IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.30/2015 (PAR) BETWEEN:
SRI BHOJAPPA GOWDA S/O LATE SRI RAMANNA GOWDA AGED ABOUT 71 YEARS R/AT SAMPYADI POST: RAMA KUNJA – 574 241 PUTTUR TALUK D.K. DISTRICT. …APPELLANT (BY SRI S.K. ACHARYA, ADV.) AND:
1. SRI BALAPPA GOWDA AGED ABOUT 63 YEARS S/O RAMANNA GOWDA R/AT SAMPYADI POST: RAMA KUNJA – 574 241 PUTTUR TALUK D.K.DISTRICT 2. DASAPPA GOWDA AGED ABOUT 74 YEARS R/AT SAMPYADI POST: RAMA KUNJA – 574 241 PUTTUR TALUK D.K. DISTRICT 3. SMT.DUGGAMMA AGED ABOUT 69 YEARS W/O BABU GOWDA R/AT KONEMARU HOUSE HALENERANKY VILLAGE PUTTUR TALUK, D.K. DISTRICT 4. SMT.SEETHAMMA AGED ABOUT 65 YEARS W/O NAGAPPA GOWDA R/O ALEKKI HOUSE GOLITHOTHOTTU VILLAGE PUTTUR TALUK D.K.DISTRICT. …RESPONDENTS (BY SRI G.H.RAVIKUMAR, ADV. FOR SRI SACHIN B.S, ADV. FOR R1 AND R2;
R3 AND R4 SERVED & UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:08.07.2014 PASSED IN R.A.NO.56/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALORE, ALLOWING THE APPEAL AGAINST THE JUDGMENT AND DECREE DATED 11.02.2010 PASSED IN O.S.NO.111/2005 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE JMFC, PUTTUR, D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the second defendant arises out of judgment and decree dated 8.7.2014 passed by the II Additional District and Sessions Judge, D.K., Mangalore, in R.A.No.56/2010. By the said judgment and decree, the first appellate court has allowed the appeal of the plaintiff and reversed the judgment and decree dated 11.2.2010 in O.S.No.111/2005 passed by the Additional Senior Civil Judge and J.M.F.C., Puttur, D.K., 2. By the said judgment and decree, the trial court had dismissed the suit of the plaintiff for partition and separate possession of his 6/20th share in the suit schedule ‘A’ property.
3. First respondent was plaintiff and respondent No.2 was defendant No.1 and appellant was defendant No.2 and respondent Nos.3 and 4 were defendant Nos.3 and 4 before the trial court.
4. ‘A’ schedule immovable properties in the suit were as follows:
5. The plaintiff claimed that the suit schedule properties were the tenancy lands of the joint family of himself, defendants and his father Ramanna Gowda. He further contended that though the occupancy rights were granted in the name of defendant No.2, the grant was for the benefit of the joint family, therefore, he has share in the property.
6. Defendant No.1 filed written statement contending that 25 cents out of the suit schedule properties and a residential house were his self- acquired properties and therefore, plaintiff is not entitled to share in that. The other defendants did not file the written statement.
7. On the basis of the said pleadings, the trial court framed the following issues:
1.Whether the plaintiff proves that suit schedule properties are joint family property of him and defendants?
2.Whether the plaintiff is entitled for 6/20th share in all the suit schedule properties?
3. Whether the defendant No.1 proves that 0.25 cents out of suit schedule properties with residential house are his self-acquired property? (Deleted vide order dated 02.01.2010) 4. To what the relief parties are entitled for?
8. On behalf of the plaintiff, plaintiff was examined as PW-1 and got marked Exs.P1 to P12. No evidence was adduced on behalf of the defendants.
9. The trial court dismissed the suit holding that the grant order Ex.P6 was in favour of the second defendant and the RTCs were standing in his name and therefore, they were not the joint family properties and they were the properties of the second defendant.
10. The plaintiff challenged the said judgment and decree before the II Additional District and Sessions Judge, D.K., Mangalore in R.A.No.56/2010.
11. The first appellate court by the impugned judgment and decree allowed the appeal and decreed the suit granting 6/20th share to the plaintiff, defendant Nos.1 and 2 each and 1/20th share to defendant Nos.3 and 4 on the ground that Exs.P7, P8 and P10, the statements of the parties before the Land Tribunal showed that plaintiff’s father and paternal senior uncle were cultivating the lands and therefore, the cultivation of the land was for and on behalf of the family and plaintiff has a share in that.
12. The first appellate court further held that the second defendant did not file written statement setting up the plea that it was his self-acquired property nor has he chosen to lead evidence.
13. Sri.S.K.Acharya, learned Counsel for the appellant submits that though the second defendant did not file written statement and lead evidence, the proceedings of the Land Tribunal including the statements and the orders show that the land was granted in the name of the second defendant, therefore, the first appellate court committed error in decreeing the suit.
14. Per contra, Sri.G.H.Ravikumar, learned counsel for the respondent/plaintiff contends that Ex.P7, P8 and P10 the statements of Ramanna Gowda the father of the parties, Poovani Gowda the uncle of the parties and landlord Narayana show that plaintiff’s father and uncle were cultivating the properties and therefore, they are the joint family properties.
15. This being the second appeal, it can be admitted only if the appellant succeeds in showing that matter involves substantial question of law.
16. The Hon’ble Supreme Court in para 14 of judgment in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs AIR 2001 SC 965 regarding substantial question of law held 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 lis.”
(Emphasis supplied) 17. Thus, it is clear that on the question of fact, the first appellate court is the last court unless it is shown that the judgment suffers perversity. Further to claim to be a substantial question of law, there must be first a foundation laid to it in the pleadings by the parties and that should emerge from the sustainable findings of fact arrived at by court of facts. An entirely new point raised for the first time before the High Court is not a substantial question of law.
18. Plaintiff contended that the suit schedule properties were the joint family properties, which were being cultivated by the joint family. He further contended that the grant of occupancy rights in the name of second defendant was for the benefit of the joint family.
19. There was no dispute regarding the relationship between the parties. There was also no dispute that suit properties were the tenancy lands and occupancy rights were granted in the name of second defendant.
20. Ex.P6 the order of the Land Tribunal and Exs.P7, 8 and 10 the statements of plaintiff’s father, his paternal senior uncle and the original landlord showed that originally plaintiff’s father and his paternal senior uncle were cultivating the suit lands.
21. The appellant/second defendant did not file written statement denying the case of the plaintiff. Further he did not even choose to lead any evidence. That being the fact, he cannot for the first time contend before this court that those properties were his self-acquired properties and the grant of occupancy rights under Ex.P6, the Land Tribunal order was for his exclusive benefit.
22. Absolutely, there is no substantial question of law to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal, I.A.No.1/2018 does not survive for consideration and disposed of accordingly.
Sd/- JUDGE KNM/-