IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.931/2019 BETWEEN:
SRI ESHWARAPPA S/O LATE CHANNABASAPPA AGED ABOUT 60 YEARS R/O MATHIGHATTA VILLAGE & POST, KASABA HOBLI KADUR TALUK CHIKKAMAGALURU DIST. – 577 548 … APPELLANT (BY SRI RAMESH K.R., ADVOCATE) AND:
1. SRI UMAMAHESHWARAPPA S/O LATE M.T.RUDRAPPA AGED ABOUT 69 YEARS R/O MATHIGHATTA VILLAGE & POST, KASABA HOBLI KADUR TALUK CHIKKAMAGALURU DIST. -577 548 2. SRI CHANDRAPPA S/O LATE CHANNABASAPPA AGED MAJOR R/O MATHIGHATTA VILLAGE & POST, KASABA HOBLI KADUR TALUK CHIKKAMAGALURU DIST. – 577 548 … RESPONDENTS (BY SRI VIGNESHWAR S.SHASTRI, ADV., FOR R-1; R-2 SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.03.2019 PASSED IN R.A.NO.4/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:17.01.2014 PASSED IN O.S.NO.62/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KADUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of defendant No.2 arises out of the judgment and decree dated 02.03.2019 in Regular Appeal No.04/2014 passed by the Senior Civil Judge at Kadur.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the second defendant and confirmed the judgment and decree dated 17.01.2014 in O.S.No.62/2010 passed by the Prl. Civil Judge & J.M.F.C., Kadur.
3. By the said judgment and decree, the Trial Court decreed the suit of the plaintiff/respondent No.1 for declaration of his title to the suit property and for permanent injunction.
4. Respondent No.1 was the plaintiff, respondent No.2 was defendant No.1 and appellant was defendant No.2 before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
5. Subject matter of the suit was land bearing Sy.No.74/1A measuring 1 acre 25 guntas situated at Mathighatta village, Kadur taluk, Chikkamagaluru District.
6. Defendant Nos.1, 2, one Nanjundappa, Kuberappa and Bommanna were the children of one Channabasappa. Defendant No.1 was the eldest amongst those children. Suit property stood in the name of Channabasappa. Admittedly he died prior to 1971. Defendant No.1 allegedly executed the sale deed as per Ex.P20 in favour of the plaintiff on 15.11.1971.
7. Plaintiff filed the suit for declaration and injunction claiming that defendant No.1 sold the property in his favour for family necessity and put him in possession. He further claimed that by virtue of said sale deed, he has become the absolute owner of the property and defendants started to interfere with his possession, therefore, he filed the suit.
8. Defendant No.1 filed his written statement denying the execution of sale deed and possession of the plaintiff. He further claimed that the suit property was ancestral joint family property, therefore, he had no right to sell the property.
9. Defendant No.2 in his written statement contended that defendant No.1 had no right to sell the property as it was an ancestral property and the sale deed dated 15.11.1971 was not acted upon. He denied the possession of the plaintiff or the family necessity to sell the property.
10. On the basis of such pleadings, the trial court framed the following issues:
“1. Whether the plaintiff proves that the schedule property belonged to one Channabasappa S/o Bommegowda?
2. Whether the plaintiff proves that deceased Channabasappa sold the schedule property on 15-11-1971 to the plaintiff to meet the legal necessities of the family?
3. Whether the plaintiff proves that he is in lawful possession of the schedule property?
4. Whether the plaintiff proves that defendants are illegal trying to interfere with the possession of the plaintiff over the schedule property?
5. Whether the defendant No.2 proves that suit is not property valued and court fee paid is insufficient?
6. Whether the defendant No.2 proves that the suit is barred by limitation?
7. Whether the plaintiff is entitled for the reliefs claimed in the suit?
8. What order or decree?”
11. The parties adduced evidence. The trial court decreed the suit on the following grounds:
(i) The execution of sale deed dated 15.11.1971 was proved;
(ii) Exs.P2 to P7 and Ex.P10 the RTCs for the year 1972-73, 1982-83 and 2000 to 2002 showed that plaintiff’s name was mutated in the revenue records;
(iii) Exs.P13 to P15 the notices issued by the Agricultural Co-Operative Society of Mathighatta for repayment of the loan, notice issued by the Senior Assistant Horticulture Director (Zilla Panchayat), Kadur for withdrawal of the subsidy for not maintaining the land properly, the certificate of Village Accountant, Mathighatta regarding growing of Sapota (Chikoo) crop, showed that plaintiff was in possession of the property;
(iv) Defence of the defendants is vexatious;
(v) The admissions of DW-1 go contrary to his defence;
(vi) Family necessity/legal necessity is proved.
12. Defendant No.2 challenged the said judgment and decree before the first appellate court in R.A.No.04/2014. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
13. Sri.Ramesh K.R., learned Counsel for the appellant/defendant No.2 seeks to assail the judgment and decrees of the courts below on the following grounds:
(i) The plaintiff did not produce the original sale deed, but the courts below granted declaration based on the secondary evidence;
(ii) The RTCs stood in the name of Channabasappa all along. Therefore, the plaintiff’s possession was not proved;
(iii) The evidence of attesting witness PW-2 was very shaky but still that was accepted;
(iv) The plaintiff witnesses themselves admitted the possession of the defendants;
(v) The additional documents produced by the appellant before this Court with I.A.No.1/2019 show that plaintiff was not in possession and all such evidence was ignored by the courts below.
