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2019 DIGILAW 1435 (KAR)

Chikkanna v. Kempamma

2019-06-26

K.S.MUDAGAL

body2019
JUDGMENT : K.S. Mudagal, J. This second appeal of the defendants arises out of the judgment and decree dated 01.02.2016 in Regular Appeal No.62/2014 passed by the Principal District & Sessions Judge, Ramanagara. 2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the defendants and confirmed the judgment and decree dated 06.09.2014 in O.S.No.113/2009 passed by the Principal Senior Civil Jude and CJM., Ramanagara. 3. By the said judgment and decree, the Trial Court had decreed the suit of the plaintiff for declaration of her title to the suit schedule property and for permanent injunction. 4. Respondent was the plaintiff and appellants were the defendants in the said suit. For the purpose of convenience, parties will be referred to henceforth with their ranks before the Trial Court. 5. Subject matter of the suit were the lands bearing Sy.No.490 measuring 2 acres and Sy.No.491 measuring 1 acre 31 guntas of Vibhuthikere Village of Ramanagara taluk. 6. Plaintiff's case in brief was as follows: That her husband Honnaiah died in the year 2004. He had purchased the suit schedule properties and thus on the death of her husband, she has become the absolute owner of the properties. Defendant Nos.1 and 2 were the brothers of Honnaiah. After the death of Honnaiah, they have clandestinely got entered their names in the revenue records of the suit schedule properties and denying her title. Therefore, she sought the declaration and injunction. 7. Defendants denied that plaintiff was the wife of Honnaiah and that suit schedule property were purchased by Honnaiah. They contended that the suit schedule properties were the joint family properties. In a partition effected in the year 1994 between plaintiff's husband Honnaiah and defendant Nos.1 and 2, the suit schedule properties were allotted to their share and thereby they have become the absolute owners of the said properties. 8. On the basis of such pleadings, the trial court framed the following issues: 1. Whether the plaintiff proves that both suit schedule properties are self-acquired properties of plaintiff's husband? 2. Whether the plaintiff proves that plaintiff is legally wedded wife of late Sri Honnaiah? 3. Whether the plaintiff proves that the Panchayath Parikath dated 12.08.1994 is mash and evade? 4. Whether the plaintiff proves that the defendants are interfering with peaceful possession and enjoyment of suit schedule properties? 5. 2. Whether the plaintiff proves that plaintiff is legally wedded wife of late Sri Honnaiah? 3. Whether the plaintiff proves that the Panchayath Parikath dated 12.08.1994 is mash and evade? 4. Whether the plaintiff proves that the defendants are interfering with peaceful possession and enjoyment of suit schedule properties? 5. Whether the defendants prove that they are in peaceful possession and enjoyment of suit schedule properties? 6. What order or decree? 9. The trial court after hearing the parties decreed the suit on the following grounds: (i) The relationship of plaintiff with Honnaiah is proved by Ex.P4 Pension Settlement Record and Ex.P12 the written statement filed by the sister of the defendants in O.S.NO.36/2005. (ii) DW-1 admits that, in Ex.P16 photograph, plaintiff is depicted with Honnaiah in his customary last rituals as his wife; (iii) The fact of purchase of property by Honnaiah is proved by Exs.P6, 7 and 13 by oral and documentary evidence adduced before the court. The partition set up by the defendants is not proved. 10. The first appellate court by the impugned judgment and decree confirmed the judgment and decree of the trial court holding that the serious dispute was only with regard to the relationship of plaintiff with Honnaiah and the said relationship was proved by Exs.P4, P12 and P16 and the admission of DW-1. The first appellate court further held that the trial court has decreed the suit on proper appreciation of the evidence and there were no grounds to interfere with the matter. 11. Sri.Raghu Prakash Babu D., learned Counsel for the appellants seeks to assail the impugned judgment and decree on the following grounds: (i) The first appellate court has not dealt with the matter as per Order XLI Rule 31 CPC and has not re-appreciated the evidence with regard to the title of the husband of the plaintiff; (ii) Plaintiff had not produced any records in proof of title of her husband Honnaiah; (iii) The above said questions constitute the substantial question of law. In support of his contentions, he relies upon the following judgment: (1) Subraya M.N. -vs- Vittala M.N. & Others, (2016) 8 SCC 705 . 12. In support of his contentions, he relies upon the following judgment: (1) Subraya M.N. -vs- Vittala M.N. & Others, (2016) 8 SCC 705 . 12. Per contra, Sri.M.G.Raveesha, learned Counsel for the respondent seeks to support the judgments and decrees of the courts below on the following grounds: (i) The defendants disputed only the relationship of plaintiff with Honnaiah and they did not challenge the purchase of properties by Honnaiah; (ii) In the cross-examination, DW-1 admitted that the properties were purchased in the name of Honnaiah and they did not adduce any evidence to show that such purchase was out of any joint family nucleus; (iii) The partition deed set up by the defendants was not proved; (iv) Said document was not admitted in evidence for want of registration and that was not questioned; (v) The alleged partition deed was suspicious and therefore, not accepted by the courts below. In support of his contentions, he relies upon the following judgment: (i) Sri Bhimeshwara Swami Varu Temple -vs- Pedapudi Krishna Murthi and others, (1973) AIR SC 1299. 