MANJAPPA Vs. KASHAVVA AND OTHERS

JUDGEMENT

(1.) THIS appeal has come up today for consideration on IAs. 1/2007 and 2/2007 i.e., for stay of the judgment and decree of both the courts below and as well as for production of additional documents. After hearing the learned Counsel for parties for some time regarding the application filed for production of additional documents and on going through the said documents, it is seen that the documents now sought to be produced are the documents, which are secured by the appellant herein, who is plaintiff in the original suit subsequent to disposal of the appeal in RA. No. 6/2004, the judgment of which is under challenge in this proceedings. It is also seen that this appeal is already admitted to consider the following substantial question of law, which was framed on 30.11.2009: Whether the courts below were right and justified in placing reliance on Ex. D2 to come to the conclusion that there was an allotment in favour of the defendants by the BDO on 14.10.1976 of the very same property over which the plaintiff claims injunction having due regard to the fact that Ex. D2 has come into existence after the suit was filed and that admittedly the said entries reflected in Ex. D2 came into existence on the strength of the dismissal of the suit filed by the plaintiff, for default during the year 2001. For the same reasons, whether both the courts were right and justified in placing reliance on the subsequent documents namely the tax paid receipts and the residence certificate produced by the defendant?

(2.) AFTER hearing the parties for some time on IA. 2/2007 filed seeking production of additional documents, it is seen that the entire dispute between plaintiff and defendants with reference to suit schedule property is, whether said property was allotted in favour of defendants in the year 1976 as contended in written statement filed by them or it is allotted in favour of plaintiff in the year 1998 for the first time without there being any encumbrance on said property. It is seen that on the basis of documents available on record both the courts below have given their finding, which is subject matter of this second appeal.

(3.) ACCORDINGLY , this second appeal is allowed. The judgment and decree of both the courts i.e., judgment and decree dated 27.11.2006 passed in RA. No. 6/2004 on the file of Additional Civil Judge (Sr. Dn.), Ranebennur and as well as judgment and decree dated 11.4.2002 passed in OS. No. 256/1999 on the file of Principal Civil Judge (Jr. Dn.), Ranebennur, are hereby set aside. The matter is remitted back to Principal Civil Judge (Jr. Dn.), Ranebennur for fresh consideration with liberty to appellant herein, who is plaintiff in the original suit to produce additional documents and seek for marking of the same after giving sufficient opportunity to the defendant to subject the same for cross -examination. While doing so, both the parties also should be given sufficient opportunity to lead further evidence, if any. Thereafter, the trial Court shall dispose of the suit on the basis of the material evidence available on record in addition to the evidence, which is now sought to be produced by both the parties. To avoid further delay in the matter, it is hereby made clear that the remanded matter shall be called before the Court of Civil Judge (Jr. Dn.), Ranebennur on 30.9.2013. On which day, the plaintiff and defendant in said suit shall appear before the Court below either in person or through their Counsel without fail. The appellant is permitted to withdraw the documents produced along with IA. 2/2007 in this appeal and to produce the same before the trial Court. In view of the appeal being allowed and remanded, IA. I/2007 filed seeking stay of judgment and decree of both the courts below does not survive for consideration.