SHRIMANTH RAO v. SHAMRAO — 1995 DIGILAW 425 (KAR)

H. N. TILHARI, J. ( 1 ) THIS is plaintiffs second appeal from the judgment and decree dated june 26th, 1984, delivered by district judge, gulbarga in regular civil appeal No. 40 of 1982 (Shamrao and Others v. Shrimanthrao), arising out of judgment and decree dated 10-8-1982 delivered by civil judge, gulbarga in o. s. No. 87 of 1978, whereby the lower appellate court has allowed the plaintiffs appeal in part, but maintained the trial court decree for partition and separate possession, with respect of 1/4th share in item nos. 4 and 7 (14 acres and 8 guntas of land in survey No. 160 ). As regards other suit properties the lower appellate court set aside the trial court decree and dismissed the suit and appeal with regard thereto. ( 2 ) THE brief facts of the case are, that the plaintiff-appellant filed a suit with allegations to the effect that defendant 1 i. e. , respondent 1 has been his father, who had married twice the two sisters i. e. , in other words according to the plaintiffs case, plaintiffs mother and the step mother were sisters. From the first wife, defendant 1 had two sons, i. e. , plaintiff-appellant and defendant 3. Defendant 4 who is impleaded as respondent 4, is the second wife of defendant 1 and the step mother of the plaintiff and defendant 3, and defendant 2 is the son of defendant 1 from the second wife of defendant 1, in other words the step brother of plaintiff-appellant. According to the plaintiffs case, the plaintiff and the defendants framed joint hindu family. According to the plaintiffs case, the first defendant was the kartha of the family. Plaintiff alleged and according to admitted case of the parties, the family owned land measuring 14 acres 8 guntas in item No. 7, bearing survey No. 160 and also two rooms in the house being item No. 4 in the plaint schedule. Both these properties have been situate in madiyal village. It is also an admitted fact that first defendant was working as a primary school teacher with effect from 1937. According to the plaintiff's case, all the properties in the suit which consisted of 10 items, as mentioned in the schedule to the plaint had been joint family properties, belonging to the plaintiff, plaintiffs father and plaintiffs brothers i. e. , defendants 1 to 3. According to the plaintiff's case, all the properties in the suit which consisted of 10 items, as mentioned in the schedule to the plaint had been joint family properties, belonging to the plaintiff, plaintiffs father and plaintiffs brothers i. e. , defendants 1 to 3. According to the plaintiff in addition to the ancestral properties, other properties mentioned in the plaint were acquired out of the joint family funds and joint family income derived from ancestral property, the plaintiff claimed himself to be entitled to th share in all the suit properties. It may be mentioned here that item nos. 9 and 10 of the suit properties have been 25 tolas of gold and Rs. 20,000/- cash and item No. 2 consisted of two plots situated in brahmapur, gulbarga. According to the plaintiff, plaintiff had given a notice to his father-defendant 1 seeking partition and separate possession of his share in the suit properties, but as no compliance of the notice had been done, plaintiff filed a suit for the reliefs mentioned earlier. ( 3 ) DEFENDANTS 1 to 3 contested the suit by filing joint writ tenstatement, while no written statement being filed by defendant 4, the suit remained ex parts. According to the pleadings of defendants 1 to 3, the land measuring 14 acres and 8 guntas i. e. , item No. 7 and 2 rooms of the house item No. 4 were ancestral joint hindu family properties in which plaintiff had got the share. The defendant further alleged item nos. 2, 9 and 10 were not the joint family properties, nor the defendant was in possession of any gold or cash. The defendant further contended that item nos. 1, 3, 5, 6 and 8 and 5 acres and 135 guntas of land in item No. 7 were purchased by the first defendant out of his earnings and the first defendant constructed a room and a sofa in item No. 4 and that these properties the defendant denied to be the joint family properties. The defendant has asserted that the said properties were not the joint family properties and that plaintiff had no share therein. The defendant further contended that the family had been indebted to the tune of Rs. 8,000/- and it was the duty of the plaintiff to share that liability. The defendant has asserted that the said properties were not the joint family properties and that plaintiff had no share therein. The defendant further contended that the family had been indebted to the tune of Rs. 8,000/- and it was the duty of the plaintiff to share that liability. ( 4 ) ON the basis of the pleadings of the parties, the trial court framed the following issues :1. Whether the plaintiff proves that all the suit properties are the joint family properties? 2. Whether defendant 1 proves that joint family was at debt of Rs. 8,000/-? 3. What Order or decree ?. ( 5 ) AFTER considering the evidence on record, the trial court held that items of the properties in the suit, except item nos. 9 and 10, to be the joint family properties. It further held that plaintiff was entitled to th share, and that plaintiff was entitled to partition and separate possession thereof: ( 6 ) THE trial court decreed the plaintiffs suit for partition and separate possession of th share in all the suit immovable properties, as joint family properties, except item nos. 9 and 10. The trial court further held that plaintiff had failed to prove that 25 tolas of gold and cash to the tune of Rs. 20,000/- was with the family and first defendant failed to prove that there was any family debt to the tune of Rs. 8,000/ -. On account of the above findings, the trial court dismissed the plaintiffs claim with regard to item nos. 9 and 10. ( 7 ) HAVING felt aggrieved from the judgment and decree of the trial court, the defendant preferred the first regular civil appeal in the court of district judge, gulbarga. The learned district judge, gulbarga, after