SRI. BASAVANNI SHIVAPPA DADDIKAR AGED ABOUT 77 YRS, OCC AGRICULTURE, R/O IDALHOND, TQ. BELGAUM-591 309.

1E. SRI. MANOHAR SHIVAPPA DADDIKAR, AGE: 61 YEARS, OCC: SERVICE, : 2 :

R/O.RAJAGOLI, TAL: , DIST: KOLHAPUR, STATE: MAHARSHTRA PIN: 416 003.

1F. SMT. DHRUPADI GANGAPPA GANESHGOL AGED ABOUT 58 YRS OCC HOUSEHOLD WORK, R/O CHANCHATTI, TQ. CHANDAGAD, DIST. KOLHAPUR- 416 003

1G. SRI. KRISNA SHIVAPPA DADDIKAR AGED ABOUT 54 YRS, OCC AGRICULTURE R/O CHANCHATTI, TQ. CHANDAGAD, DIST. KOLHAPUR- 416 003

1H. SMT. LEELA PUNDALIK CHINCHANAGI AGED ABOUT 51 YRS OCC HOUSEHOLD WORK R/O MANAGAON, TQ. & DIST. KOLHAPUR- 416 003

1I. SMT. PARVATI MARUTI PATIL AGED ABOUT 48 YRS OCC HOUSEHOLD WORK R/O HATTARGI, TQ. HUKKERI -591 309

1J. SMT. MAHDEVI SURESH HULAMANI AGED ABOUT 46 YRS OCC HOUSEHOLD WORK R/O IDALHOND, TQ. BELGAUM-590 001. ... APPELLANTS (By Sri. JAGDISH PATIL : K ANAND ADVs.)

AND:

1. SMT. GANGAWWA W/O GANGAPPA GHASTI AGE: 51 YEARS, OCC AGRIL. AND HOUSEHOLD WORK, R/O NAGANUR K M, TQ: HUKKERI, DIST: BELGAUM-591 309. : 3 :

2. SRI. BASAPPA S/O SATTEPPA DADDIAKR AGE: 38 YEARS, OCC AGRIL., R/O: NAGANUR K M, TQ: HUKKERI, DIST: BELGAUM-591 309.

3. THE MANDAL PANCHAYATH MANAGUTTI, REP. BY ITS SEC., MANAGUTTI, TQ. HUKKERI, DIST. BELGAUM-591 309.

4. SRI. RAMACHANDRA SHIVAPPA DADDIKAR AGED ABOUT 76 YRS, OCC. AGRIL R/O IDALHOND, TQ. & DIST. BELGAUM-590 001.

... RESPONDENTS

(By Sri. SACHIN S MAGADUM ADV. FOR R1)

THIS RSA IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 21.03.2005 PASSED IN RA NO.14/1999 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HUKKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.02.1999, PASSED IN O.S. NO.92/1997 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), HUKKERI.

THIS APPEAL COMING FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: : 4 :

J U D G M E N T

Smt. Gangawwa W/o. Gangappa Ghasti, respondent No.1 herein, filed O.S. No.251/1990 for partition and separate possession against

Smt.Subbavva W/o. Nagappa Naik and three others. The suit was assigned a new number O.S.

No.92/1997 on the file of Civil Judge (Jr.Dn.) at

Sankeshwar.

2. Defendant No.1, despite service of notice, did not appear and was placed exparte ′.

Defendant No.2 filed written statement and denied the whole case of the plaintiff. He pleaded the execution of a Will by the grant father of the plaintiff and defendant No.1, in his favour and thus, he having became the owner of the suit properties by succession. Based on the pleadings, six issues were raised. During trial, plaintiff deposed as PW-1 and examined a witness and : 5 :

marked Exs.P-1 to 18. Defendant No.2 deposed as

DW-1 and examined four witnesses as DWs-2 to 5 and marked Exs.D-1 to 16. The trial court on

05.02.1999 decreed the suit. It held that the plaintiff is entitled to half share in the suit properties. Defendants 2 and 4 were restrained by a decree of permanent injunction from obstructing the plaintiff enjoying the suit properties.

3. Aggrieved, defendant No.2—Shivappa

Manappa Daddikari filed R.A. No.14/1999 in the

Court of Civil Judge (Sr.Dn.) at Hukkeri. During the pendency of the appeal, the appellant having passed away, his wife and children came on record and prosecuted the appeal.

