SRI N NARASIMHA REDDY vs SRI N B GANGADHARA REDDY
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1249 OF 2013 (DEC/INJ)
BETWEEN:
1. SRI N NARASIMHA REDDY
S/O LATE RAMAREDDY
1(a) SMT. CHOWDAMMA
W/O LATE. N. NARASIMHA REDDY
AGED ABOUT 75 YEARS.
1(b) SRI. RAVICHANDRA REDDY
S/O LATE N. NARASIMHA REDDY
AGED ABOUT 57 YEARS.
1(C) SRI. N. SATHYANARAYANA REDDY
S/O LATE N. NARASIMHA REDDY
AGED ABOUT 55 YEARS
R/AT NAREPALLI VILLAGE
GHANTAMVARIPALLI
GRAM PANCHAYATH
BAGEPALLI TALUK
CHIKKABALLAPUR DISTICT.
…APPELLANTS
(BY SRI. MADAN.N, FOR
SRI. NANJA REDDY.P.N, ADVOCATES)
AND:
1. SRI N B GANGADHARA REDDY
S/O LATE NARAYANA REDDY
AGED ABOUT 65 YEARS
Digitally
signed by
VANDANA S
Location:
High Court of
Karnataka
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R/AT NAREPALLI VILLAGE
GHANTAMVARIPALLI
GRAM PANCHAYATH
BAGEPALLI TALUK.
2. SRI H V NAGARAJ
S/O LATE VENKATARAYAPPA
AGED ABOUT 50 YEARS
R/AT KOTHAKOTE VILLAGE
BAGEPALLI TALUK.
3. SRI N SHIVANANDA REDDY
S/O LATE NARAYANA REDDY
AGED ABOUT 50 YEARS
R/AT BEHIND HEALTH QUARTERS
ND
22 WARD, BAGEPALLI TOWN
CHIKKABALLAPUR DIST.
…RESPONDENTS
(BY SRI. ZULFIKAR KUMAR SHAFI, ADVOCATE FOR R-2
R-1 & R-3 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD 10.4.2013 PASSED IN R.A.NO.117/2008 ON
THE FILE OF THE SENIOR CIVIL JUDGE & CJM, CHICKBALLAPUR,
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 19.8.2008 PASSED IN O.S.NO.4/2007 ON THE FILE
OF THE CIVIL JUDGE (JR.DN) BAGEPALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
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ORAL JUDGMENT
The appellant was the plaintiff in O.S. No. 4/2007
instituted by him against the respondents No.1 to 3-
defendants No.1 to 3 for declaration of title and
permanent injunction restraining the defendants from
interfering with his possession and enjoyment of the suit
schedule immovable property and for other reliefs. The
appellant-plaintiff described the plaint/suit schedule
property as the Northern portion of land measuring 18
guntas out of a total extent of 36 guntas of land bearing
Sy. No. 14/6 situated at Gantamvaripalli village, Kasaba
Hobli, Bagepalli Taluk, Chikkaballapur District. Before the
trial Court, the defendant No.3 was placed exparte while
defendants No.1 and 2 contested the suit and the trial
Court dismissed the suit of the plaintiff vide judgment and
decree dated 19.08.2008. However, the trial Court
recorded a finding and made it clear that the second
defendant did not have any title to an extent of 24 guntas
in the suit Sy. No. 14/6. The trial Court also came to the
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conclusion that the suit was bad for non joinder of
necessary parties by answering issue No.4 against the
appellant.
2. The appellant-plaintiff filed an appeal in R.A. No.
117/2008 before the first appellate Court which was
contested only by respondent No.2 / defendant No.2 while
the respondents No.1 and 3 / defendants No.1 and 3 did
not contest the appeal. The respondent No.2 not only
supported the judgment and decree of the trial Court to
the extent of dismissing the suit but also questioned the
finding of the trial Court that the respondent No.2 did not
have any title to an extent of 24 guntas in the suit Sy. No.
