Siddamallappa Kadappa Burge Vs. Dundappa Huvappa Ghasti (Deceased) by L.Rs. and Others - Court Judgment

Excerpt:
- code of civil procedure, 1908. section 96: [s.r. bannurmath & a.n. venugopala gowda, jj] regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff is liable to pay court fee under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. -- karnataka court fees & suits valuation act, 1958.[k.a. no. 16/1958]. section 41: regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment of court fee of rs.200/- in the appeal office objection specific finding by the trial court as to ouster of the plaintiff from the suit schedule property whether plaintiff is liable to pay court fee under section 35(1) or under section 35(2) of the karnataka court fees & suits valuation act, 1958 held, merely because the trial court has held that plaintiff is not in possession and has been excluded from possession there will be no change in the court fee payable in the appeal filed by the plaintiff against the decree passed by the trial court . the court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable.1. the only point raised in this second appeal was whether proper issues have been framed both by the trial court and the appellate court with reference to the burden of proof. it is true that there was an agreement of sale in favour of the plaintiff on 20-11-1970 and the property has been sold to the first defendant on 30-11-1970. the case of the plaintiff was that the father of defendants 2 to 5, was a tenant in respect of the suit property. he purchased the property from the original owner and sold it to the plaintiff. but, despite the fact that the plaintiff sent a notice by certificate of posting to the intending purchaser defendant 1, defendants 2 to 5, apart from an objection made by him before the sub-registrar, the sale has taken place and defendant 1 has purchased the property. his grievance that the lower court by framing the issue in the following fashion, the burden is wrongly cast on him.'issue 4:--does plaintiff prove that defendant 1 purchased the suit land from basappa on 30-11-1970 with knowledge of the alleged agreement of sale by the deceased basappa in favour of the plaintiff ?the appellate court agrees with such contention that proper issue has not been framed, but yet, without framing an issue goes on discussing the pros and cons of such issue. such approach by the appellate court is not correct. only when anissue is framed, the parties are called to concentrate upon such issue and put forward their defence or other evidence in support of the issues or against the issues. this omission on the part of the first appellate court in framing a proper issue, after coming to know of the mistake or illegal approach done by the trial court, is tell-tale.2. in this view, the finding of the first appellate court has to be set aside and the matter is to be remitted back to the first appellate court with a direction to frame proper issues putting the burden on defendant 1, the purchaser of the property and decide the matter afresh. the parties are permitted to adduce further or additional evidence if they so choose before the first appellate court.3. hence, this second appeal is allowed.