4. The learned appellate judge, having heard learned counsel for parties, raised two points for consideration. By a judgment dated 21.03.2005, : 6 :

the appeal was dismissed as devoid of merit.

Assailing the said decrees, the legal representatives of deceased defendant No.2 have filed this second appeal.

5. Sri.Jagadish Patil, learned advocate appearing for the appellants, contended that the judgment passed by the lower appellate court being cryptic, the same has given raise to substantial questions of law raised in this appeal memorandum.

6. Sri.Sachin S.Magadum, learned advocate appearing for Respondent No.1/plaintiff, on the other hand, attempted to support the view taken by the courts below and submitted that the impugned judgments/decrees have not given raise to any substantial questions of law and submitted that, the second appeal be rejected. : 7 :

7. Having heard the learned counsel on both

sides and having perused the record of the case

received from the trial court and the lower

appellate court, the substantial question of law

which needs determination is:

“Whether the appellate court has followed the fundamental rules governing the exercise of its jurisdiction under Section 96 of CPC and the judgment and decree passed by it is vitiated?”

8. Learned counsel on both sides submitted that the arguments addressed by them may be treated as arguments in respect of the main matter and the appeal be decided.

9. To answer the said question of law, it is necessary to make a reference to the decision of the Apex Court in the case of MADHUKAR AND

OTHERS Vs. SANGRAM AND OTHERS, reported in

(2001) 4 SCC 756 , wherein, the principles and : 8 :

parameters as to how the first appeal has to be

decided has been laid down. It has been held

therein that, sitting as a Court of first appeal,

duty is cast on the Court, to deal with all the

issues and evidence led by the parties, before

recording the findings. It has been observed that

the first appeal is a valuable right and the parties

have a right to be heard, both on the questions of

fact and law and the judgment in the first appeal

must address itself to all the issues of law and fact

and decide it, by giving reasons, in support of the

findings.

10. The said ratio of law has been reiterated

in the decisions reported at (2005) 12 SCC 186

[RAMA PULP & PAPERS LTD. Vs. MARUTI N.DHOTRE],

(2005) 10 SCC 243 [H.K.N. SWAMI Vs. IRSHAD

BASITH (DEAD) BY LR’S], and (2010) 13 SCC 530 : 9 :

[B.V. NAGESH & ANOTHER Vs. H.V. SREENIVASA

MURTHY].

11. In the case of PARIMAL Vs. VEENA @

BHARATHI – (2011) 3 SCC 545 , it has been held that, Order XL1 Rule 3 of Code, provides for a procedure for deciding the appeal and that the law requires substantial compliance with the said provision.

12. In RSA No.192/2009 decided on

28.03.2012, it was held as follows:-

“18. S.96 of the Code provides the right of an appeal. O 41 R 31 of the Code provides guidelines for the appellate Court as to how it has to proceed and decide the appeal. The first appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s, which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of : 10 :

fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings.”

13. The judgment passed by the lower appellate court, when examined in the light of the settled principles of law, noticed supra , it is clear

that the lower appellate court has failed to

exercise its jurisdiction conferred on it under

Section 96 of CPC and decide the appeal as per

the provision under Order XLI Rule 31 CPC. The

judgment passed by the lower appellate court is

cryptic and falls short of the requirements, which

are expected from the Court of first appeal. There

being no consideration of the appeal in accordance

with law, the decree passed by the first appellate

court being vitiated, cannot be upheld.

In the result, the appeal is allowed and the

judgment and decree dated 21.03.2005 passed in

R.A. No.14/1999 by the learned Civil Judge : 11 :

(Sr.Dn.), Hukkeri, is set aside. R.A. No.14/1999

is restored to the file of Civil Judge (Sr.Dn.),

Hukkeri, for rehearing and decision afresh, in

accordance with law.

Since the suit is one for partition and

consequential reliefs and some of the legal

representatives of deceased 2 nd defendant are senior citizens, keeping in view the provisions made in the Karnataka Case Flow Management

Rules , the lower appellate court is directed to decide the appeal within a period of four months from the date of first appearance of the parties.

To expedite the hearing and decision in the appeal, both parties are directed to appear in the

Court of Senior Civil Judge at Hukkeri on

02.03.2013 and receive further orders. : 12 :

Contentions of both parties are left open for consideration by the first appellate court. Parties are directed to bear their respective costs.

SD/- JUDGE RK/-