IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.282/2017 BETWEEN SRI PADMANAIKA S/O LATE HUCHANAIKA AGED ABOUT 70 YEARS, AGRICULTURIST R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 432 SINCE DECEASED BY ITS LRS 1(a) SRI K.P. CHANDRASHEKAR S/O LATE PADMANAIKA AGED ABOUT 60 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(b) SRI K.P. GANGAPATHI S/O LATE PADMANAIKA AGED ABOUT 58 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(c) SRI K.P. RAMAMURTHY S/O LATE PADMANAIKA AGED ABOUT 56 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(d) K.P. KUMAR S/O LATE PADMANAIKA AGED ABOUT 54 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(e) SMT. NEELAMMA W/O M.N. MANJAPPA, AGED ABOUT 62 YEARS, AGRICULTURIST R/O KARONAGOLLI VILLAGE, MUMBAR POST, HOSANAGARA TALUK SHIMOGA DISTRICT – 577 431 ... APPELLANTS (BY SRI GANAPATHI, ADV.) AND:
1. SRI. NAGAPPA S/O LATE HUCHA NIAK AGED ABOUT 60 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE KARAGADI HANIYA POST, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 432 SINCE DEAD BY LRS 1(a) SMT. SHARADA W/O LATE NAGAPPA AGED ABOUT 50 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(b) SMT. TILAKA D/O LATE NAGAPPA AGED ABOUT 24 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(c) SARITRA D/O LATE NAGAPPA, AGED ABOUT 22 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 1(d) GAJANANNA S/O LATE NAGAPPA AGE 20 YEARS, R/O KUKKODU AGASARAMANE, VILLAGE, KARAGADI, HANIYA POST, HOSANAGARA TALUK SHIVAMOGGA DISTRICT – 577 432 2. SMT. SEETHAMMA W/O SHAMANAIKA AGED ABOUT 73 YEAR, R/O TOGARE VILLAGE POST, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 434 3. SMT. ERAMMA W/O MANAJAPPA AGED 63 YEARS R/O MAVINAKAOPPA HOSANAGARA TOWN, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT – 577 430 ... RESPONDENTS (BY SRI BIMBADHAR M. GOWDAR, ADV. FOR R1(a) TO R1(d); R2 AND R3 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:29.09.2016 PASSED IN R.A.NO.60/2009 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:26.03.2009 PASSED IN O.S.NO.28/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AT SAGAR.
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 29.09.2016 in Regular Appeal No.60/2009 passed by the V Additional District & Sessions Judge, Shivamogga sitting at Sagar.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of defendant No.1 and confirmed the judgment and decree dated 26.03.2009 in O.S.No.28/2001 passed by the Civil Judge (Sr.Dn.), Sagar.
3. By the said judgment, the Trial Court decreed the suit of the plaintiff for partition and separate possession of 5/12th share in the suit schedule properties.
4. The subject matter of the suit were agricultural land bearing Sy.No.17 measuring 11 acres 20 guntas, two house properties and other movables.
5. Plaintiff and defendant Nos.1 to 3 are admittedly the children of one Hucha Naika and suit schedule properties were inherited by them from said Hucha Naika. Plaintiff claimed that after the death of Hucha Naika, himself and defendants were entitled to equal share in the suit schedule properties and defendant No.1 is denying his share.
6. Defendant No.1 alone contested the suit claiming that in the year 1993 itself, there was a partition between himself and the plaintiff. He further contended that in the said partition, 3 acres of land in suit schedule item No.1 property and item No.3 house property were allotted to the share of the plaintiff. He further contended that the said partition was recorded under Ex.D10 dated 25.10.1998, therefore, the plaintiff is not entitled to seek any partition further.
7. Defendants-2 and 3 did not contest the suit.
8. Having regard to the fact that the relationship and nature of the properties were not disputed, the only issue in the suit was whether the first defendant proves that there was a partition in the year 1993.
9. The parties adduced evidence in support of their contentions.
10. The trial court rejected the contention of the earlier partition under Ex.D10, the alleged partition deed/memorandum of partition dated 25.10.1998 on the following grounds:
(i) The said document is not admissible in law;
(ii) The evidence of DW-2 and DW-5, the alleged attesting witness and the scribe is not credible;
(iii) The mother of the plaintiff and defendants-2 and 3 was not party to Ex.D10 and no share was allotted to her under the said document;
(iv) The evidence adduced by the defendant did not show that consequent to said partition, the revenue records were effected in favour of the respective sharers.
11. Aggrieved by the said judgment, the legal representatives of first defendant filed R.A.No.60/2009 before the first appellate court. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
12. 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.
13. 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. To term it as substantial question of law, that must be debatable and must have a material bearing on the decision of the case, if answered either way. Such question should emerge from the sustainable findings of fact arrived at by Court of facts.
14. Having regard to the said judgment, this Court has to see whether there is any substantial question of law in the case.
15. Sri.Ganapathi, learned Counsel for the appellants submits as follows:
(i) Plaintiff in his evidence admitted that himself and defendant No.1 were residing separately but the courts below ignored that;
(ii) The Commissioner appointed to take inventory of the suit schedule moveable property, had not issued notice to the first defendant and the inventory was one-sided one.
He submits that these are the substantial questions of law.
16. Per contra, Sri.Bimbadhar M.Gowdar, learned Counsel for the legal representatives of the plaintiff/ respondent No.1 submits that the courts below on judicious appreciation of the evidence of the parties have arrived at the conclusion that the partition set up by the first defendant is not proved. He submits that such question of fact cannot be disturbed in the second appeal.
He further submits that mere separate living of the parties for their convenience will not amount to family partition.
17. It is material to note that defendant Nos.2 and 3, who are the sisters of defendant No.1 himself, did not dispute the case of the plaintiff. It was not the case of the first defendant that there is any collusion between the plaintiff and defendant Nos.2 and 3.
18. The relationship and nature of the properties were not disputed. Defendant No.1 claimed that in the year 1993, there was a severance of status and plaintiff was allotted 3 acres of land in suit schedule item No.1 property and house at suit schedule item No.3.
19. As rightly pointed out by the courts below, in Ex.D10, there is no statement that there was a partition in the year 1993. Further, under that document, no share was allotted to mother and sisters. There is not even a mention that there are other sharers in the family. First defendant tried to contend that he looked after his mother and he performed the marriages of his sisters, therefore, he was allotted the larger share. There was no such pleading much less the evidence on record and that was not recorded under Ex.D10.
20. With regard to the evidence of DW-5, the trial court states that he himself deposed that no particulars of the properties and sharers were given to him while drafting the document, therefore his evidence is not acceptable.
21. So far as the evidence of DWs-2 and 3, the trial court says that they were not the witnesses to the alleged oral partition of the year 1993.
22. If there was a partition in the year 1993 itself as stated in Ex.D10, then that should have been acted upon and there should have been some evidence regarding that. Suit was filed in the year 2001. Right from 1993 till 2001, no mutations were effected as per the alleged partition.
23. Appreciating all these facts, the courts below rejected the partition set up by the first defendant. There is no perversity in the appreciation of the evidence by the courts below. This Court does not find any substantial question of law in 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.
Sd/- JUDGE KNM/-