IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.198 OF 2016 (PAR) BETWEEN:
SMT.PUTTALINGAMMA W/O NANJAIAH D/O LATE SIDDARAMAIAH AGED ABOUT 60 YEARS R/AT D.NO.2973/1B, NEW NO.CH-17/B 2ND CROSS, KUKKARAHALLY SARASWATHIPURAM MYSURU DISTRICT – 570 009 ….APPELLANT (BY SRI A.LOURDU MARIYAPPA, ADV.) AND:
1. SRI KALINGAIAH S/O LATE SIDDARAMAIAH AGED ABOUT 79 YEARS R/AT D.NO.49, 4TH MAIN OLD KESARE, MYSURU CITY MYSURU DISTRICT – 570 009 2. SMT.LINGAJAMMA W/O LATE MANTE SIDDAIAH AGED ABOUT 63 YEARS RESPONDENT NO.1 & 2 RESIDING R/AT D.NO.2973/A, NEW NO.CH-17/A II MAIN, KUKKARAHALLI, SARASWATHIPURAM MYSURU DISTRICT – 570 009 3. SMT.UMADEVI W/O SHANKER KALLI GUDDI AGED ABOUT 56 YEARS 4. SMT.MAHADEVAMMA W/O THIMMAIAH D/O LATE MANTE SIDDAIAH AGED ABOUT 52 YEARS 5. ARUNA S/O LATE SOMANNA AGED ABOUT 31 YEARS S/O LATE MANTE SIDDAIAH RESPONDENT NO.3 TO 5 ARE R/AT D.NO.19, I CROSS, N.R.MOHALLA MYSURU – 07 ... RESPONDENTS (BY SRI NAGARAJA S., ADV. FOR R-1;
SRI ESHWARAPPA S.P., ADV. FOR R-3 TO R-5; R-2 SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:31.10.2015 PASSED IN R.A.NO.200/2012 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 06.03.2012 PASSED IN O.S.NO.721/2009 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This plaintiff’s second appeal arises out of the judgment and decree dated 31.10.2015 passed in R.A.No.200/2012 by the II Additional District Judge at Mysuru. Under the said judgment and decree the 1st Appellate Court has confirmed the judgment and decree dated 6.3.2012 in O.S.No.721/2009 passed by the IV Addl.Senior Civil Judge at Mysuru, dismissing the suit of the appellant for partition and separate possession of her share in the house property bearing door No.2973 new No.CH-17 situated at II Cross, Kukkarahalli, Mysuru.
2. Plaintiff and defendant No.2 are the daughters and defendant No.1 was the son of one Siddaramaiah. Defendants-3 to 5 are the children of defendant No.2. Siddaramaiah died in the year 1980. Plaintiff and defendant No.2 filed O.S.No.1027/1988 against defendant No.1 claiming that the suit schedule property i.e., door No.2973 new No.CH-17 was the self-acquired property of said Siddaramaiah and he has bequeathed the said property in their favour under the Will dated 19.1.1974 and thereby they have become the absolute owners of the said property. The said suit came to be dismissed on adjudication. Plaintiff and defendant No.2 challenged the said judgment in R.A.No.365/2004 which also came to be dismissed in 2009.
3. While disposing of R.A.No.365/2004, it was observed that, if the plaintiff claims any right in the property through her father by succession, it is open to her to file suit claiming share in the suit property. Thereafter, plaintiff filed O.S.No.721/2009 claiming that on the death of her father, herself, defendant Nos.1 and 2 are entitled to equal 1/3rd share each in the suit property.
4. Only the first defendant contested the suit and other defendants did not contest the suit. First defendant contended that after death of their father Siddaramaiah, his properties were partitioned amongst plaintiff, himself and defendant No.2 orally and accordingly, their names were mutated in the revenue records. He further contended that the properties fallen to the share of plaintiff and defendant No.2, were acquired for the purpose of forming layout for the State Bank of Mysore Employees’ House Building Co-operative Society and plaintiff and defendant No.1 received the compensation awarded for such acquisition. He further contended that the plaintiff has not included the property fallen to the share of herself and defendant No.1, which they enjoyed and therefore, suit is bad for non-inclusion of the properties.
5. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that the suit schedule property is the self acquired property of the late. Siddamaraiah the father of the plaintiff and defendants?
2. Whether the plaintiff proves that herself and defendants are in joint possession of the suit schedule property?
3. Whether the defendant No.1 proves that this suit is barred by Section 11 of CPC?
4. Whether the first defendant proves that there was already partition in the joint family properties between the parties?
5. Whether the plaintiff is entitled for 1/3rd share in the suit schedule property?
6. What Order or Decree?
6. Plaintiff got herself examined as PW-1 and got marked Exs.P1 to P6. Defendant No.1 got himself examined as DW-1 and got marked Exs.D1 to D9. The Trial court after hearing the parties dismissed the suit holding that the admissions of PW-1 and the documents produced by the defendant coupled with his oral evidence show that there was an oral partition between plaintiff, defendant Nos.1 and 2 and Sy.No.313/1 measuring 2 acres 3 guntas was allotted to the share of plaintiff and defendant No.2. It was further held that in the acquisition proceedings, plaintiff and defendant No.2 have received the compensation amount and though the plaintiff contended that first appellant has also shared the compensation amount with them, she failed to prove the same and ultimately the suit was dismissed.