having heard the counsel for the parties and after having considered the material of evidence on record held that suit item nos. 1, 3, 5, 6, 8 and part of item No. 7 (i. e. , the land other than 14 acres and 8 guntas), have been the self-acquired property of defendant-respondent 1. The lower appellate court set aside the trial court's finding with respect to these items, that these items were joint family properties of first defendant and his sons. It held these item nos. The lower appellate court set aside the trial court's finding with respect to these items, that these items were joint family properties of first defendant and his sons. It held these item nos. 1, 3, 5, 6, 8 and part of item No. 7 to be the self-acquired property of defendant-respondent 1, the lower appellate court held that items 1 and 8 were purchased by defendant 1 vide, exs. D-10 and d-6 at the time when plaintiff was aged 10 or 15 years i. e. , during the minority of the plaintiff-appellant. It found that the sale deeds regarding these items have been in the name of plaintiff-appellant and in those sale deeds plaintiff-appellant was mentioned as the purchaser, but as plaintiff was minor and these properties item nos, 1 and 8 were purchased by defendant 1 from his self-acquired income. The lower appellate court observed that plaintiff and 3rd defendant were the step sons of 4th defendant and were the sons of defendant 1 from his first wife. It further observed "it is true that she is none other than the younger sister of the mother of the plaintiff. In our society, people do think that a step mother is always a step mother and however closely related she might be to the real mother, she cannot take the position of a real mother in her dealings with her step children. That may be the reason why the 1st defendant acquired suit item nos. 1 and 8 in the name of plaintiff-appellant" the court as such held that item nos. 1 and 8 cannot be taken to be the coparcenary properties. The lower appellate court thus considering the matter held that item nos. 1, 3, 5, 6, 8 and 5 acres and 15 guntas of land in item No. 7 covered by ex. D-13 to be the self-acquired properties, acquired by defendant 1. It may be clarified that defendant 1 here did not put any case nor pleaded that properties purchased at item nos. 1 and 8 were benami transactions in the name of the plaintiff and as such I do not think it was proper on its part to make any observations. It may be kept open and as and when such question arise, it may be decided. ( 8 ) ANY how these properties were not held to be the joint family properties. It may be kept open and as and when such question arise, it may be decided. ( 8 ) ANY how these properties were not held to be the joint family properties. What had been held to be joint family property was property at item No. 4 and 14 acres and 8 guntas of land in survey No. 160 of item No. 7, and the lower appellate court held that the plaintiff-appellant had been entitled to th share in these two properties, which according to it have been the joint family properties. As regard the rest of the properties as mentioned earlier they have been held not to be the joint family properties and the lower appellate court thus allowed the defendant's first appeal and modified the trial court's decree to this extent that it dismissed plaintiffs claim with respect to all items except item No. 4 and 14 acres and 8 guntas of land of survey No. 160 i. e. , item No. 7. ( 9 ) HAVING felt aggrieved from the judgment and decree of the lower appellate court, the plaintiff has come up in second appeal. ( 10 ) I have heard Sri Niranjankumar holding brief for Sri Mahabaleshwar Gowda, learned counsel for the appellant at length and Sri Venkatachala learned counsel for defendant-respondents. ( 11 ) LEARNED counsel for the appellant submitted before me that the finding of the lower appellate court to the effect that items of properties namely those mentioned in schedule except item nos. 4 and 7 (only 14 acres 8 guntas of land of survey No. 160), were not the joint family properties, is erroneous and is vitiated by error of law, as according to the learned counsel for the appellant no accounts had been submitted of the personal income of defendant 1 to show as to what was his income from which he could, acquire the property. The learned counsel further submitted that the ancestral property namely nucleus had been shown by family in the form of 14 acres and 8 guntas of land. He submitted that when nucleus had been shown, it was rightly held by the trial court that all other properties should be deemed to have been acquired from the income of that property and the lower appellate court erred in law in setting aside that finding. He submitted that when nucleus had been shown, it was rightly held by the trial court that all other properties should be deemed to have been acquired from the income of that property and the lower appellate court erred in law in setting aside that finding. He submitted that the defendant-respondent did not furnish sufficient evidence to prove that the property was purchased by his self-acquired income. Learned counsel for the appellant also tried to urge that item nos. 1 and 8 of the schedule properties at least should have been held to be belonging to the plaintiff, as sale deeds in respect of those properties stood in the name of the plaintiff-appellant. ( 12 ) LEARNED counsel for the respondent contested the contention of the learned counsel for the appellant. Dealing with the last contention of the learned counsel for the appellant, learned counsel for the respondents Sri Venkatachala submitted that no such case has been pleaded either in the trial court or in the first appellate court by the plaintiff-appellant that item nos. 1 and 8 were exclusive properties of the plaintiff-appellant nor was any issue pressed as such at this stage, it would not be just and proper to allow the appellant to raise that contention or to consider the same. He submitted it may require many facts to be considered and it may require to be considered whether the transaction was benami