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2019 DIGILAW 1362 (KAR)

L. R. Onkarappa v. Basavarajappa

2019-06-20

K.S.MUDAGAL

body2019
JUDGMENT : K.S. Mudagal, J. This plaintiff's second appeal arises out of the judgment and decree dated 20.01.2017 in Regular Appeal No.8/2016 passed by the I Additional Senior Civil Judge, Chitradurga. 2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the plaintiff and confirmed the judgment and decree dated 03.12.2015 in O.S.No.218/2008 passed by the III Addl.Civil Judge, Chitradurga. 3. By the said judgment and decree, the Trial Court dismissed the suit of the plaintiff for declaration of her title to the suit property, possession and declaration that the sale deed dated 19.1.1995 executed by defendant No.2 in favour of defendant No.3 does not bind her and for mesne profits. 4. The suit was filed by one Thippamma against Basavarajppa, Kunnappa and Gorappa - defendant Nos.1 to 3 respectively. 5. Subject matter of the suit was land bearing Sy.No.17/2AP measuring 1 acre 14 guntas of Vijapura, Hireguntanur Hobli, Chitradurga Taluk. When the matter was pending in appeal, plaintiff Thippamma died and Onkarappa, the present appellant came on record contending that original plaintiff Thippamma has executed a Will in his favour in respect of the suit schedule property. The said Onkarappa/appellant is none else but the son of first defendant Basavarajappa. 6. Case of the plaintiff in brief is as follows: Plaintiff's husband Chikkappa and Neelappa, father of defendant Nos.1 and 2 were the brothers. In an oral partition between her husband and defendant Nos.1 and 2, which took place about 21 years prior to the suit, the suit property and land bearing Sy.No.11/1P1 measuring 2 acres 7 guntas had fallen to the share of her husband. Defendant No.2 has illegally sold the property, which had fallen to her husband's share, to defendant No.3 under the sale deed dated 19.1.1995. Thus, sought the above reliefs. 7. Defendant No.2 did not appear to contest the suit. Defendant No.1 filed written statement conceding to the claim of the plaintiff. Defendant No.3 alone contested the suit denying the plaint averments. He contended that the suit is the outcome of collusion between the plaintiff and defendant Nos.1 and 2. 8. On the basis of the pleadings, the trial court framed the following issues: "1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property by virtue of oral partition and the said suit schedule property has fallen to her husband's share? 2. 8. On the basis of the pleadings, the trial court framed the following issues: "1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property by virtue of oral partition and the said suit schedule property has fallen to her husband's share? 2. Whether the plaintiff proves that the sale deed executed by defendant No.2 in favour of defendant No.3 is not binding on her? 3. Whether the plaintiff is entitled for declaratory relief sought for? 4. Whether the defendant No.3 proves that, the suit schedule property was fallen to the share of defendant No.2 through partition deed and thereby the defendant No.2 had right to sell the suit land to him? 5. What decree or order? 9. The parties adduced evidence. On behalf of the plaintiff, PWs-1 and 2 were examined and Exs.P1 to P6 were marked. On behalf of the defendants, DWs-1 to 3 were examined and Exs.D1 to D4 were marked. 10. The trial court after hearing the parties dismissed the suit on following grounds: (i) That plaintiff has failed to prove the alleged oral partition between her husband and defendant Nos.1 and 2; (ii) The suit is the outcome of collusion between plaintiff and defendant No.1; (iii) Defendant No.1 has set up the plaintiff to file the suit to make wrongful loss to the third defendant. 11. Aggrieved plaintiff challenged the said judgment and decree before the first appellate court in R.A.No.08/2016. The first appellate court concurring with the findings of the trial court dismissed the appeal. 12. Sri. B.M. Siddappa, learned Counsel appearing for the appellant seeks to assail the judgments and decrees of the courts below on the following grounds: (i) DW-3, the witness of defendants has admitted in his cross-examination that the suit property had fallen to the share of the husband of the plaintiff and that admission was overlooked; (ii) According to defendant No.3 and his own sale deed Ex.D1, defendant No.2 acquired the property under a partition deed, but defendant No.3 suppressed that document, which could have thrown light in the matter; these aforesaid points constitute the substantial question of law. 13. Per contra, Sri. Spoorthy Hegade Nagaraja, learned Counsel for respondent No.3 submits as follows: (i) When the plaintiff comes to the court, burden of proving her case of partition was upon her. 13. Per contra, Sri. Spoorthy Hegade Nagaraja, learned Counsel for respondent No.3 submits as follows: (i) When the plaintiff comes to the court, burden of proving her case of partition was upon her. (ii) Though the alleged partition had taken place 21 years prior to 2008, no material like any revenue record was produced to show that any such partition had taken place and that was acted upon. (iii) PW-1 in her cross-examination admits that she resides with defendant No.1; (iv) Though Ex.P1 was produced to contend that plaintiff has bequeathed the suit schedule property in favour of son of defendant No.1, in her cross-examination plaintiff/PW-1 denies the execution of such Will. These facts go to show that the suit is generated by defendant No.1. 