7. Aggrieved by the said judgment, plaintiff preferred R.A.No.200/2012. In the said appeal, she filed I.A.No.2 under Order XLI Rule 27 CPC to produce the documents by way of additional evidence; I.A.No.3 under Order I Rule 10(2) CPC to implead the purchasers of property bearing Sy.No.313, as defendant Nos.6 and 7 and I.A.No.4 under Order VI Rule 17 CPC to include two other properties, which were not initially included in the case.
8. The first appellate court on hearing the parties, concurred with the reasonings and findings of the trial court with regard to the prior partition. So far as I.A.Nos.2 to 4, the appellant had contended that she is an ignorant woman, therefore, she could not produce the documents, implead the parties and include the properties, etc. But the first appellate court said that having regard to the fact that the plaintiff was litigating since 1988, i.e., from the time of filing O.S.No.1027/1988, the ground alleged is unacceptable. The first appellate court further held that the material, which was on record, was sufficient to adjudicate the matter and the applications lack bonafide, thus, dismissed the appeal and the applications.
9. Sri.A.Lourdu Mariyappa, learned Counsel for the appellant submits that the I.A.Nos.2 to 4 should have been separately considered by the first appellate court and considering all those applications along with the main appeal is illegal and that is the substantial question of law involved in the case. He further submits that defendant No.1 did not adduce any evidence to prove the oral partition and therefore, the judgment and decree passed by the courts below are perverse.
In support of his contentions, he seeks to rely upon the following judgments:
1. Smt.Subadhramma –vs- Mullangi Narayanamma and Others 2016(3) KCCR 2445;
2. Shri Dyneshwar Khiru Ghadi –vs- Smt.Ramakka 2018(3) KCCR 2169;
3. Shri Narayan –vs- Shri Firdos and Others 2017(3) KCCR 2190;
4. Uma Pandey and Another –vs- Munna Pandey and others AIR 2018 SC 1930.
10. What is the substantial question of law is explained by the Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs AIR 2001 SC 965 as follows:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list.”
(Emphasis supplied) 11. Thus, it is clear that on the question of fact, the first appellate court is the last court. Only if there is perversity in appreciating the evidence, that can be considered as substantial question of law. As far as question of law, all questions of law will not become substantial question of law. Only such questions of law, which are not settled or debatable, are the questions of law.
12. The material on record shows that initially the plaintiff and defendant No.2 filed suit in respect of present suit property seeking declaration that they have become the owners of the property by virtue of Will of their father. It is thus clear that admittedly the suit property was the self-acquired property of the father of plaintiff and defendant Nos.1 and 2. They fought that litigation up to 2009 and failed. Only thereafter they brought this suit for partition.
13. There is no dispute that plaintiff’s father owned another property bearing Sy.No.313/1. The parties are governed by Hindu Law which permits oral partition. Only if the partition is effected under a document, then that requires registration.
14. The material on record shows that PW-1 herself admitted that after the death of her father, names of herself and defendant No.2 were entered to 1 acre each in Sy.No.313/1. It is further admitted that said land was acquired by the Deputy Commissioner, Mysore, as per LAQ:PR:12/90-91 for the purpose of forming layout for State Bank of Mysore Employees’ House Building Co-operative Society. She has further admitted that herself and second defendant have received compensation of `1,00,000/- each. Though she contended that defendant No.1 also received the compensation, she failed to establish that plea. Though the suit was filed for partition and separate possession of the share in her father’s property, she did not include his other properties in the suit.
15. Having regard to such admissions of PW-1 and other materials placed on record, the Trial Court accepted the contention of oral partition and that was concurred by the first appellate court. After fighting the litigation since 1988, for the first time in the appeal, she sought to adduce additional evidence, implead the parties, include the properties and to amend the plaint which apparently was for a denovo trial of the case. The only reason assigned for her omission was that she was ignorant. The first appellate court while considering the application held that she was fighting the litigation since 1988, therefore, cannot be called as ignorant woman.
16. There is no perversity in the observation and finding of the first appellate court and the trial court on merits.
17. In the judgments relied upon by the learned Counsel for the appellant in Subadhramma, Dyneshwar Khiru Ghadi and Narayan’s cases referred to supra, it was held that the applications for adducing additional evidence shall be considered along with the appeal. Perusal of those judgments shows that the first appellate court had not considered the applications at all. In this case, the first appellate court has considered the applications along with the main matter and has given findings on that. Therefore, the said judgments are not applicable to the facts of the case.
18. Since there is no perversity in the findings of the courts below, the judgment in Uma Pandey’s case relied upon by the learned counsel for the appellant does not advance the case of the appellant any more. This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed.
Sd/- JUDGE KNM/-