14. Per contra, Sri.Vigneshwar S.Shastri, learned Counsel for the plaintiff – first respondent seeks to support the impugned judgment and decree of the courts below on the following grounds:
(i) Though defendant No.1 disputed the execution of the sale deed, he did not challenge the findings of the courts below about execution of the document. Therefore, it is not open to defendant No.2 to challenge those findings;
(ii) Defendant No.1 did not dispute the factum of execution but his contention was that the sale deed is invalid as he was not the absolute owner of the property;
(iii) The revenue records and other records produced by the plaintiff prove the possession of the plaintiff and whatever revenue records the defendants relied were from the period 2005 onwards;
(iv) There are no grounds to admit the documents now sought to be produced by way of additional evidence.
15. Both Counsel have made available the copies of the pleadings, depositions and exhibits in the case for perusal of this Court.
16. This being a second appeal under Section 100 CPC can be admitted for hearing, only if it is shown that the matter involves substantial questions of law for consideration.
17. What is the substantial question of law and when High Court can interfere when the findings of the courts below can be interfered was dealt with by the Hon’ble Supreme Court in the following judgments:
1. Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965;
2. Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441.
18. In Santosh Hazari’s case referred to supra, it was held that on the questions of facts, the first appellate court is the last court unless it is shown that the judgment of the courts below suffer perversity. It was further held that, merely because finding of the first appellate court on question of law is erroneous, that does not entitle the High Court to interfere with the same unless it is shown that such question of law is substantial question of law.
19. In Gurnam Singh’s case referred to supra, the Hon’ble Supreme Court held that in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion to 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 in-admissible evidence or no evidence.”
(emphasis supplied) 20. In the light of the above judgments, this Court has to see whether the conclusions drawn by the courts below are contrary to any mandatory provisions of the applicable law, judicial precedents of the Hon’ble Supreme Court or based on inadmissible evidence or no evidence and whether case involves substantial question of law.
Re: Admissibility of the document:
21. So far as admissibility of Ex.P20 the certified copy of the sale deed, the certified copy of the deposition of PW-1 made available to this court shows that Ex.P20 was marked in evidence without any objections regarding admissibility. PW-1 in his deposition stated that he has lost the original sale deed. That was not disputed in his cross- examination. Therefore, for the first time in this appeal, it is not open to challenge the admissibility of the said document.
Re: Execution of sale deed:
22. The sale deed was said to be executed by defendant No.1. He was examined as DW-4. Though DW-4 denied the execution of the sale deed in his written statement and deposition, the courts below rejecting his defence held that execution of document Ex.D1 as per Ex.P20 was proved. He did not challenge the said finding before the first appellate court by filing cross-objections or any appeal. Therefore, those findings attained finality. Since defendant No.2 is not the executant of the document, now it is not open for him to challenge that finding in this appeal.
Re: Validity of the sale:
23. Defendant No.2 contended that defendant No.1 had no right to sell the property as it was an ancestral property. As per the case of the plaintiff and as per the recitals in Ex.P20, the sale was for family necessity and that was denied by defendant Nos.1 and 2. Ex.P20 says that sale was effected to meet the marriage expenses of his brothers. According to the plaintiff, when Channabasappa died, except defendant No.2, all other sons were minors and defendant No.1 was managing the affairs of the family as Kartha.
DW-1 in his cross-examination states that he does not know when the property was sold to the plaintiff and who sold that. DW-1 in his cross- examination in the first paragraph admits that at the time of death of his father, he was 15-16 years old and defendant No.1 was the first son in the family. He further admits that after the death of his father, first defendant was looking after the affairs of the family. Therefore, the fact of defendant no.1 being the Kartha of the family was rightly accepted by the courts below.
DW-1 in his cross-examination to the suggestion that in the sale deed there is a recital that the property was sold to meet the marriage expenses pleads his ignorance, but he does not deny that.
PWs-2 and 3, who hail from the village of the defendants themselves, state that defendant No.1 was the Manager of the family and he was the senior member and he sold the property for the family necessity. That evidence was not impeached. Thus, the courts below held that sale was for family necessity.
Re: Possession:
24. It was contended that even after sale, the name of father of the defendants continued in the revenue records and defendants were in possession, therefore, sale was not acted upon. Exs.P2 to P7 and P10 the RTC records showed that the name of the plaintiff was mutated on the basis of the sale deed and his name was shown in the cultivator’s column from 1972-73 to 1982-83 and 2000 to 2002. The records produced show that in the year 2004 for the first time on the application of the defendants, their names were entered and ultimately in revenue litigation, the parties were directed to the civil court.
Further, the notices issued by the Agricultural Co-Operative Society of Mathighatta showed that plaintiff had availed loan by creating charge on the suit property and the notices were issued for recovery of the said loan. These documents negatived the contention of the defendants that the sale deed was not acted upon and they were in possession of the property even after the sale deed.
Relying on the statement of PW-2 in his cross- examination that defendant No.1’s nephew was residing in the suit property, it was contended that, that was an admission, however, same witness says that nephew was residing ten years back, therefore, that cannot be called as an admission of possession of the defendants.
25. Under these circumstances, no perversity can be imputed to the judgments of the courts below. The judgments of the courts below do not fit into three criteria prescribed in Gurnam Singh’s case or do not constitute substantial question of law as explained in Santosh Hazari’s case referred to supra.
26. No ground as required under Order XLI Rule 27 CPC is made out to accept additional evidence.
Therefore, it is not a fit case for admission. Appeal and I.A.Nos.1 and 2/2019 are dismissed with costs.
Sd/- JUDGE KNM/-