when remand occurs – failure of complete examination of evidence and documents =When 6 witnesses were examined and number of dcouments were marked – High court by merely examaining Ex.D14 and D10 came to conclusion that the case of the plaintiff is not correct and dismissed the suit granted by the trial court = we are of the view that in this case the High Court has not dealt with the appeal in the manner which is contemplated in law. The contentions of the parties and the evidence which has been adduced, be it, oral or documentary has not been discussed. In view of this, interest of justice requires that the impugned judgment be set-aside and the matter be remanded back to the High Court so that the appeal may be heard and decided afresh.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4422 OF 2008
IRAPPA & ORS. Appellant(s)
VERSUS
CHIDANANDAPPA & ORS. Respondent(s)
O R D E R
This appeal is filed against the judgment of the
High Court of Karnataka in R.F.A. No.488 of 2004, by
which the learned Single Judge allowed the appeal filed
by the defendants, in the suit, and dismissed the suit
which has been decreed by the trial Court.
Appellants, who were the plaintiffs in the suit and
respondents before the High Court, claimed that the land
was their ancestral property and belonged to one
Hanumanthappa s/o Basayya. The genealogy, on which the
appellants claimed their right, is as follows:
Veerappa
(Propositus)
?
? ?
Basappa Basayya
? ?
Nanajappa Hanumanthappa
? ?
? ? Gangappa
Nagappa Kotravva (died unmarried and
issueless)
1

The brief facts according to appellants is as
follows. One Veerappa was propositus of the family. He
had two sons, namely, Basappa and Basayya. Basappa had a
son know as Nanajappa. Basayya had a son called
Hanumanthappa. On the death of Basayya his son
Hanumanthappa became owner of the property. Hanumanthappa
had only one son called Gangappa. Hanumanthappa also died
about 35 years ago. After his death, properties devolved
to his only son Gangappa, who died untimely about 25
years ago. His mother predeceased him. Upon Gangappa’s
death his branch of the family came to an end. In other
branch, under which the appellants claim, Basappa had a
son by name Nanjappa and a daughter Kotravva. Kotravva
was also given in marriage to one Nagappa and she died
issueless. The appellants are the children of Nagappa.
After the death of Gangappa, 4th plaintiff, Shivappa
started cultivating the lands. The further case is that,
on the death of Gangappa, the plaintiffs have succeeded
to the suit properties being Class-II heirs in accordance
with Hindu Succession Act and became the owners. There
are other allegations with which we are not concerned
having regard to the course we intend to adopt in this
case.
2

Apparently, the respondents, who are defendants in
the suit, on the other hand denied the title of the
appellants. It is their case that Hanumanthappa s/o
Basappa alias Basayya has expired and he has brothers
called as Basappa, Bhimappa and a sister Basamma. Basamma
is not alive. Hanumanthappa s/o Basappa alias Basayya has
children named as (1) Channabasappa, (2) Gangamma, (3)
Mahalingappa and (4) Gowramma. Channabasappa, Gangamma
and Mahalingappa had expired. Among them Channabasappa
had children named (1) Revakka, (2) Chennamma, (3)
Rudramma, (4) Chidanandappa, (5) Chennaveereppa and (6)
Kalaveerappa. Chennamma’s husband is stated to be the 2 nd
plaintiff. In short, the case appears to be that apart
from Gangappa s/o Hanumanthappa there were other
children. Thus on the death of Gangappa it is not, as if,
the plaintiffs could claim any right as Clause-II heirs
under the Hindu Succession Act.
On the side of plaintiffs, the first plaintiff was
got examined as PW1. Besides PW2 and PW3 were also
examined. Documents were marked as Ex.P1 to Ex.P23. On
the side of defendants, first defendant was examined as
DW1. DW2 and DW3 were also examined and the defendants
got marked as Exs.D1 to D30.
3

