MUNIVENKATAPPA Vs. CHIKKAPAPANMIA

JUDGEMENT

(1.) in this second appeal presented under Section 100 of the Civil Procedure Code referred to division bench under Section 9 of the Karnataka High Court Act, 1961, the following question of law arises for consideration:

(2.) brief facts of the case are these: according to the appellant munivenkatappa, he purchased 2 acres of land in sy. No. 45/5 of kooteri village, kasaba hobli, kolar taluk, by registered sale deed dated 18-1-1951 (marked as ex. D-4 in the suit) and that he purchased another 32 guntas of land in the same survey number under a registered sale deed dated 5-3-1953 (marked as ex. D-5 in the suit) from one hanumanthappa, the father of the respondent. O.s. No. 41 of 1974 was filed by respondent-chikkapapamma praying for declaration and possession of the very property purchased by the appellant under the two registered sale deeds from hanumanthappa. The case of the respondent-plaintiff was that on the date on which the appellant purchased the two items of lands from hanumanthappa, he had no title as he had sold the said items of lands by registered sale deed dated 23-7-1947 (marked as ex. P-1) in favour of one munibyrappa and the respondent-plaintiff purchased the same from the said munibyrappa by registered sale deed dated 4-10-1947 (ex. P-2). One of the main issues for consideration before the court of munsiff was, as to whether the plea of the respondent that on the date on which the appellant claimed that he had purchased the suit schedule lands under two registered sale deeds dated 8-1-1951 (ex. D-4) and 5-6-1953 (ex. D-5) from hanumanthappa, he did not acquire any right or title to the property, for the reason that on the said date hanumanthappa did not have any title to the property, he having sold the same to munibyrappa on 23-4-1947 (ex. P-1) and the same having been purchased by the respondent from him under registered sale deed dated 4-12-1947 (ex. P-2) was correct. The trial court recorded a finding in favour of the respondent and decreed the suit. Aggrieved by the judgment and decree of the court of munsiff, the appellant preferred an appeal before the principal civil judge, kolar. The appellate court affirmed the findings recorded by the court of the munsiff and dismissed the appeal presented by the appellant. Along with this appeal presented under Section 100 of the c.p.c., the appellant has made an application for receiving certified copies of two registered sale deeds, dated 11-3-1948 and 8-1-1951, which are produced along with the application and the certified copy of the record of rights in which there are entries about the aforesaid two sale deeds. The appellant has stated in the application that the respondent after purchasing the suit schedule land under registered sale deed dated 4-12-1947 from munibyrappa had sold the property once again in favour of munibyrappa on 11-3-1948 and munibyrappa had in turn sold the property in favour of hanumanthappa by registered sale deed dated 8-1-1951 and it is only thereafter the appellant purchased the land from hanumanthappa under two registered sale deeds dated 8-1-1951 and 5-1-1953. The appellant has stated that the respondent who had executed the sale deed in favour of munibyrappa on 11-3-1948 was not only aware of the same but was also aware of the fact that the said munibyrappa had in turn sold the property to hanumanthappa on 8-1-1951 under a registered sale deed, whereas the appellant was not at all aware of the same. He has also stated that in the record of rights extract produced by the respondent as exhibit p-22, there was no reference at all to the sale deed dated 11-3-1948 and that inspite of efforts the appellant did not get relevant information. He has further stated that when he again made efforts with the help of an educated friend of his, he came to know that the plaintiff had sold the land by registered sale deed dated 11-3-1948 i.e., only after he secured on 13-11-1978 the correct record of rights extract and he also came to know from it that by another sale deed dated 8-1-1951, his vendor had acquired the title to the suit property. The appellant has therefore prayed for receiving the three documents as additional evidence in exercise of the power under order 41, Rule 27 of the code. The appellant states that if the two registered documents are taken as additional evidence in the case, it knocks at the bottom of the case put forward by the respondent in the plaint and it fully establishes the case of the appellant that as on the date on which the appellant purchased the lands, i.e., on 8-1-1951 and 5-6-1953 from hanumanthappa, the latter had the title to sell those properties and therefore the suit filed by the respondent was liable to be dismissed.

(3.) the application for receiving additional evidence has been vehemently opposed by Sri Gopala gowda, the learned counsel for the respondent. He submitted that in view of Section 100 read with Section 103 of the code, this court had no jurisdiction to go into the correctness of a finding of fact and in view of these two Provisions, the Provisions contained in order 41, Rule 27 of the code and order 42 of the code, which makes the Provisions contained in order 41 applicable to second appeals only 'as far as may be', would be of no assistance to the appellant, for, that provision has to be read with sections 100 and 103 of the code and if so read there was no power vested in the court hearing a second appeal to admit any additional evidence.