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2019 DIGILAW 1589 (KAR)

Nagappa Shanbhag v. Mookambika

2019-07-05

K.S.MUDAGAL

body2019
JUDGMENT : K.S.Mudagal, J. This regular second appeal of defendant No.1 arises out the judgment and decree dated 05.06.2018 passed by the Principal District Judge, Udupi in R.A.No.20/2017. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the present appellant, confirmed the judgment of the trial Court and modified the decree awarding 1/11th share in plaint schedule 'A' and 'B' properties to plaintiff Nos.1 to 3 together. 2. Respondent Nos.1 to 3 were plaintiffs. Appellant was defendant No.1 and respondent Nos.4 to 20 were defendant Nos.2 to 18 before the trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court. 3. Subject matter of the suit were 20 lands shown in plaint schedule 'A' properties and two sites shown in plaint schedule 'B' properties. Plaintiff No.1 is the wife, plaintiff Nos.2 and 3 are the children of deceased Ramachandra Shanbhag. Ramachandra Shanbhag and defendant No.1 were children of one Paniyappa Shanbhag. 4. Plaintiffs contended that suit schedule properties were ancestral joint family properties of Sri Ramachandra Shanbhag and defendant No.1. They further contended that they have share in the suit properties and defendants have denied the same. Therefore, they sought partition and separate possession of their share on the properties. 5. Defendant No.1 contested the suit claiming that under compromise decree in RIA.No.2250/1951, he acquired the suit schedule properties and therefore, they were his absolute properties. He did not dispute the relationship. He contended that other heirs of Paniyappa Shanbhag were not arrayed as parties to the suit, therefore the suit is bad for non-joinder of necessary parties. 6. Having regard to defence of defendant No.1 regarding non-joinder of necessary parties, plaintiffs impleaded other defendants. However, other defendants did not choose to file written statement and contest the suit. 7. On the basis of such pleadings, the trial Court framed the following issues: 1. Whether plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of their and defendants? 2. Whether defendant No.1 proves that he got the suit A schedule properties through compromise in a case No.RIA No.2250/1951 on the file of District Munsiff Kundapura, as such they are the absolute properties of him? 3. Whether defendant No.1 proves that he has effected vast and valuable improvements in the suit schedule properties? 4. 2. Whether defendant No.1 proves that he got the suit A schedule properties through compromise in a case No.RIA No.2250/1951 on the file of District Munsiff Kundapura, as such they are the absolute properties of him? 3. Whether defendant No.1 proves that he has effected vast and valuable improvements in the suit schedule properties? 4. Whether defendant No.1 proves that suit is bad for non joinder of necessary parties? 5. Whether plaintiffs are entitled for partition and separate possession of 1/11th share together in the suit schedule properties by metes and bounds? 6. What order or decree? 8. On behalf of plaintiffs, plaintiff Nos.1 and 2 were examined as PW.1 and PW.2 and Ex.P1 to Ex.P23 were marked. On behalf of defendants, defendant No.1 was examined as DW.1 and Ex.D1 to Ex.D3 were marked. 9. The trial Court after hearing the parties held that Ex.D2 and Ex.D3 the certified copies of the decree and compromise petition in O.S.No.357/1951 produced by defendant No.1 himself prove that properties were ancestral joint family properties. The trial Court further held that in view of impleading of defendant Nos.2 to 18, defence of non-joinder of necessary parties do not survive for consideration and plaintiffs are entitled to share in the properties. The trial Court further held that Paniyappa Shanbhag had 11 issues. Therefore, plaintiffs are entitled to 1/11th share. The order portion of the judgment do not specify the share. However, the trial Court, while drawing decree allotted 1/11th share to the plaintiffs together. 10. Defendant No.1 challenged the said judgment and decree before the First Appellate Court in R.A.No.20/2017. The First Appellate Court concurred with the reasoning and findings of the trial Court, but granted 1/11th share in the plaint schedule 'A' and 'B' properties. 11. Sri Sampat Anand Shetty, learned Counsel for appellant seeks to assail the impugned judgments and decrees of the Courts below on the following grounds: (i) As per plaint itself, plaintiff No.1's husband left ancestral house about 40 years back, there was ouster of plaintiffs. 