14/6. After hearing both the appellant and respondent
No.2, the first appellate Court proceeded to pass the
impugned judgment and decree partly allowing the appeal
filed by the appellant and set aside the judgment and
decree of the trial Court and decreed the suit of the
plaintiff in part only with respect to 12 guntas of land by
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declaring that the plaintiff was the owner of the said
extent of 12 guntas of land in Sy. No. 14/6 out of 18
guntas claimed by the plaintiff. The first appellate Court
also set aside the finding of the trial Court as regards issue
No.4 and came to the conclusion that the suit was not bad
for non joinder of necessary parties. Further the first
appellate Court also set aside the observation/ finding of
the trial Court that the second defendant / second
respondent did not have title to an extent of 24 guntas in
the suit Sy. No. 14/6 and accordingly modified the
judgment and decree of the trial Court.
3. Aggrieved by the impugned judgment and decree of
the first appellate Court insofar as it related to rejecting
the claim of the appellant over 6 guntas out of 18 guntas
and setting aside of the judgment and decree of the trial
Court with regard to title of second defendant/ second
respondent to an extent of 24 guntas, appellant-plaintiff is
before this Court by way of the present appeal.
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4. Heard learned counsel for the appellant and learned
counsel for respondent No.2 and perused the material on
record. The respondents No.1 and 3 having served and
have chosen to remain unrepresented and have not
contested the appeal.
5. Learned counsel for the appellant would reiterate the
various contentions urged in the memorandum of appeal
and submits that the first appellate Court committed an
error in coming to the conclusion that the appellant did not
have title or possession over the suit schedule property
measuring 18 guntas out of total extent of 36 guntas in
Sy. No. 14/6. In this context, it was submitted that the
first appellate Court failed to appreciate that the plaintiff
and Sri Narayan Reddy, father of defendants No.1 and 3
were brothers and at a partition dated 28.01.1988, the
plaintiff’s father and his brother (Narayan Reddy) were
allotted equal share of 18 guntas each which was
incorrectly mentioned in the palu patti and revenue
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records as 12 guntas being allotted to the plaintiff’s father
while in fact he was actually allotted 18 guntas and failure
to appreciate this has resulted in erroneous conclusion. It
was also submitted that while the trial Court recorded a
correct finding that the second defendant did not have title
over 24 guntas in Sy. No. 14/6, the first appellate Court
erroneously reversed the said finding despite the second
defendant not filing any cross objections and the
impugned judgment and decree passed by the fist
appellate Court deserves to be set aside on this ground
also. It is therefore submitted that the present appeal
deserves to be allowed by setting aside the judgment and
decree of the first appellate Court to the extent it rejected
the claim of the appellant-plaintiff to an extent of 18
guntas and setting aside the judgment and decree of the
trial Court in relation to the lack / want of title of second
defendant in respect of 24 guntas of land in Sy. No. 14/6.
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6. Per contra, learned counsel for the second
respondent/ second defendant would support the
judgment and decree of the first appellate Court and
submits that there is no merit in the appeal and the same
is liable to be dismissed.
7. I have given my anxious consideration to the rival
contentions and perused the material on record. A perusal
of the material on record will indicate that before the trial
Court, it was specifically contended by the plaintiff that his
father Rama Reddy was the brother of Narayana Reddy,
the father of defendants No.1 and 3. It was contended
that the suit schedule property was the ancestral joint
family property of the said Rama Reddy and Narayana
Reddy and after their demise, there was a palu patti dated
28.01.1988 between the plaintiff and defendant No.1; the
said palu patti is marked as Ex.P.7 and the signatures of
the plaintiff and defendant No.1 have been marked as
Ex.P.7(a) and P.7(b) in the said document; as per the
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recitals of the said document at Ex.P.7, the plaintiff was
allotted only 12 guntas of lands while defendant No.1-
Gangadhara Reddy was allotted 24 guntas of land; in
addition thereto, the first appellate Court has come to the
correct conclusion that the said palu patti at Ex.P.7 which
is an unregistered document and an out and out partition
and not a record of a past partition was inadmissible in
evidence for the purpose of declaring the shares of parties
under the said document; it is also pertinent to state that
the revenue records, RTC, Pahani, etc. in relation to Sy.
