BASAPPA v. SHANKRAPPA (SINCE DECEASED) BY HIS L. Rs
2010-02-01
V.JAGANNATHAN
body2010
DigiLaw.ai
JUDGMENT Heard the learned Counsel for the appellant and respondents. 2. This second appeal is by the defendant before the Trial Court aggrieved by concurrent findings of the Courts below inasmuch as the suit filed by the respondents-plaintiffs for declaration and permanent injunction came to be decreed by the Trial Court and the appeal preferred by the defendant was dismissed by the lower Appellate Court. 3. Learned Counsel for the appellant submitted that the Courts below were in error in recording a finding that the possession of the suit property was with the plaintiffs. It did not take into account the document produced by the appellant and therefore taking this Court through the judgments of the Courts below submission made is that as regards the question of who is in possession of the suit property, the finding recorded by the Courts below are perverse and as such substantial question of law arises for consideration. 4. On the other hand, Sri A.S. Patil, learned Counsel for the respondents-plaintiffs submitted that the Courts below have taken the right view in decreeing the suit of the plaintiffs and the documents produced by the plaintiffs establishes that the plaintiffs have been in possession of the suit property and the mutation entries also reflect this position. Apart from this submission made is that the appellant examined as D.W. 1 has admitted in the course of his evidence that during the lifetime of his father, there was an arrangement effected between his father and the sons and that the said document has not been signed by the appellant and therefore he does not know as to the mutation Entry No. 4082 which reflect the mutual partition that took place by way of timely arrangement. Therefore, taking into account the half share that fell to the plaintiffs in respect of RS. No. 186/1 and the other half share which belong to plaintiffs' brother Nagappa also having been sold in favour of the plaintiffs by Nagappa's wife after the death of Nagappa, the plaintiffs have established their ownership of the entire land in RS. No. 186/1 and therefore the Court below did not commit any error and the appeal therefore lacks merit and no substantial question of law also arises.
No. 186/1 and therefore the Court below did not commit any error and the appeal therefore lacks merit and no substantial question of law also arises. Another submission made is that even during the pendency of the suit, the Trial Court has granted injunction in favour of the plaintiffs and that order is not questioned by the appellant before any higher forum. As such, the question of any substantial question of law being involved in this case does not arise. 5. Having thus heard both sides and after going through the judgments of the Court below, the only point that arises for consideration is: "Whether any substantial question of law arises for consideration in this second appeal?" 6. First of all the appeal is against the concurrent findings of facts and therefore unless the view taken by the Courts below can be termed as perverse or against the evidence on record, it is impermissible for this Court under Section 100 of the Civil Procedure Code, 1908 to interfere with the concurrent findings of fact. Such is the position in law as laid down by the Apex Court in the recent decision in the case of Narayanan Rajendran and Another v Lekshmy Sarojini and Others. 7. Having regard to the aforesaid decision wherein the scope of this Court in second appeal is considered by the Apex Court and the parameters within which this Court can interfere against the concurrent findings of facts and having examined the materials placed, I find that insofar as RS. No. 186/1 is concerned, the facts is not in dispute that property was the subject-matter of mutual partition among the family members and the plaintiff-respondent 1 being one of the three sons of Rudrappa Angadi, was given half share in RS. No. 186/1 and the other half was given to his brother Nagappa. Likewise in RS. No. 111/2 half share went to the share of the defendant and other half went to the share of Gangappa. Subsequently, following the death of Nagappa his wife executed a sale deed in respect of half share held by Nagappa to the plaintiffs. This is established through Ex. P. 6-sale deed produced by the plaintiffs.
Likewise in RS. No. 111/2 half share went to the share of the defendant and other half went to the share of Gangappa. Subsequently, following the death of Nagappa his wife executed a sale deed in respect of half share held by Nagappa to the plaintiffs. This is established through Ex. P. 6-sale deed produced by the plaintiffs. The said sale deed is dated 27-5-1993 and this fact has been admitted by none other than the wife of Nagappa herself who has deposed in her evidence that after the death of her husband in the year 1976, she sold the half share in the land RS. No. 186/1 to the plaintiffs in the presence of elders and she has also stated that as per the partition her name was mutated as minor guardian for her son. The plaintiffs have also produced Ex. P. 14 which is the certified copy of the sale deed indicating that the plaintiffs having purchased the half share of Gangappa, thus the mutation Entry No. 4082 was produced by the plaintiffs before the Trial Court to establish that they are in possession of suit property completely as absolute owners. 8. On the appellant's behalf documents were produced to show that the appellant also had half share in R.S. No. 111/2 and purchased the other half share of Gangappa. The appellant also does not dispute the fact of injunction being granted in favour of the plaintiffs by the Trial Court. As far as the possession of the suit property is concerned, both the Courts have held that the plaintiffs by virtue of the documents produced by them and the defendant having admitted the family partition, were in possession of suit property and consequently they are entitled for declaration and permanent injunction as sought for which cannot be termed as erroneous either on facts or in law. 9. Another aspect to be taken into account is that the appellant did not even question the order of injunction which was granted in favour of the plaintiffs. In the light of the aforesaid discussion, I see no substantial question of law arising for consideration. Hence, the appeal is dismissed.