Case Note & Summary
The case arose from a regular second appeal filed by the legal representatives of the original defendant against the judgment of the first appellate court in a suit for recovery of possession, cancellation of revenue entries, and mesne profits. The suit property comprised 31 guntas in Survey No.25/8P, originally inam land granted to Ningappa and his wife Kariyawwa. The plaintiff claimed to be the adopted son of Ningappa and asserted title through a Will executed by Ningappa in 1968 and a subsequent joint re-grant order of 1980 in his and Kariyawwa's names. After Kariyawwa's death intestate in 1991, the defendant allegedly created a bogus Will of Kariyawwa, got revenue entries mutated, and forcibly entered possession. The defendant denied the adoption and set up a Will of Kariyawwa dated 26.09.1983 bequeathing her half share in his favour. The trial court dismissed the suit. The plaintiff appealed, and the first appellate court initially decreed the suit, but on the defendant's second appeal, the High Court remanded the matter for fresh disposal. After remand, the first appellate court again allowed the appeal, granting recovery of possession but dismissing other reliefs. The defendant then filed the present second appeal. The High Court framed three substantial questions of law regarding the applicability of Section 6 of the Specific Relief Act, reliance on the unproved Will Ex.P2, and the effect of the re-grant order Ex.P3. Upon perusal, the High Court found that the first appellate court had failed to frame points for determination as required under Order XLI Rule 31 CPC and had not reappreciated the evidence on the Will or the re-grant order. The judgment was found to be perfunctory and lacked discussion of rival contentions. Consequently, the High Court allowed the second appeal, set aside the first appellate court's judgment, and remanded the case for fresh disposal. It directed the first appellate court to provide parties an opportunity to lead further evidence, particularly on proof of the Wills as mandated by Section 68 of the Indian Evidence Act, and to decide all issues, including the application of Section 6 and the legal effect of the re-grant order. Costs were made easy.
Headnote
A) Civil Procedure - First Appellate Court's Duties - Order XLI Rule 31 CPC - First appellate court must formulate points for determination and reappreciate entire evidence, especially when reversing trial court's findings - High Court set aside first appellate court's judgment for failure to consider rival contentions and evidence on Wills and re-grant order, and remanded for fresh disposal with opportunity to lead evidence (Paras 14-18). B) Evidence - Proof of Will - Section 68 Indian Evidence Act, 1872 - A Will must be proved by examining at least one attesting witness; mere marking of certified copy is insufficient - High Court directed first appellate court to provide opportunity to prove Wills Ex.P2 and Ex.D1 as per law (Paras 17, 21-23). C) Specific Relief - Recovery of Possession - Section 6 Specific Relief Act, 1963 - Suit for recovery of possession based on title is not barred by Section 6 if dispossession is not shown to be within six months or title is established - High Court observed that first appellate court's finding on non-applicability of Section 6 was not based on proper evidence (Paras 14-15). D) Property Law - Re-grant of Inam Land - Sections 4, 5 Karnataka Village Offices Abolition Act, 1961 - Re-grant order confers joint title to re-grantees; effect on subsequent possession must be examined - High Court directed reconsideration of Ex.P3 re-grant order and its impact on title and possession (Paras 22, 24-25).
Issue of Consideration
Whether the lower appellate court was justified in holding that the suit does not fall under Section 6 of the Specific Relief Act; Whether the lower appellate court was justified in allowing the appeal solely relying on Ex.P2, an unproved Will; Whether the courts below were justified in relying on Ex.P3, the re-grant order showing joint re-grant of Survey No.25/8P to plaintiff and Kariyavva
Final Decision
The Regular Second Appeal is allowed. The judgment and decree dated 17.11.2012 passed in R.A. No. 114/2002 by the I Additional Senior Civil Judge, Davangere, is set aside. The said appeal (R.A. No. 114/2002) is remitted to the first appellate court for fresh disposal in accordance with law, with liberty to parties to lead further evidence, particularly on proof of Wills Ex.P2 and Ex.D1 as required under Section 68 of the Indian Evidence Act. The first appellate court shall frame proper points for determination and decide all issues. No order as to costs.
Law Points
- Wills must be proved by examining attesting witnesses under Section 68 Indian Evidence Act
- Section 6 Specific Relief Act does not bar suit based on title
- first appellate court must frame points for determination and reappreciate evidence under Order XLI Rule 31 CPC
- re-grant order confers joint title