No. 14/6 shows the name of the plaintiff only to an extent
of 12 guntas and not 18 guntas as claimed by him; in
other words, the material on record clearly establishes
that the plaintiff had failed to place legal or acceptable
evidence to indicate that he acquired any land in excess of
12 guntas, much less 18 guntas as claimed by him; it
follows therefrom that in the light of the undisputed fact
that only 12 guntas of land are shown to be allotted in
favour of the plaintiff under the palu patti at Ex.P.7 dated
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28.01.1988 coupled with the revenue records, RTCs, etc.,
the first appellate Court has correctly upheld the claim of
the plaintiff only to an extent of 12 guntas and rejected his
claim in relation to the additional 6 (six) guntas claimed by
him by passing the impugned judgment and decree which
cannot be said to suffer from any illegality or infirmity
warranting interference by this Court in the present
appeal.
8. The first appellate Court also took into account the
registered sale deed at Ex.D.1 dated 24.09.1994 executed
by the defendants No.1 and 3 in favour of defendant No.2
to an extent of 12 guntas and the registered sale deed at
Ex.D.14 dated 02.04.2005, also executed by defendants
No.1 and 3 in favour of defendant No.2 to an extent of the
remaining 12 guntas in order to come to correct
conclusion that by virtue of the aforesaid two sale deeds,
the defendant No.2 had become the absolute owner in
lawful and peaceful possession and enjoyment of a total
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extent of 24 guntas (12 guntas under sale deed dated
24.09.1994 + 12 guntas under sale deed dated
02.04.2005) while the plaintiff was the owner only to an
extent of 12 guntas and not 18 guntas as claimed by him.
While arriving at the said conclusion, the first appellate
Court correctly and properly considered and appreciated
the material on record and set aside the judgment and
decree of the trial Court and partly decreed the suit of the
plaintiff to an extent of 12 guntas and also set aside the
finding of the trial Court holding that the second defendant
did not have title over 24 guntas and held as under:
"13. Heard Sri.JNN learned counsel for the 2nd
respondent and he has relied upon the following decisions
reported in—
1. AIR 2012 KAR 94 (Bangalore City Corporation
B’lore Vs. Md. M. Kamal)
2. AIR 1989 All. 133 (Balakrishna Das Vs. Radha
Devi)
3. AIR 2006 KAR 273 (Manasa Housing Co-operating
Society Vs. Marikellaiah)
4. AIR 2007 SC 989 (S.Nazeer Ahmed Vs. state
Bank of Mysore)
14. During the course of arguments, the learned counsel for the
2nd respondent submitted that he has challenged the finding
given by the trial court on issue No.1 and also the remarks
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made in the operative portion of the order. He submitted that
issue No.1 before the trial court was—
“Whether the plaintiff proves that, he is the
owner to the extent of 18 guntas of suit land by
virtue of partition in his family?”.
The trial court has answered the said issue in the affirmative.
That means there is finding by the trial court that the plaintiff is
the absolute owner of an extent of 18 guntas of land and
further in the operative portion of the order, the trial court has
observed that --
“The suit of the plaintiff is dismissed. However, it
is made clear that, the defendant No.2 has no
title to the extent of 24 guntas in Suit
Sy.No.14/6”.
15. Being aggrieved by the observation made by the trial
court in the operative portion of the order with regard to this
2nd defendant/2nd respondent has no title to an extent of 24
guntas in suit Sy.No.14/6 and further the findings of the trial
court on issue No.1 stating that the plaintiff is the absolute
owner of the entire extent of 18 guntas of land, this 2nd
respondent has challenged the said finding.
