BETTEGOWDA (SINCE DEAD) BY HIS LRS (GOWRAMMA W/O LATE BETTEGOWDA AND OTHERS) Vs. PUTTASWAMYGOWDA, S/O LATE KALLEGOWDA, SMT. KALYANAMMA W/O PUTTASWAMYGOWDA, KUMARA S/O PUTTASWAMY GOWDA

JUDGEMENT

(1.) THE appeal coming on for final hearing, the learned Counsel for the Appellants, at the first instance, would submit that there is a gross infirmity committed by the Plaintiff in tendering evidence which was inaccurate and contrary to the material documents on record, in that, as found by the trial court, the evidence that was tendered by the Plaintiff was totally inapposite to the sale deed and was contrary thereto. Both the courts below have overlooked the fact that the title deeds took precedence. The Plaintiff though had tendered inaccurate evidence, the trial court having relied upon ketch to hold that the Plaintiff had failed to establish his case, while ignoring the title deeds, is an infirmity which could be the substantial question of law to be considered in the present appeal. The fact remains that the Plaintiff had bungled in tendering evidence which has resulted in the suit being dismissed. The Plaintiff had the option of seeking permission of the trial court to withdraw the suit at that stage and to file a fresh suit. As by efflux of time, the property as it stood, was not the same as defined in the sale deeds, Exhibits P.1 to P.3. Therefore, he would submit that the suit has failed on account of a formal defect in the Plaintiff having tendered inaccurate evidence in the face of material evidence which was certainly in favour of the Plaintiff's case and the same having been prosecuted with that infirmity has suffered a further dismissal of the appeal. In this second appeal the learned Counsel for the Appellants would seek indulgence of this Court to withdraw the suit and to file a comprehensive suit for declaration and seek such other consequential reliefs.

(2.) WHILE the learned Counsel for the Respondents would take serious exception to such a request being made in a second appeal and would point out that if the cause of action has arisen for the appeal in the year 1991, the question of the Appellant being permitted to withdraw the suit at this point of time, after he has suffered two judgments and decrees of the courts below and to file a fresh suit, would be wholly untenable. The effect of such withdrawal and permission to file a fresh suit would result in two well considered judgments of the courts below being set at naught which is not contemplated in law. He would further submit that a suit for declaration or recovery of possession being wholly barred by time, if the cause of action is to be taken as of the year 1991, the question of the Appellant being permitted to withdraw the suit and to file a fresh suit would be wholly illegal and therefore, would oppose any such prayer being considered as the appeal itself would have to fail on merits.

(3.) IN the result, the appeal is allowed. The judgment and decree of the appellate court as well as the trial court are set aside, with liberty to the Appellant to prosecute the suit as stated above. This shall be subject to payment of costs of Rs. 15,000/ - to the Defendants, jointly, before the trial court at the next date of hearing, notice of which shall be issued by the trial court to the parties.