Judgment:
V.G. Sabhahit, J.
1. This appeal by the defendant is directed against the judgment and decree passed by the Court of the Civil Judge (Sr.Dn.), Holalkere, in R.A. No. 210/2001 (old R.A. No. 13/2000) dated 24.06.2003, reversing the judgment and decree passed by the Court of the Additional Civil Judge (Jr. Dn.), Hosadurga, in O.S. No. 584/1993 dated 22.11.1999 and consequently, decreeing the suit of the plaintiff for declaration of title and permanent injunction.
The essential facts of the case leading up to this appeal with reference to the rank of the parties before the Trial Court are as follows:-
2. The plaintiff filed the suit for declaration of his title and for permanent injunction against the defendant in respect of the schedule property i.e., a vacant site with basement situate at Bharamaiahnapalya Village, Srirampura bearing Khatha No .627 measuring East to West 12 Yards (36 feet) and North to South 07 Yards (21 feet) bounded as per the description given in the schedule. It is averred in the plaint that the father of the plaintiff has purchased the scheduled property under the registered sale deed dated 23.09.1965 and the plaintiff has been in possession and enjoyment of the same. The plaintiff applied to the Grama Panchayath to enter his name in the Khatha in respect of the suit scheduled property and the Secretary of the Grama Panchayath, Srirampura visited the spot and issued an endorsement on 04.12.1993 stating that the measuring of the suit property mentioned in the sale deed and the measurement found at the time of spot inspection is not tallying and as such the khatha of the suit schedule property cannot be changed in the name of the plaintiff. The defendant who has no right, title or interest over the suit schedule property is trying to assert his title and trying to interfere with the possession and enjoyment of the suit schedule property by the plaintiff and wherefore, the suit for declaration of title and permanent injunction.
3. The suit was resisted by the defendant by filing the written statement denying the material averment made in the plaint to the effect that the plaintiff has been in possession and enjoyment of the suit schedule property as the owner. The averment made in the plaint to the effect that the father of the plaintiff purchased the suit schedule property under the registered sale deed dated 23.09.1965 for valuable consideration without notice is denied. The further averment that the plaintiff has put up foundation in the suit property is also denied. It is further averred that Amean Nagappa, who is the father of the defendant had a house at Bharamaiahnapalya Village and his father also had two Sites; one in front of the said house and another in the back side of the house and the said Sites were granted to him by the Tahsildar, Hosadurga Taluk and the Sites are referred to as Block Nos. 1 and 2. Block No. 1 Site measures East to West 07 Yards and North to South 05 Yards as per the boundaries given in the written statement and Block No. 2 Site measures East to West 07 Yards and North to South 03 Yards bounded as per the description given in the written statement. It is further averred that the father of the defendant has paid the amount to the Tahsildar, Hosadurga in respect of the grant of the said Sites and the Tahsildar has issued 'Manedalagala Manjuri' certificate on 03.12.1963 and he has acquired the said Sites earlier to the purchase of the suit property by the father of the plaintiff and wherefore, the plaintiff is not entitled to the relief sought for in the suit.
4. The Trial Court framed issues having regard to the above said pleadings. On behalf of the plaintiff, the plaintiff got examined himself as PW1 and he also examined the son of his vendor as PW2 and also examined PW3 and got marked Exs. PI to P5. on behalf of the defendant, the defendant got examined himself as DW1 and got marked Ex.D 1, the grant certificate. The Trial Court after considering the contentions of the parties and the material on record, answered the issues against the plaintiff and dismissed the suit by judgment dated 22.11.1999. Being aggrieved by the said judgment and decree, the plaintiff preferred R.A. No. 13/2000, which was later numbered as R.A.No. 210/2001 on the file of the Civil Judge (Sr.Dn.), Holalkere, and the First Appellate Court by judgment dated 24.06.2003, reversed the judgment and decree passed by the Trial Court and decreed the suit of the plaintiff and being aggrieved by the said judgment and decree, the defendant has preferred this appeal. The appeal has been admitted on 23.06.2005 for consideration of the following substantial question of law:-
Whether the finding of the First Appellate Court reversing the judgment and decree passed by the Trial Court in decreeing the suit of the plaintiff for declaration, title and injunction in respect of the suit property is perverse and arbitrary being contrary to law and material on record and for non-consideration of the reasons assigned by the Trial Court in dismissing the suit of the plaintiff?
5. I have heard the Learned Counsel appearing for the parties on the above said substantial question of law.
6. Learned Counsel appearing for the appellant-defendant submitted that the finding of the First Appellate Court reversing the judgment and decree passed by the Trial Court is perverse and arbitrary as the First Appellate Court has failed to consider the reasons assigned by the Trial Court in dismissing the suit of the plaintiff. Learned Counsel further submitted that the First Appellate Court being a Final Court on the question of fact and law has not considered the oral and documentary evidence on record in the proper perspective and has accepted the arguments of the Counsel appearing for the appellant before the First Appellate Court without considering the oral and documentary on record and wherefore, the judgment and decree passed by the First Appellate Court is perverse and arbitrary.