16. The learned counsel for the 2nd respondent stated that
though this 2nd respondent has not preferred any appeal or
cross objection on the said finding, as per the provision i.e.
Order 41 Rule 33 CPC, any party who is aggrieved by the
adverse finding can challenge, without filing the appeal or cross
objections. I have gone through the Order 41 Rule 33 CPC
under which, this appellate court has power to pass any decree
and make any order, though the respondents are parties may
not have filed any appeal or objection.
In that regard the learned counsel for the appellant has
relied upon the decision reported in AIR 1989 All. 133, AIR
2006 KAR 273, and AIR 2007 SC 989. I have gone through the
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aforesaid decisions. The principles laid down in the said decision
under Order 41 Rule 22, it is held that-
“ The party can, however, challenge finding
adverse to it while supporting the decree even
though cross- objection is not filed”
17. Perused the records.
18. The following points do arise for my consideration:-
1) Whether the judgment and decree passed by the trial
court is illegal, perverse, capricious and opposed to law?
2) Whether the finding of the trial court with respect to
issue No.1 is illegal and erroneous as contended by the 2nd
respondent?
3) Whether the observation made by the trial court in the
operative portion of the order with respect to the 2nd
respondent has no title to an extent of 24 guntas in suit
Sy.No.14/6 is erroneous and illegal?
4) What order?
19. My answer to the above said points are as under:-
Point No.1 - Partly in the affirmative
Point No.2 - In the affirmative
Point No.3 - In the affirmative
Point No.4 - In the As per the final order for the
following:-
REASONS
20. Point No.1 & 2:- The contention of the plaintiff is that
Sy.No.14/6 it measuring to an extent of 36 guntas. According
to the plaintiff, in the year 1988 i.e. on 28.1.1988, there was
Palu-patti between the plaintiff and the 1st defendant and
through the said partition, Sy.No.14/6 divided into two parts
i.e. north and south and mentioned as A-schedule and B-
schedule in the said Palu-patti and thereby the plaintiff allotted
northern portion of Sy.No.14/6 to an extent of 18 guntas i.e. B-
schedule property and the 1st defendant allotted towards
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southern side portion measuring to an extent of 18 guntas i.e.
A-schedule property. Plaintiff’s contention is that though the
plaintiff and the 1st defendant allotted each 18 guntas, while
writing the said palu-patti, it is wrongly mentioned as 12 guntas
each instead of mentioning it as 18 guntas. His contention is
that he has been in possession of 18 guntas though in the palu-
patti it is written as 12 guntas. The Palu-patti it is an
unregistered document and marked before the trial court as
Ex.P7. On the basis of Ex.P7, this plaintiff based his suit stating
that though it is mentioned as 12 guntas extent. On perusal of
the boundaries, it discloses to an extent of 18 guntas of land.
However the 2nd defendant who is said to be the purchaser of
the extent of 24 guntas of land in Sy.No.14/6 from defendants
1 & 3, his contention is that the plaintiff not at all in possession
of 18 guntas of land. The trial judge has given finding to the
effect that the plaintiff proved that he is the absolute owner of
an extent of 18 guntas of land. In so far as ownership of this
plaintiff to an extent of 18 guntas of land, the trial court has
answered in the affirmative stating that the plaintiff is the
absolute owner of 18 guntas of land. However the 2nd
respondent in this case has challenged the said observation.
21. The learned counsel for the 2nd respondent during the
course of arguments has submitted that the palupatti i.e.
marked as Ex.P7 it is an unregistered document and the trial
court could not have relied upon the said document. He has
placed the decision reported in AIR 2012 Kar. 94, wherein it is
held that—
“Registration Act (16 of 1908), S.17—Suit for declaration
of title – Title claimed by vendor of plaintiff on the basis
of partition deed – Partition deed being unregistered
document cannot be relied upon—Sale deed executed by
vendor in favour of plaintiff therefore would be rendered
invalid—Other documents exhibited were merely self-
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serving documents of plaintiff and his vendor and did not
confer any title thereon—Those documents were
pertaining to incidental proceedings, which cannot be
relied upon—Plaintiff having failed to establish title, not
entitled to declaratory relief”.
