IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2165/2017 (PAR) BETWEEN:
KONGALAPPA S/O LATE BASAPPA AGED ABOUT 45 YEARS R/AT HONGAHALLI VILLAGE KASABA HOBLI GUNDULPET TALUK – 571 111 …APPELLANT (BY SRI UMASHANKAR M.N., ADV.) AND:
1. BASAPPA @ HANGALADA BASAPPA S/O LATE KONGALAPPA AGED ABOUT 77 YEARS 2. MADAPPA S/O BASAPPA AGED ABOUT 58 YEARS 3. RAJAMMA D/O BASAPPA AGED ABOUT 48 YEARS 4. MAYAMMA D/O BASAPPA AGED ABOUT 40 YEARS 5. SUNITHA D/O BASAPPA AGED ABOUT 43 YEARS RESPONDENTS 1 TO 5 ARE R/AT HONGAHALLI VILLAGE KASABA HOBLI GUNDLUPET TALUK – 571 111. …RESPONDENTS (BY SRI.P.MAHESHA, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:22.06.2017 PASSED IN R.A.NO.53/2017 (35/2015) ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 4.4.2015 PASSED IN O.S.NO.123/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC, GUNDLUPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T There is delay of 13 days in filing the appeal. Learned Counsel for the respondents concedes for condonation of delay. Accepting the reasons assigned to explain the delay, delay of 13 days in filing the appeal is condoned. I.A.No.1/2017 is disposed of accordingly.
2. This plaintiff’s appeal arises out of the judgment and decree dated 22.6.2017 in Regular Appeal No.53/2017 (35/2015) passed by the Senior Civil Judge & J.M.F.C., Gundlupet.
3. By the impugned judgment, the First Appellate Court dismissed the appeal of the appellant and confirmed the judgment and decree dated 4.4.2015 in O.S.No.123/2010 passed by the Civil Judge & J.M.F.C., Gundlupet and also dismissed I.A.No.4 filed by the appellant under Order XLI Rule 27 CPC.
4. The Trial Court by the judgment and decree impugned before the first appellate court had dismissed the plaintiff’s suit for partition.
5. Appellant filed O.S.No.123/2010 before the trial court against the respondents for partition and separate possession of his 1/5th share in the suit schedule properties. Respondent No.1 is the father and respondent Nos.2 to 5 are the brother and sisters of the appellant. Subject matter of the suit were two lands shown as suit schedule item Nos.1 and 2 property measuring 4 acres each situated at Hongahalli village, Gundlupet taluk.
6. Appellant contended that himself and respondents constituted Hindu joint family and first defendant purchased the suit schedule property out of joint family income. He further contended that despite his demand, first defendant is not ready to give his share and is trying to alienate the suit schedule properties.
7. Defendants contested the suit denying that plaintiff is the member of joint family. They further contended that defendant No.1 migrated to his father-in-law’s house long back and during his stay there, he acquired the suit schedule properties out of his own income.
8. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that the suit schedule properties are ancestral properties of the plaintiff and defendants?
2. Whether the plaintiff further proves that he and defendants are in joint and constructive possession of the suit schedule properties?
3. Whether the plaintiff further proves that he is entitled for share as prayed for?
4. Whether the defendants prove that the suit is bad for non joiner of other ancestral properties?
5. Whether the plaintiff proves the cause of action to file the suit against the defendants?
6. For what decree or order?
9. The parties adduced evidence. In support of the case of the plaintiff, PWs-1 to 3 were examined and Exs.P1 to P6 were marked. First defendant was examined as DW-1 and Exs.D1 was marked.
10. The trial court relying on the evidence of plaintiff himself held that defendant No.1 had migrated to the house of his father-in-law and he acquired the suit schedule properties out of his own income, therefore, they are his self-acquired properties.
11. The trial court further held that as per Ex.P1, the properties were purchased by the first defendant on 13.4.1973 that was even before the birth of the plaintiff, therefore, the question of acquiring the properties from the joint family income or the contribution of the other members of the joint family is unacceptable.
12. The trial court further held that PW-1 has admitted that he has not included some other properties in the suit, therefore, the suit is bad for non-inclusion of all joint family properties.