7. On the other hand, the Learned Counsel appearing for the Respondent submitted that the specific contention of the defendant was that he was allotted land and the suit scheduled property is comprised in the land that is allotted to him and the said contention is not substantiated and the material on record clearly shows that the father of the plaintiff has purchased the suit schedule property under the registered sale deed dated 23.09.1965 as per Ex.P 1 and wherefore, the First Appellate Court has rightly decreed the suit of the plaintiff for declaration of title and permanent injunction against the defendant-the appellant herein.
8. I have considered the contentions of the Learned Counsel appearing for the parties and I have been taken through the oral and documentary evidence on record and the judgment passed by Trial Court and the First Appellate Court and I answer the substantial question of law in the affirmative for the following:
REASONS
9. It is clear from a perusal of the judgment passed by the First Appellate Court that the First Appellate Court has not considered the oral and documentary evidence adduced by the parties and has only held that it has considered in detail the arguments advanced by the Learned Counsel Appearing for the Appellant and the respondent before it and that the contention of the learned Counsel appearing for the Appellant before it is accepted and Exs.P1 to P3 show that the plaintiff is in possession of the suit scheduled property. The First Appellate Court being a final Court on the question of fact and law ought to have re-appreciated the evidence on record by considering the oral and documentary evidence adduced by the parties and in case it decided to reverse the judgment and decree passed by the Trial Court, it ought to have also examined the reasons assigned by the Trial Court for dismissing the suit of the plaintiff. The First Appellate Court failed to note that the Trial Court had dismissed the suit of the plaintiff on the ground that the boundaries given in Ex.P1, the sale deed under which the plaintiff purchased the property and the description of the property given in Ex.P4, under which the vendor of the plaintiff has purchased the property and evidence of PW2 would show that the plaintiff has failed to prove his title to the suit property and he is not entitled to the relief sought for in the suit. The First Appellate Court has not at all considered the said question about the discrepancy in respect of the boundaries of the suit property mentioned in Exs.P1 and P4 and also the endorsement issued as per Ex.P3 and merely on the basis of the contentions urged by the Counsel appearing for the parties, has held that it has accepted the contention of the Learned Counsel Appearing for the Appellant before it and the contention of the respondent-defendant is rejected by observing that the defendant has produced only Ex.D1 and has not substantiated the contention that the suit schedule property was allotted to his father. Therefore, it is clear that the First Appellate Court has failed to discharge its duties as the Court of the First Appeal, which is a final Court on the question of fact and law and has not appreciated the oral and documentary evidence on record adduced by the parties and has merely proceeded on the basis of the arguments advanced by the Learned Counsel appearing for the parties and has accepted the arguments of the Learned Counsel Appearing for the appellant before it and set aside the judgment and decree passed by the Trial Court and the said finding of the First Appellate Court is perverse and arbitrary for non-consideration of the oral and documentary evidence on record and the reasons assigned by the Trial Court for dismissing the suit of the plaintiff and accordingly, I answer the substantial question of law in the affirmative. However, since the First Appellate Court is final Court on the question of fact and law and in view of the submission made by the Learned Counsel Appearing for the parties and the fact that the First Appellate Court has failed to appreciate the oral and documentary evidence adduced by the parties and the reasons assigned by the Trial Court for dismissing the suit of the plaintiff, it is but appropriate to remit the matter to the First Appellate Court for fresh disposal in accordance with law in the light of the observation made in the body of the judgment. Accordingly, I pass the following Order:-
The appeal is allowed in part. The judgment and decree passed by the Court of the Civil Judge (Se.Dn.) Holalkere, in R.A. No. 210/2001 (old R.A. No. 13/2000), dated 24.06.2003, reversing the judgment and decree passed by the Court of the Civil Judge (Jr. Dn.), Hosadurga, in O.S. No. 584/1993 dated 22.11.1999 decreeing the suit of the plaintiff is set aside and R.A. No. 210/2001 (old R.A. No. 13/2000) is remitted to the Court of the Civil Judge (Sr.Dn.,), Holalkere, for disposal of the appeal in accordance with law in the light of the observations made in the body of the judgment. All the contentions of the parties are kept open to be urged before the First Appellate Court. The parties are directed to appear before the First Appellate Court on 07.02.2006 to seek further instructions without the necessity of issuing any fresh notice. Let a copy of this order and lower Court records, be transmitted to the First Appellate Court forthwith. The shall be no order as to costs in this appeal.