22. I have gone through the said decision. The principles laid
down in the said decision squarely applicable to the present
case. In the present case also the trial court has relied upon
Ex.P7 i.e. un-registered document has come to the conclusion
that the plaintiff established his case/ownership that he is the
owner of 18 guntas of land. On perusal of the documents
produced by the plaintiff before the trial court i.e. record of
rights, mutation extracts, RTC extract which are marked as
Ex.P1 to P6. As per the mutation extract Ex.P3, it is shown only
12 guntas of land and not 18 guntas of land. Ex.P1 & 2 does
not disclose the extents, it is only mentioned the name of
persons and survey number. In the RTC extract marked as
Ex.P4, total extent in Sy.No.14/6 mentioned as 36 guntas. In
the Ex.P5 also total extent mentioned as 36 guntas and at
Kabjedar’s column – 9 it is mentioned as 12 guntas each.
Thereby, if at all the plaintiff has been in possession of entire
extent of 18 guntas of land, the plaintiff could have produced
the tax paid receipt for having paid the tax with respect to 18
guntas of land except the palu-patti -Ex.P7 i.e. of the year
1988, the plaintiff has not produced any other document to
show that the plaintiff has been in possession and enjoyment of
18 guntas of land. The plaintiff contended that the boundaries
has to be looked into. However it is pertinent to note that
though the 2nd respondent also disputed the boundaries stating
that the boundaries not correctly mentioned by the plaintiff.
The plaintiff who approached the court, at least he could have
taken commission for local inspection with regard to prove his
title to an extent of 18 guntas stating that he is in possession of
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the boundaries mentioned as per Ex.P7. As the Ex.P7 is an
unregistered document, the trial court could not have relied
upon to prove the title to the plaintiff except said crucial
document Ex.P7, that too it is an unregistered document; the
plaintiff has not produced any material evidence to prove his
title to an extent of 18 guntas of land. It is not in dispute that
the plaintiff, the 1st defendant and 3rd defendant, they are
cousins. According to the 2nd respondent, the first respondent
and the 3rd respondent they got each 12 guntas of land in the
suit survey number and they sold their property i.e. in all 24
guntas of land in favour of this 2nd defendant under the
registered sale deeds in the year 1994 and in the year 2005.
23. Further it is also pertinent to note that as per the RTC
extract, all the three persons name shown as 12 guntas each.
This plaintiff did not take any steps to get correct revenue
entries with respect to his ownership to an extent of 18 guntas
as per Ex.P7. Thereby the plaintiff has failed to prove that he is
the absolute owner of 18 guntas of land. Thereby the finding
given by the trial with regard to issue No.1 stating that the
plaintiff is absolute owner of 18 guntas is erroneous and the
plaintiff only prove that he is the owner of 12 guntas of land.
Thereby the finding given by the trial court on issue No.1 has to
be set-aside with respect to the remaining 06 guntas of land.
Accordingly I answer point No.2 in the affirmative.