13. Plaintiff challenged the said judgment and decree before the first appellate court in R.A.No.53/2017. The first appellate court on hearing the parties dismissed the appeal concurring with the reasonings and findings of the trial court. Before the first appellate court, appellant filed I.A.No.4 for adducing additional evidence. The first appellate court dismissed the said application holding that the document sought to be produced under the said application was irrelevant for decision of the case.
14. Sri.Umashankar M.N., learned Counsel for the appellant referring to para-15 of the judgment of the trial court submits that as per the observation of the trial court, DW-1 himself admitted that if plaintiff is ready to share the liability/loan, defendant No.1 is ready to give a share in the property. He submits that the courts below were in error in ignoring such admission of DW-1 and that is the substantial question of law.
He further submits that the first appellate court instead of giving definite finding regarding the nature of properties, only swayed away by the fact that defendant No.1 was residing with his father-in-law and states that the properties might have been acquired by his own earning.
He further submits that without raising an issue regarding the plea of first defendant regarding self-acquisition, the finding of the courts below that the suit properties are his self-acquired properties is unsustainable.
15. Per contra, Sri.P.Mahesha, learned Counsel for the respondents submits that admittedly first defendant was residing in his father-in-law’s house and when he was staying there, he acquired the suit schedule properties.
He further submits that when the plaintiff claims that the suit schedule properties were the ancestral joint family property, burden was on him to prove that they were the joint family properties. He submits that the courts below on proper appreciation of the evidence have held that the plaintiff has failed to prove his claim. He submits that there are consistent concurrent findings of fact, this second appeal does not involve any substantial question of law.
So far as the contention of not framing issue on the plea of self-acquisition, he submits that the said aspect is covered under issue No.1. He further submits that parties understood the case of each other and went for trial and therefore, non-framing of very specific issue on that is not a ground to interfere in the second appeal.
16. This being a Regular Second Appeal under Section 100 CPC, it can be admitted only if the appellant makes out a substantial question of law in the matter for hearing.
17. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 held that on the questions of facts, the first appellate court is the last court unless some perversity is shown in the judgments of the courts below. It was further held all questions of law are not the substantial questions of law.
18. There was no dispute between the parties regarding relationship. There was also no dispute that the first defendant migrated to his father-in- law’s house long back. Ex.D1 showed that the properties were acquired by the first defendant by way of sale on 13.4.1973. The plaintiff’s age as shown in the plaint is 38 years. Therefore, probably plaintiff was born in 1972. It is material to note that the other defendants and sisters of the plaintiff do not support his claim of properties being the ancestral properties though they were getting some benefit, if they supported the plaintiff.
19. The initial burden of proving the fact that the suit schedule properties were the joint family properties was on the plaintiff. Therefore, he was expected to prove that the first defendant had inherited some properties and those properties were generating nucleus to acquire suit schedule properties under Ex.P1. In that regard, absolutely no evidence was adduced.
20. Regarding the alleged admission of DW-1, he does not unequivocally state that the properties are the joint family properties. He contended that plaintiff was living separately and even if he wants any share in the properties, he has to share the liability also and in that event he was ready for partition. That does not amount to unequivocal or unambiguous admission in terms of Section 17 of the Indian Evidence Act. Therefore, the courts below have not accepted that.
21. Regarding non-framing of issue on the plea of properties being the self-acquired property of defendant No.1, the records show that issue No.1 was whether the plaintiff proves that suit schedule properties are the ancestral properties of plaintiff and the defendants. That issue covered the contention of the first defendant also. Apart from that, the records show that parties understood the case of each other and went for trial and they adduced evidence on their respective contentions. Therefore, non-framing of a specific issue on the plea of the first defendant in that regard does not vitiate the judgment or constitute a substantial question of law.
22. This Court in Vishwaraj –vs- B.M.Byrappa ILR 2013(2) Kar 1711 held that, if the parties understood the case of each other and went for trial, non-framing of specific issue on such plea does not vitiate the judgment and that does not become a substantial question of law.
In the light of the discussion made above, this Court does not find any substantial question of law to admit the appeal. Therefore, the appeal is dismissed with costs.
Sd/- JUDGE KNM/-