On a consideration of evidence, trial Court found
that plaintiffs have made out a case for decreeing the
suit. Accordingly, it was declared that the plaintiffs
were the absolute owners of the suit schedule property.
It is ordered that they are in possession and cultivation
of the suit properties and a permanent injunction is
hereby passed restraining any person from interfering
with peaceful possession and cultivation of the suit
schedule properties by the plaintiffs.
In the impugned judgment, the High Court holds inter
alia as follows:
“The defendants in evidence, have marked
Ex.D14-Gift Deed executed by Hanumanthappa who
is none other than the cousin brother of
Nanjappa. The recitals of the deed discloses
that Nagappa is their son-in-law and not a son.
The deed further states that one Kotravva d/o
Nanjappa was married to Nagappa. The issue born
out of wedlock, predeceased Kotravva and
Nagappa. Nagappa was totally devoted towards
the welfare of Hanumanthappa. Therefore, he
gets another lady married to Nagappa and
donates all her properties to Nagappa with a
hope that he will take care of her welfare and
also attend to her obsequies after her demise.
The reading of contents of Ex.D-14 in between
lines disclose that Hanumanthappa and Nanjappa
had no son by name Nagappa. Nagappa mentioned
in the deed is only her son-in-law. Ex.D10 is a
partition deed executed between Chennabasappa
4

and Mahalingappa claiming to be the sons of
Hanumanthappa. Ex.D10 is produced by the
plaintiff. The said documents clearly establish
that Hanumanthappa had two sons and in the year
1980, they entered into partition. The
contention that the suit property is not the
subject matter of the partition deed is beside
the point. The fact remains that by Ex.D10 it
establishes that Hanumanthappa had two sons
namely Chennabasappa and Mahalingappa. However,
Hanumanthappa dies leaving behind sons and
daughters. The plaintiffs cannot under any
circumstances claim the right of inheritance to
the property of Hanumanthappa. It is pertinent
to note that under section 8 of the Hindu
Succession Act, brothers� sons and sisters� son
are also categorised as Class II heirs.�
The High Court further notes the argument that
Nagappa is the son of Nanjappa who is only a cousin of
Hanumanthappa. Cousin and cousin�s children are not
entitled to any inheritance under Section 8 of the Hindu
Succession Act. It is stated that in that view of the
matter, the plaintiffs are not entitled to claim the title
to the property by inheritance. It is further found that
there is no evidence produced by way of land revenue
records to prove possession and cultivation by the
plaintiffs. When the suit was instituted, the trial Court
granted interim injunction which was later vacated. The
plaintiffs were not found entitled to the relief of
5

declaration and injunction and the appeal is allowed with
costs throughout and the suit is dismissed.
Heard learned counsel for the parties and perused
the record.
Learned counsel for the appellants submits that the
judgment of the High Court would reveal departure from
the manner in which the Court contemplates an appeal
filed under Section 96 of the Code of Civil Procedure
should be dealt with. The appellate court is to consider
appeal by re-apprising the evidence. In this case, as
many as six witnesses were examined, out of which three
were from the side of the plaintiffs and three were from
the side of the defendants. Several documents were
marked.
After hearing the learned counsel for the parties,
we are of the view that in this case the High Court has
not dealt with the appeal in the manner which is
contemplated in law. The contentions of the parties and
the evidence which has been adduced, be it, oral or
documentary has not been discussed. In view of this,
interest of justice requires that the impugned judgment
be set-aside and the matter be remanded back to the High
Court so that the appeal may be heard and decided afresh.
Accordingly, we allow the appeal, set-aside the judgment
6

of the High Court and we request the High Court that the
appeal be decided within a period of four months from the
date of production of this order. Parties are directed to
bear their own costs.
……………….J.
(ASHOK BHUSHAN)
……………….J.
(K.M. JOSEPH)
New Delhi
January 24, 2019
7

ITEM NO.109 COURT NO.13 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4422/2008
IRAPPA & ORS. Appellant(s)
VERSUS
CHIDANANDAPPA & ORS. Respondent(s)

Date : 24-01-2019 This appeal was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE ASHOK BHUSHAN
HON’BLE MR. JUSTICE K.M. JOSEPH
For Appellant(s)
Mr. Rajesh Mahale, AOR
Mr. Krutin R. Joshi, Adv.

For Respondent(s)
Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
Mr. Tarun Thakur, Adv.

      UPON hearing the counsel the Court made the following
                         O R D E R

Appeal is allowed in terms of the signed order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed order is placed on the file)
8