14. This being a second appeal under Section 100 CPC can be admitted for hearing only if the appellant makes out substantial question of law in the case. 15. The Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (Dead) by LRs., (2001) AIR SC 965 has held that on the question of fact, the first appellate court is the last court. It was further held that all questions of law do not become substantial question of law and unless some perversity is shown in the judgments of courts below, the High Court cannot interfere with the said judgments and decrees invoking Section 100 CPC. 16. In Gurnam Singh (Dead) by LRs & Others vs. Lehna Singh (Dead) by LRs., 2019 AIR SC 1441, it was held that the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 amendment is confined only when the second appeal involves a substantial question of law. It was further held, the existence of a 'substantial question of law' is a sine qua non of exercise of jurisdiction under Section 100 CPC and unless it is shown that conclusions drawn by the lower court were erroneous being (i) contrary to the mandatory provisions of the applicable law or (ii) contrary to law as pronounced by the apex court or (3) based on an inadmissible evidence or no evidence. 17. 17. Having regard to those judgments, now this Court has to see whether the judgments and decrees of the courts below are contrary to mandatory provisions of applicable law or the precedents rendered by the apex court or they are based on inadmissible evidence or no evidence. 18. When the plaintiff approached the court claiming that there was an oral partition between her husband and defendant Nos.1 and 2 about 21 years back, the burden of proving said fact was on her. Merely because defendant Nos.1 and 2 did not contest the suit, her burden was not discharged. She claims that partition took place about 21 years prior to 2008. If such partition is effected and acted upon, then the revenue entries in respect of suit schedule property should have been changed accordingly. But all along, her husband's name was not entered in the record of rights of the said property. 19. It is pertinent to note that plaintiff has admitted in her cross-examination that she resides in the house of the first defendant. Defendant No.2 is an unmarried brother of defendant No.1. The present appellant, who claims to be the legatee under the Ex.P1 Will dated 16.1.1994 allegedly executed by PW-1 is none else but the son of defendant No.1. The said Will has come into existence pending the suit. PW-1 in her evidence denied the execution of any such Will. That goes to show that all is not well with defendant No.1 and there is something fishy in the matter. 20. Learned Counsel for the appellant relying on the recitals in Ex.D1 that defendant No.2 acquired the property under a partition deed submits that, that itself shows that there was a partition between plaintiff's husband and defendant Nos.1 and 2. In fact, Ex.D1 does not state that there was partition between defendant Nos.1 and 2 and husband of the plaintiff. Apart from that, mere non-production of such document by defendant No.3 does not discharge the burden of proof of the plaintiff of the partition set up by her. 21. Exs.D2 to D4 produced by defendant No.3 show that in 1993-94, there was a partition between defendant Nos.1 and 2. In that partition, 24 guntas in Sy.No.17/2AP, 2 acres 14 guntas in Sy.No.11/P and 2 acres 33 guntas in Sy.No.34/1P had fallen to the share of defendant No.1. 21. Exs.D2 to D4 produced by defendant No.3 show that in 1993-94, there was a partition between defendant Nos.1 and 2. In that partition, 24 guntas in Sy.No.17/2AP, 2 acres 14 guntas in Sy.No.11/P and 2 acres 33 guntas in Sy.No.34/1P had fallen to the share of defendant No.1. Those documents further show that 30 guntas of Sy.No.17/2AP i.e., suit property and 2 acres 33 guntas in Sy.No.34/3P had fallen to the share of defendant No.2. Those revenue entries were not challenged by the plaintiff or defendant No.1. 22. The lower appellate court on appreciating all these facts and circumstances of the case and evidence on record dismissed the appeal. This Court does not find any perversity in the impugned judgments or substantial question of law to admit the appeal. Therefore, the appeal is dismissed with costs.