24. In so far as, the other finding given by the trial court
with regard to other issues i.e. interference are concerned, the
trial court has not committed any illegality. However in so far as
issue No.4 is concerned, i.e. whether the suit is bad for non-
joinder of necessary parties, the learned counsel for the
appellant in the written arguments submitted that the trial
court has given finding that one Gangamma, she is also
necessary party to the suit. But according to the appellant
herein, said Gangamma is no way concerned to the suit
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property. The learned counsel for the appellant has argued that
in the written statement filed by the 2nd respondent; this 2nd
respondent took the contention that one Shivanandareddy is
the necessary party to the suit. Thereafter the plaintiff made
Shivannda Reddy as 3rd defendant in the suit. In spite of the
same, the trial court, has answered issue No.4 in the
affirmative stating that the suit of the plaintiff is barred by non-
joinder of necessary parties. In the light of the said grounds, I
have gone through the finding given by the trial court on issue
No.4. The trial judge has stated that in Ex.P3, it shows that one
Gangamma got 1/3rd share in the suit Sy.No.14/6. The plaintiff
has not explained how such entries found in Ex.P3. As the name
of said Gangamma shown in Ex.P3 and as the plaintiff has
relied upon the said document Ex.P3, the trial court has come
to the conclusion that said Gangamma is also a necessary party
in the present suit. It is true that in Ex.P3 i.e. mutation extract,
it is mentioned that ---
“ . 14.6 36
ಸ ಾೕ ಾಖ ೆಗಳ ಪ ಾರ ಸ ೆ ನಂ ರ ಗುಂ ೆ
1:3
ಇದು ಅನುಭವ ಾರ ಾದ ಗಂಗಮ ೋಂ ನಂ!"ೆ#$ ಎಂಬುವರ
12 ”.
'(ೆ) ಅಂದ"ೆ ಗುಂ ೆ ಜ+ೕನು
Therefore the trial court has observed that said
Gangamma is also necessary party to the present suit. However
the defendants not contended that the said Gangamma is also
having right over the suit property. Under these circumstances,
only because there is an entry in the mutation-Ex.P3, the
finding given by the trial court that she is a necessary party is
incorrect and the trial court by answering issue No.4 in the
affirmative has committed an error, thereby in so far as, the
finding on issue No.4 has to be set aside.
25. However in so far as, the other aspects is concerned, i.e.
dismissal of the suit of the plaintiff with respect to interference
to an extent of entire 18 guntas of land, the finding given by
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the trial court is correct and not require any interference. The
trial court ought to have decreed the suit of the plaintiff with
respect to 12 guntas of land and ought to have granted relief of
permanent injunction with respect to 12 guntas of land, but the
trial court has dismissed the suit in its entirety. Thereby the
trial court has committed an error. Accordingly I answer point
No.1 partly in the affirmative.
26. Point No.3:- The learned counsel for the 2nd respondent
brought to the notice of this court that the trial court has
observed in the operative portion that the 2nd defendant has
no title to the extent of 24 guntas in Sy.No.14/6. It is pertinent
to note that the trial court though answered issue No.1 stating
that the plaintiff has proved that he is the owner of 18 guntas
of land, while answering issue No.2 i.e. with regard to the
interference is concerned, the trial court has answered in the
negative, stating that the plaintiff has failed to prove that he
has been in possession of entire extent of 18 guntas of land.
Further while answering issue No.3 i.e. regarding interference
made by the defendants, the trial has observed that the 2nd
defendant rightly or wrongly, the possession of the 2nd
defendant clearly established from own documentary evidence
of the plaintiff himself. If that is so, the trial court ought not
have made in the observation with regard to the title of the 2nd
defendant in the operative portion of the order. The plaintiff
who approached the court sought the relief, the trial court
ought to have given its finding only with respect to the plaintiff
whether he proves his case or not. The trial court ought not to
have any observation with respect to the title of the 2nd
defendant stating that he has no title. Thereby the trial court
has committed an error by mentioning the same in the
operative portion of the order. Thereby the said observation
made by the trial court in the operative portion of the order has
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to be set aside. Accordingly I answer point No.3 in the
affirmative.
27. Point No.4:- In the present case, the appellant who filed
this appeal on the ground that the trial court has committed an
illegality in dismissing the suit of the plaintiff, though it has
come to the conclusion that the plaintiff has proved his
ownership over an extent of 18 guntas. However the appellant
has failed to establish that he is in possession of entire extent
of 18 guntas of land and thereby he is entitle for the relief. In
so far as, the finding given with regard to non-joinder of
necessary parties is concerned, the appellant has proved that
the trial court has committed an illegality in answering said
issue in the affirmative.
