IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1884 OF 2016 (PAR) BETWEEN:
1. SRI NANJUNDAPPA S/O LATE CHIKKATHAMMAIAH AGED ABOUT 68 YEARS 2. SHRI SOMASHEKAR @ SOMA S/O NANJUNDAPPA AGED ABOUT 39 YEARS BOTH R/AT MADAVARA VILLAGE DASANAPURA HOBLI, NEAR PANCHAYAT OFFICE BENGALURU NORTH TALUK MADAVARA. …APPELLANTS (BY SRI NAGENDRA SHETTY, ADV.) AND:
SHRI S L SATISH S/O LAKSHMINARAYANA RAO AGED ABOUT 57 YEARS R/AT NO.248, 4TH MAIN, 1ST CROSS SARVABOUMANAGARA CHIKKALASANDRA BENGALURU – 560 061 …RESPONDENT (BY SRI VASANTH V.NAIK, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:29.07.2016 PASSED IN R.A.NO.23/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AT NELAMANGALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.3.2013 PASSED IN O.S.NO.803/2008 ON THE FILE OF PRINCIPAL II CIVIL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This defendants’ second appeal arises out of the judgment and decree dated 29.7.2016 passed by the Senior Civil Judge, Nelamangala in R.A.No.23/2013. By the impugned judgment and decree, the first appellate court dismissed the appeal of the appellants and confirmed the judgment and decree dated 23.3.2013 in O.S.No.803/2008 passed by the Principal II Civil Judge, Bangalore Rural District, Bangalore, granting decree for perpetual injunction in favour of the respondent/plaintiff.
2. Respondent was the plaintiff and appellants were the defendants before the trial court in O.S.No.803/2008. The subject matter of the suit was the site bearing Khaneshumari No.28 carved out of Sy.No.60/4 of Madavara village, Dasanapura Hobli, Bengaluru North Taluk, measuring East-West 30 feet and North-South 41 feet.
3. For the purpose of convenience, the parties will be referred henceforth with their ranks before the trial Court.
4. Plaintiff contended that the land bearing Sy.No.60/4 in all measuring 1 acre 25 guntas had fallen to the share of Chikkalakshmaiah, the husband of Gowramma. It was contended that he formed layout and on his death, plaintiff purchased the suit site under the registered sale deed dated 23.6.1984 and defendants are interfering with her peaceful possession and enjoyment of the suit property. Thus, she claimed decree for permanent injunction.
5. Defendants contended that land bearing Sy.No.60/4 was the joint family property of themselves and Chikkalakshmaiah and Gowramma had no right to sell the said property. They further contended that one of the members of their joint family has filed O.S.No.4393/2003 on the file of City Civil Court, Bengaluru for partition and separate possession of his share. They denied the possession of the plaintiff.
6. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves the alleged interference by the defendants?
3. What order or decree?
7. Parties adduced evidence. Plaintiff got himself examined as PW-1 and got marked Exs.P1 to P13. On behalf of the defendants, second defendant was examined as DW-1 and two witnesses were examined as DWs-2 and 3 and Exs.D1 to D14 were marked.
8. The trial court after hearing the parties decreed the suit holding that Ex.P1 the registered sale deed, Exs.P2 to P6 the tax paid receipts, Ex.P7 the building licence and Ex.P8 the approved building plan issued by the local authority and the other documents coupled with oral evidence show that Chikkalakshmaiah had executed a General Power of Attorney in favour of one Dr.Muralidhar for development of the property and to deal with the same and said Dr.Muralidhar executed agreement of sale in favour of plaintiff. The trial court further held that on the death of Chikkalakshmaiah, his wife Gowramma executed the sale deed and thereby lawful possession of the plaintiff is proved. It was further held that very denial of the plaintiff’s right by defendants proved interference and decreed the suit.
9. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
10. Sri.Nagendra Shetty, learned Counsel for the appellants submits that one of the members of their joint family had filed O.S.No.4393/2003 where the land bearing Sy.No.60/4 was also one of the subject matters of the suit. He submits that first appellant’s youngest son filed O.S.No.4393/2003 challenging the partition between defendant no.1, Chikkalakshmaiah and others effected in 1984 on the ground of fraud, etc. He further submits that the property in question is an agricultural land, therefore, forming of layout and grant of building permission is illegal; hence, plaintiff’s possession cannot be called as lawful possession and such are the substantial questions of law in the case.
11. Sri.Vasanth V.Naik, learned Counsel for the respondent submits that the very fact of first defendant’s son seeking re-opening of partition proves the admission of partition of the year 1984. He further submits that documents produced by the plaintiff sufficiently proved his title and possession and those being questions of facts, they cannot be questioned in this appeal as substantial questions of law. He further submits that, defendants had not raised any plea of illegality in grant of building licence and approved plan and therefore, that cannot be raised in this appeal for the first time as substantial question of law.
12. This being the second appeal under Section 100 CPC can be admitted only if a substantial question of law for hearing in the appeal is made out. What is the substantial question of law is elaborately 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) Thus it is clear that on facts, the first appellate court is the last court and question of fact cannot be basis for admission of the appeal. Further to claim as substantial question of law, there must be some basis for the same in the pleadings and the evidence adduced before the courts below.
13. As rightly pointed out by the learned Counsel for the plaintiff/respondent, reading of the judgments of the courts below do not indicate that defendants had raised any plea about the legality regarding grant of building plan or building licence in the suit property on the ground that they violate the provisions of the Karnataka Land Revenue Act. Therefore, that cannot be a substantial question of law.
14. So far as the lawful possession, the very fact that O.S.No.4393/2003 filed by first defendant’s son for partition claiming that partition between defendant No.1 and Chikkalakshmaiah and others effected under the registered partition deed of the year 1984 is an outcome of fraud, misrepresentation, etc. and challenging the sale deed Ex.P1 in favour of the plaintiff go to show that they admitted those documents.
15. As rightly observed by the courts below, partition of the year 1984 was challenged in the year 2003. During the course of argument, it was submitted that now that suit is also dismissed on adjudication. The courts below held that the documentary evidence Exs.P1 to P13 and oral evidence adduced proved lawful possession of the plaintiff. The second appeal cannot be admitted to re-consider such well reasoned finding on question of fact.
16. In the considered opinion of this court, the matter does not involve any substantial question of law to entertain the appeal. Therefore, appeal is dismissed.
Sd/- JUDGE KNM/-