in the name of plaintiff or not and there may be other circumstances such as, even though defendant 3 is the real brother of the plaintiff himself i. e. , second son of the defendant 1 from his first wife, no property appears to have been purchased in the name of that person nor is there the name of that person-defendant 3 in the deed. So he submitted that this point should not be allowed to be raised. Learned counsel for the respondents further submitted that the finding of the courts below that the items of properties nos. 1, 3, 5, 6, 8 and 7 (minus 14 acres 8 guntas of land of survey No. 160), have been the self-acquired property and have not been the joint family ancestral property, is nothing but a pure and simple finding of fact. 1, 3, 5, 6, 8 and 7 (minus 14 acres 8 guntas of land of survey No. 160), have been the self-acquired property and have not been the joint family ancestral property, is nothing but a pure and simple finding of fact. He submitted that evidence has been led by the parties before the courts below and the trial court relied on the plaintiffs evidence and discarded the defence evidence. But the lower appellate court considered the evidence of the parties and relied on the evidence led by the defendant-respondent. He submitted that question relating to quantum of evidence or adequacy of evidence or reliability of evidence, whether one evidence should be relied or other, these are the questions which do not relate to the realm of question of law or substantial question of law, such questions are questions which primarily relate to appreciation of evidence and do not involve any question of law or substantial question of law requiring this court to interfere with the pure and simple finding of fact. Therefore Sri Venkatachala submitted that the appeal being concluded by pure and simple finding of fact, it deserves to be dismissed. He further submitted, no doubt it is well settled that if there is a joint family nucleus, the nucleus which is sufficient enough to provide that income or the money for the purchase of the property is shown to exist, the presumption of the property being joint, may apply though that presumption is rebutable and here the presumption is rebutted as the court below has relied on the evidence led by the defendant. Except the above mentioned contentions, no other contentions have been raised by learned counsel for the parties. ( 13 ) I have applied my mind to the contentions made by the learned counsel for the parties and I have gone through the judgment and the records of the case. I find that there is some substance in the contention of the learned counsel for the respondent to the effect that the plea raised by the learned counsel for the appellant on the basis of the sale deeds, which are no doubt in the name of the plaintiff-appellant with respect to item nos. 1 and 8, had never been put or raised in the pleadings by the plaintiff-appellant, that plaintiff-appellant is the sole owner of the properties item nos. 1 and 8, had never been put or raised in the pleadings by the plaintiff-appellant, that plaintiff-appellant is the sole owner of the properties item nos. 1 and 8, on the basis of that sale deed nor has any case been pleaded that the purchase was in the benami name of the plaintiff, but he real owner was defendant 1. As this plea has never been raised before the courts below and having not been tried, and as it would require investigation of facts, it cannot be allowed to be raised and cannot be considered at this stage. If plaintiff is advised and subject to other pleas available and open to the defendant, if any to raise, these pleas in some other litigation he may raise thereon, at this stage it cannot be allowed to be raised. ( 14 ) AS regards the questions that the properties in disput enamely item nos. 1 to 8 minus item nos. 4 and 7 (14 acres 8 guntas of land in survey No. 160) were not the joint family ancestral properties and they were acquired by defendant 1 from his own income and not from any joint family nucleus, it is a pure and simple finding of fact. The question of quantum of evidence or question of reliability of the defence evidence, in the absence of documentary evidence or accounts relates to the simple appreciation of evidence and it does not relate to the realm of question of law nor does it raise any question of law. The jurisdiction of this court in second appeal is confined to question of law that too dubstantial question of law, this court is not entitled to reappreciate the evidence and to record its findings. It is well settled principle of law under Section 100, C. P. C. , that finding of fact howsoever erroneous it may be, the High Court in exercise of second appeal jurisdiction is not entitled to interfere with the same unless and unless it is shown that finding of fact is vitiated by error of law and error of law the nature of which has been explained by their lordships of the Supreme Court in many cases, Including the One Namely the Famous Case in V. Ramachandra Ayyar and Another v. Ramalingam Chettiar and Another , as well as the principles of law laid down in the case of Mst. Durga Chowdkrani v. Jawahir Singh Chowdhri and as explained by the division bench of the Allahabad High Court in the case of Abdul Shakur and others v. Kotwaleshwar Prasad and others, wherein the court explained the dictum that there is no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may be seem to be, if the first appellate court had before it evidence proper for its consideration in support of the finding. ( 15 ) IN the present case no error of law of substantial nature has been indicated. Whether the defence evidence is reliable or not and should have been relied or not in the absence of documentary evidence, are questions which purely relates to the realm of appreciation of evidence, and this court is not entitled to enter into that sphere in the absence of any error of law. ( 16 ) THAT being the position, this appeal is concluded by factpure and simple. The second appeal as such is hereby dismissed as without merits, with costs. --- *** --- .