11. Sri Sampat Anand Shetty, learned Counsel for appellant seeks to assail the impugned judgments and decrees of the Courts below on the following grounds: (i) As per plaint itself, plaintiff No.1's husband left ancestral house about 40 years back, there was ouster of plaintiffs. Therefore, suit was barred by time; (ii) Courts below overlooked the fact that Ramachandra Shanbhag was not party to proceedings under Ex.D2 and Ex.D3 certified copies of the compromise decree and compromise petition therefore, that decree would not enure to the benefit of Ramachandra Shanbhag or plaintiffs; & (iii) In the plaint, plaintiffs have not demonstrated how do they get partible interest in the properties. 12. This being second appeal under Section 100 of CPC, scope for this Court to substituting its opinion with the concurrent findings of the Courts below is very limited. 13. The Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh,2019 SCCOnlineSC 374 [Civil Appeal No.6567/2014 DD 13.03.2019] relying upon the earlier judgment of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 in para 26 of the judgment held as follows: "26. .......As per law laid down by this Court in a catena of decisions, the jurisdiction of 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. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for 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 the law as pronounced by the Apex Court; or (iii) Based on inadmissible evidence or no evidence." (emphasis supplied) 14. In the light of the ratio laid down in Gurnam Singh's case, this Court has to see whether the findings of the Courts below are contrary to the applicable law, judicial precedents of the Apex Court or based on inadmissible evidence or no evidence. 15. In the light of the ratio laid down in Gurnam Singh's case, this Court has to see whether the findings of the Courts below are contrary to the applicable law, judicial precedents of the Apex Court or based on inadmissible evidence or no evidence. 15. Defendant No.1 did not dispute the relationship of himself and Ramachandra Shanbagh or that of the plaintiffs. He himself contended that he acquired the properties under Ex.D2 and Ex.D3. Those documents show that father of defendant No.1 Paniyappa Shanbhag had alienated the suit schedule properties to one Srinivas Shanbagh. 16. They further show that on behalf of defendant No.1 and his three brothers Subramanya, Narasimha and Puttappa their maternal uncle filed O.S.No.357/1951 as their minor guardian challenging said alienations and for possession and suit ended in compromise. Purchaser returned the properties on receiving Rs.3,000/-. 17. Recital in Ex.D3 compromise petition shows that the subject matter of the said suit were family properties of plaintiffs and after compromise they were enjoying properties as properties of plaintiffs' family. Such recitals show that plaintiffs in that suit contended that the suit schedule properties were joint family properties and alienation made was not for the benefit of joint family etc. 18. In Ex.D3 age of present defendant No.1 and his brothers were shown as 11 years, 12 years, 13 years and 6 years respectively. It is not even known whether Ramachandra Shanbagh was born when that suit was filed. Even assuming that Ramachandra Shanbagh was born, he not being party to the said suit itself does not extinguish his rights since it was admitted in those records that suit schedule properties were joint family properties. 19. So far as the contention that Ramachandra Shanbagh left the family long back, mere stay of one of the family member away from home does not amount to ouster nor that takes away his interest in the family properties unless ouster proved. It is the contention of the plaintiffs that since defendant No.1 was senior member, his name was shown in the RTC. Even entries in the records of rights were based on the compromise decree. By appreciating all the facts and circumstances, First Appellate Court decreed the suit granting 1/11th share in the suit schedule properties. 20. The judgments and decrees of the Courts below do not fit into any of the three criteria referred to in Gurnam Singh's case for reversal. Even entries in the records of rights were based on the compromise decree. By appreciating all the facts and circumstances, First Appellate Court decreed the suit granting 1/11th share in the suit schedule properties. 20. The judgments and decrees of the Courts below do not fit into any of the three criteria referred to in Gurnam Singh's case for reversal. No substantial question of law is involved in the case. Therefore, appeal is dismissed. In view of disposal of the appeal, IA No.1/2018 filed for interim stay does not survive for consideration and is disposed of accordingly.