IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.689/2017 (RES) BETWEEN:
SRI GANGARAJU AGED ABOUT 58 YEARS S/O LATE CHIKKAPILLAPPA R/AT DODDAMARALI VILLAGE NANDI HOBLI CHIKKABALLAPUR TALUK – 562 101 …APPELLANT (BY SRI D.A.SHIVAKUMAR, ADV.) AND:
1. SMT.KANTHAMMA AGED ABOUT 38 YEARS W/O SRI C.GANGARAJU R/AT THIPPENAHALLI VILLAGE KASABA HOBLI CHIKKABALLAPUR TALUK – 562 101 2. SMT.INDIRAMMA AGED ABOUT 48 YEARS W/O SRI C.GANGARAJU 3. SRI MANJUNATH AGED ABOUT 28 YEARS S/O SRI GANGARAJU 4. SMT.NANDINI D.
AGED ABOUT 26 YEARS D/O SRI GANGARAJU 5. KUM. SHALINI AGED ABOUT 23 YEARS D/O SRI GANGARAJU RESPONDENTS NO.2 TO 5 ARE R/AT DODDAMARALI VILLAGE NANDI HOBLI, CHIKKABALLAPUR TALUK – 562 101 …RESPONDENTS (BY SRI A.C.MANJUNATHA, ADV. FOR R1; R2, R3, R4 AND R5 ARE SERVED & UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.02.2017 PASSED IN RA NO.205/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.07.2014 PASSED IN O.S.NO.732/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC, CHIKKABALLAPUR.
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 the first defendant arises out of the judgment and decree dated 03.02.2017 in Regular Appeal No.205/2014 passed by the II Additional Senior Civil Judge & JMFC., Chickballapur.
2. By the impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellant and confirmed the judgment and decree dated 14.07.2014 in O.S.No.732/2008 passed by the Addl.Civil Judge, Chikkaballapur.
3. By the said judgment and decree, the Trial Court decreed the suit of the plaintiff/first respondent for maintenance of `2,000/- per month from the date of the suit till her life time and created charge on property bearing Sy.No.147/1.
4. First respondent was the plaintiff and respondent Nos.2 to 5 were defendant Nos.2 to 5 in O.S.No.732/2008. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.
5. Plaintiff’s case in brief is as follows:
That defendant No.1 married her on 27.2.1997 in Chickballapur and out of the said wedlock, they begot a son by name Naveen. Said Naveen died at the age of five years. Thereafter the defendants started ill-treating her and forced her to live in her parental house. The first defendant though has sufficient income has failed to maintain her and neglected her. She has no source of income. Thus, she sought maintenance of `2,000/- per month.
Plaintiff and her son Naveen filed O.S.No.109/2000 before the Civil Judge (Jr.Dn.), Chikkaballapur for partition and separate possession. In that suit, defendant No.1 promised to look after the plaintiff and her son, therefore, the said suit was dismissed on 29.11.2003. Thereafter the first defendant resiled from his promise.
6. The defence of the defendants in brief is as follows:
The marriage of plaintiff and defendant No.1 and they begetting a son are admitted. The suit schedule item no.1 property does not belong to the first defendant. In O.S.No.109/2000, plaintiff received `3,50,000/- in full and final settlement of her claim and withdrew the case. Therefore, there is no cause of action for the suit. First defendant has given Sy.No.145 measuring 1 acre 24 guntas to the plaintiff towards her permanent alimony.
7. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that defendant No.1 has will fully neglected and refused to provide maintenance?
2. Whether the plaintiff further proves that defendant No.1 is earning Rs.1,80,000/- per annum from all sources?
3. Whether defendant No.1 proves that the plaintiff had filed a suit for partition along with her son against him in OS No.109/2000, later she compromised the case by receiving Rs.3,50,000/- and land Sy.No.145, measuring 1 acre 24 guntas as her permanent maintenance?
4. Whether defendant No.1 further proves that the suit item No.1 does not belong to him?
5. Whether the defendant No.1 further proves that the suit is bad for mis-joinder of parties as defendant No.2 to 5 are not necessary parties as contended by him in para 14 of the written statement?
6. Whether the plaintiff is entitled for maintenance of Rs.2000/- per month from the defendant No.1?
7. Whether the plaintiff is entitled to create charge over suit properties by restraining the defendant No.1 from alienating the suit properties?
8. What order or decree?
8. Parties adduced evidence. Plaintiff got herself examined as PW-1 and got marked Exs.P1 to P7. Defendant No.1 got himself examined as DW-1 and he got marked the RTCs at Exs.D1 to D4.
9. The trial court after hearing the parties decreed the suit holding that first defendant failed to prove his defence that the plaintiff receiving `3,50,000/- and land in Sy.No.145 measuring 1 acre 24 guntas in full settlement of her permanent alimony has given up her claim by adducing any evidence in that regard.
10. The trial court awarded maintenance holding that the first defendant though admitted his relationship has neglected and failed to maintain the plaintiff. As aforesaid, the first defendant challenged the judgment and decree of the trial court before the First Appellate Court in R.A.No.205/2014. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
11. This being a Regular Second Appeal under Section 100 CPC, can be admitted for hearing only if the matter involves substantial question of law for consideration.
12. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 has held that on the question of fact, the first appellate court is the last court unless some perversity is shown in the judgments of the courts below. It was further held that all questions of law are not substantial questions of law. It was held that to be a substantial question of law, there must be first a foundation laid to it in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts.
13. Whether this case involves any substantial question of law is the question before this Court.
14. Learned Counsel for the appellant submits that though the appellant did not produce any document in proof of his contention that plaintiff has received `3,50,000/- and land, in full settlement of her claim for maintenance, she admitted that she along with her son has sold Sy.No.145 and the courts below, ignored such admission and that is the substantial question of law.
15. The trial court has extracted the deposition of PW-1 in its judgment. Referring to that, learned Counsel for the appellant submits that the statements made in the deposition are the material admission, which prove the defence of the first defendant.
16. In the said deposition, plaintiff denies suggestion that she withdrew O.S.No.109/2000 receiving land bearing Sy.No.145 in full settlement of her claim. She denies the suggestion that she has sold Sy.No.145 to one Narayanaswamy. Though she admits that she has subscribed her signature in the Sub-Registrar’s office, she denies the suggestion that she received the consideration amount for withdrawing the suit. Same is her evidence with reference to land bearing Sy.No.143/3.
17. When the defendant took specific contention that receiving some amount and land in full settlement of her claim for permanent alimony, she has withdrawn O.S.No.109/2000, the burden was on him to prove that. First of all, O.S.No.109/2000 was not a suit for maintenance, it was a suit filed by the plaintiff and her son for partition and separate possession.
18. Secondly, the first defendant did not adduce any evidence in proof of payment of `3,50,000/- or any consideration amount out of the sale proceeds of Sy.No.145. He claims that said settlement was arrived before the Lok Adalat. If that be so, such document could have been easily secured. He did not choose to produce such evidence.
19. In the light of such evidence, the courts below were right in holding that the first defendant has failed to prove his defence and awarding maintenance. Under the circumstances, this case does not involve any substantial question of law to admit the appeal. Therefore, the appeal is dismissed.
In view of disposal of the appeal, I.A.No.1/2017 does not survive for consideration and disposed of accordingly.
KNM/-
Sd/- JUDGE