13. This being a second appeal under Section 100 CPC can be admitted for hearing, only if it involves substantial question of law in the case. 14. What is 'substantial question of law' is sufficiently expounded by the Hon'ble Supreme court in the following judgments: 1. Santosh Hazari -vs- Purushottam Tiwari (Dead) by LRs., (2001) AIR SC 965 2. Gurnam Singh (Dead) by LRs & Others -vs- Lehna Singh (Dead) by LRs., 2019 AIR SC 1441. 15. In the aforesaid two judgments, it was held that on the question of facts, the first appellate court is the last court. It was further held that all the questions are not substantial question of law. It was further held that the High Court under Section 100 CPC cannot substitute its opinion with that of the first appellate court unless it finds that the 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 (iii) based on an inadmissible evidence or no evidence. 16. In the light of the above judgments, this Court has to see whether the judgments of the courts below are contrary to mandatory provisions of law, any precedents rendered by the Hon'ble Supreme Court or based on inadmissible evidence or no evidence. 16. In the light of the above judgments, this Court has to see whether the judgments of the courts below are contrary to mandatory provisions of law, any precedents rendered by the Hon'ble Supreme Court or based on inadmissible evidence or no evidence. 17. So far as the relationship of the plaintiff with Honnaiah, the plaintiff relied on Ex.P4, the Pension Settlement Record, Ex.P12 written statement filed by the sister of the defendants in O.S.No.36/2005 and admission of DW-1 in his cross-examination. The defendants did not dispute that Honnaiah was employed in K.E.B. Ex.P4 the Pension Settlement Record shows that the pension of Honnaiah on his death was settled in favour of the plaintiff on 18.4.2005. 18. Further, defendants' sister herself in Ex.P12 the written statement filed by her in O.S.No.36/2005 admitted that plaintiff was the wife of Honnaiah. Ex.P16 photograph was marked in evidence by way of confrontation of DW-1. DW-1 admitted that the said photograph is taken while performing the customary last rituals of Honnaiah and there the plaintiff is depicted as the wife of Honnaiah. 19. Though defendants produced Ex.D5 - Old Age Pension Certificate contending that in the said record, plaintiff is shown as wife of one Thammaiah, she disputed the said document. However, the defendants did not examine the concerned authorities to prove that Ex.D5 relates to the plaintiff. Considering all these aspects, the trial court held that the plaintiff has proved that she is the wife of Honnaiah, the brother of defendant Nos.1 and 2. The first appellate court while re-appreciating the evidence concurred with the finding of the trial court. This Court does not find any perversity in the said finding. 20. So far as the title of plaintiff to the suit properties, the defendants in the written statement contended that suit properties were joint family properties and they denied the absolute ownership of Honnaiah. But they did not produce any document to show that the properties were acquired by their father and they got them by inheritance. 21. Further, DW-1 in his cross-examination unequivocally admitted that Honnaiah acquired the properties by way of sale and he was serving in K.E.B. Only the facts disputed need to be proved and the admitted facts need not be proved. 21. Further, DW-1 in his cross-examination unequivocally admitted that Honnaiah acquired the properties by way of sale and he was serving in K.E.B. Only the facts disputed need to be proved and the admitted facts need not be proved. Exs.P6, 7 and 13 - the RTC and mutation register extract showed the name of Honnaiah to the suit properties by virtue of sale and those entries were not challenged by defendants. 22. Though defendants claim that those properties were joint family properties, they did not adduce any evidence to show that the alleged joint family had properties and funds and the properties were purchased by Honnaiah out of the said joint family nucleus. 23. The partition of the year 1994 set up by the defendants was not proved. The only document relied upon to prove that partition was the mutation entries of the year 2005. The alleged entries are of the year 2004-05 i.e., after the death of Honnaiah, though the partition allegedly took place during his life time in 1994. Considering all these aspects, the trial court rejected the defence of the defendants in that regard. 24. On evaluating the evidence on record, the first appellate court held that serious dispute was only with regard to relationship and upheld the decree of the trial court. 25. The appellants have filed I.A.Nos.1/2017 and 2/2017 to produce the alleged partition deeds and RTC extracts. Absolutely there was no explanation for not producing those documents and getting them marked in the evidence before the trial court and the first appellate court. The applications do not fit into the requirement of Order XLI Rule 27 CPC. This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal and I.A.Nos.1/2017 and 2/2017 are dismissed with costs. In view of disposal of the appeal, I.A.No.1/2016 stands disposed of.