28. On going through the trial court records and the oral and
documentary evidence placed by the plaintiff, the plaintiff has
only established that he is the absolute owner of 12 guntas of
land only. He was not able to prove that he has been in
possession of entire 18 guntas of land. Thereby the finding
given by the trial court calls for no interference by this court.
However the trial court ought to have decreed the suit of the
plaintiff with respect to the 12 guntas of land. But the trial court
dismissed the suit in its entirety. To that extent, the judgment
and decree of the trial court calls for interference by this court
and in view of my aforesaid discussion, I proceed to pass the
following:-
ORDER
The appeal is partly allowed.
Thereby the judgment and decree of the
trial court dismissing the suit of the plaintiff in its
entirety is set aside. However the suit of the
plaintiff is decreed with respect to 12 guntas of
land stating that the plaintiff is the owner of 12
guntas of land.
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In so far as the findings given by the trial
court with regard to issue No.4 i.e. non-joinder
of necessary parties is concerned, it is set aside
and the suit is not bad for non-joinder of
necessary parties.
Further in so far as the findings given by
the trial court with regard to issue No.1 that the
plaintiff is the absolute owner of 18 guntas of
land, it is also set aside and it is stated that the
plaintiff is the absolute owner of only 12 guntas
of land.
Further the observation made by the
operative portion of the order that the 2nd
defendant has no title to the extent of 24 guntas
in Suit Sy.No.14/6, is also set aside.
Thereby the judgment of the trial court is
modified as aforesaid.
Parties to bear their own costs.
Office is directed to send back the records
to the trial court along with the copy of this
judgment for perusal of the trial court.
Draw decree accordingly"
9. A perusal of the impugned judgment and decree
passed by the first appellate Court will clearly indicate that
the contention of the appellant that the second respondent
cannot challenge the finding of the trial Court insofar as it
relates to holding that the second respondent did not have
title to an extent of 24 guntas has been correctly
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negatived by the first appellate Court which has come to
the correct conclusion that in the light of the provisions
contained in Order 41 Rule 33 of CPC and the judgments
of the Apex Court and this Court referred to in the
judgment of the first appellate Court, the second
respondent was entitled to challenge the said adverse
finding recorded by the trial Court especially since the
entire suit had been dismissed and there was no warrant /
requirement to file a separate / cross appeal or cross
objections and it was permissible in law for the second
respondent to challenge the said adverse finding without
doing so; further the first appellate Court has also
correctly and properly considered and appreciated the
cumulative effect of the pleadings, oral evidence,
documentary evidence, etc. in order to come to the correct
conclusion that the plaintiff having been allotted only 12
guntas and his name having been reflected in the revenue
records, RTCs, etc. only to an extent of 12 guntas coupled
with the fact that there was no other evidence adduced by
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him to substantiate his claim to an additional extent of 6
(six) guntas, the claim of the plaintiff in this regard was
liable to be rejected. Under these circumstances, I am of
the considered opinion that the first appellate Court was
fully justified in coming to the conclusion that the plaintiff
was entitled to a decree only to an extent of 12 guntas
and the defendant No.2 was entitled to the remaining 24
guntas by virtue of the registered sale deeds dated
24.09.1994 and 02.04.2005 executed in his favour by
defendants No.1 and 3 which would clearly establish the
right, title, interest and possession of defendant No.2 to
an extent of 24 guntas.
10. I do not find any illegality or infirmity in the
impugned judgment and decree of the first appellate Court
which cannot be said to be capracious and perverse nor
give rise to any question of law, much less substantial
question of law warranting interference by this Court in
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the present appeal. Accordingly, I do not find any merit in
the appeal and the same is hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BVV
List No.: 1 Sl No.: 28