IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.2361 OF 2010 (Dec/Inj) BETWEEN:
SRI APPE GOWDA SINCE DEAD BY HIS LRs:
1. SMT. PUTTASIDDAMMA W/O LATE SRI APPE GOWDA MAJOR, R/AT MARBALLIHUNDI JAYAPURA HOBLI MYSURU TALUK – 570 008.
2. SMT.PUTTAMMA W/O SRI SHIVANNE GOWDA AGED ABOUT 58 YEARS.
3. SMT.PADMA W/O SRI SHIVANNE GOWDA AGED ABOUT 53 YEARS APPELLANTS NO.2 AND 3 R/AT GOPALAPURA VILLAGE JAYAPURA HOBLI MYSURU TALUK – 570 008.
4. SRI BORE GOWDA S/O LATE SRI APPE GOWDA AGED ABOUT 48 YEARS R/AT HEREGALLI VILLAGE HAMPAPURA HOBLI H.D.KOTE TALUK – 571 125.
5. SRI JAVARE GOWDA S/O LATE SRI APPE GOWDA AGED ABOUT 46 YEARS.
6. SMT.BHAGYAMMA D/O LATE SRI APPE GOWDA W/O SRI CHANDRE GOWDA AGED ABOUT 45 YEARS.
7. SMT.SHANTHAMA D/O LATE SRI APPE GOWDA W/O SRI MAHADEVU AGED ABOUT 40 YEARS.
8. SMT.JAYALAKSHMI D/O LATE SRI APPE GOWDA W/O SRI SHIVANNE GOWDA AGED ABOUT 44 YEARS.
APPELLANTS NO.5 TO 8 ARE RESIDING AT MARBALI HUNDI JAYAPURA HOBLI MYSURU TALUK – 570 008. ...APPELLANTS (BY SRI B.C.RAJEEVA, ADVOCATE) AND:
SRI SIDDARAME GOWDA S/O LATE SRI NANJE GOWDA AGED ABOUT 50 YEARS R/AT MARBALLI HUNDI JAYAPURA HOBLI MYSURU TALUK – 570 008. ...RESPONDENT (Respondent served but remained unrepresented) THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 05.06.2010 PASSED IN R.A.NO.103/2002 ON THE FILE OF THE SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.03.2002 PASSED IN O.S.NO.30/96 ON THE FILE OF THE II CIVIL JUDGE (JR.DN) AND JMFC, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The legal representatives of plaintiff in O.S.No.30 of 1996 on the file of Civil Judge (Jr.Dn.,) and JMFC., Mysuru have come up in this second appeal impugning the divergent finding rendered by the lower court in R.A.No.103 of 2002 on the file Senior Civil Judge, Mysuru.
2. Brief facts leading to the second appeal are as under:
The suit in O.S.No.30 of 1996 is for the relief of declaration and possession in respect of land bearing Sy.No. 207/2 of Marbally Village, Jayapura Hobli, Mysuru Taluk measuring to an extent of 0-07 guntas out of 0-38 guntas of land said to be belonging to the father of the original plaintiff, Hombegowda in total extent of 2 acres 34 guntas in the said survey number. The suit of the plaintiff in the court below was that, in the large extent of Sy.No.207/2 measuring 2 acres 34 guntas, plaintiff’s father Hombegowda owned about 38 guntas, in which, 10 guntas was given to his share in a partition that took place in the family of plaintiff’s father Hombegowda. The date of partition is not referred to in the plaint. The date when the plaintiff was put in possession of the suit property is also not referred to in the plaint. However, it was stated that the plaintiff Appe Gowda is said to have given 07 guntas of land to his brother Ningegowda who is admittedly the father of the sole defendant in the court below. It is stated that the said land was given to him as security to loan of Rs.800/-. Though such an averment is there in the plaint, there is no supportive document.
3. In the court below, the plaintiff tried to draw support from Ex.P3, which is a statement recorded by the villagers of Marballihundi from the revenue authorities in effecting mutation entries to the family of the children of Hombegowda with reference to various properties said to be belonging to him in the joint family properties. In the said Ex.P3, there is a recital in the second page, which deals with Sy.No.207/2 wherein there is a reference to defendant’s father Ningegowda being put in possession of 7 guntas by plaintiff in land bearing Sy.No.207/2 in which he has possession of defendant Siddarame Gowda’s land for 16 years prior to the date when the said document was recorded and he having planted 11 coconut trees in the said land 10 years prior to the said statement was recorded. Though there is no date mentioned, from the contents therein, it is gathered that the said document is of the year 1982. If that is accepted, defendant Siddarame Gowda is said to be in possession of the suit property from the year 1966.
4. Admittedly, the said land was given to Ningegowda by Appegowda which was subsequently given to Siddaramegowda. If that is so, prior to the year 1966 itself there was a partition in the family of Hombegowda. All these transactions have taken place prior to the year 1966 and even assuming that the land was given by plaintiff Appegowda to defendant’s father Ningegowda in a loan transaction, there is no document to substantiate the same. The document, which is at Ex.P3 would not indicate whether he is giving up his right in respect of the said land or taking some other land to him in exchange is also not seen. However, the court below accepted the oral evidence of plaintiff with reference to loan transaction between the plaintiff Appegowda and defendant’s father Ningegowda and decreed the suit of the plaintiff for declaration and possession with certain directions.
5. The judgment and decree dated 30.03.2002 passed in O.S.No.30/1996 was subject matter of appeal before the lower appellate court in R.A.No.103/2002. The Court of Senior Civil Judge of Small Causes, Mysuru on re- appreciation of the oral and documentary evidence available on record did not believe the oral evidence of the plaintiff as against the documentary evidence, which does not tally with the assertion of the plaintiff that the suit schedule land was given to defendant’s father as security for the loan of Rs.800/-
. In as much as the lower appellate court on re-appreciation of the entire material available on record did not find any piece of document or evidence to substantiate the same as against the finding of the trial court in accepting the oral evidence of the plaintiff in the court below. Therefore, while re-considering the pleadings, oral and documentary evidence available on record, the lower appellate court by answering the points for consideration against the plaintiff in the original suit in favour of the appellant in the lower appellate court allowed the appeal and set aside the judgment and decree passed by the trial court and consequently dismissed the suit of the plaintiff. It is necessary to mention at this juncture that the plaintiff in the original suit had died during the pendency of the appeal in R.A.No.103/2002 and his legal representatives had come on record as respondents in the said proceedings. It is the legal representatives of the original plaintiff, Appegowda who have come up in this appeal.
6. After hearing the learned counsel for the appellants for admission and on going through the material available on record, this Court find that as against the divergent findings rendered by the lower appellate court in R.A.No.103/2002, no grounds are made out to admit this second appeal for consideration. In as much as no substantial question of law is made out for consideration by this Court in the second appeal. Accordingly, the appeal is dismissed.
Sd/- JUDGE dh