IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1826/2015 (DEC) BETWEEN:
SRI S.NAGENDRA S/O LATE H.B.SIDDAIAH AGED ABOUT 56 YEARS R/AT NO.546, ARAKESHWARA NAGARA MANDYA CITY – 571 130 …APPELLANT (BY SRI H.C.SHIVARAMU, ADV.) AND:
SMT.R.SHRUTHI W/O N.UMESH D/O LATE S.RAVINDRA AGED ABOUT 25 YEARS NO.681, MANCHEGOWDANAKOPPALU VIJAYANAGARA POST MYSORE – 571 130 …RESPONDENT (BY SRI S.N.BHAT, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.07.2015 PASSED IN R.A.NO.47/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MANDYA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.06.2012 PASSED IN O.S.NO.455/2010 ON THE FILE OF THE COURT OF PRL.CIVIL JUDGE, MANDYA.
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 defendant arises out of the judgment and decree dated 29.7.2015 in Regular Appeal No.47/2012 passed by the II Additional Senior Civil Judge, Mandya.
2. By the impugned judgment and decree, the First Appellate Court dismissed I.A.No.2 filed under Order XLI Rule 27 r/w Section 151 CPC by the defendant for leading additional evidence and also the appeal of the appellant and confirmed the judgment and decree dated 30.6.2012 in O.S.No.455/2010 passed by the Principal Civil Judge, Mandya.
3. By the said judgment and decree, the Trial Court decreed the suit of the respondent/plaintiff for declaration of her title to the suit properties and for possession.
4. Respondent filed O.S.No.455/2010 on the file of the Prl.Civil Judge, Mandya, against the appellant for declaration of her title to plaint ‘A’ and ‘B’ schedule properties and for possession.
5. For the purpose of convenience, parties will be referred to henceforth as per their ranks before the trial court.
6. Plaint ‘A’ and ‘B’ schedule properties were as follows:
A. Schedule SL.NO. SY.NO. EXTENT OF LAND (in guntas) 1 533/1-P5 0.07.08 1a 533/1-P7 0.37.08 2 532/1-P2 0.10.8 3 478/5A 0.10 4 479/1-P1 0.16 5 544/1-P1 0.04.04 B.Schedule
7. Undisputed facts of the case were as follows:
The plaintiff’s father S.Ravindra and the defendant were the full brothers. They were the children of one Puttachannamma and H.B.Siddaiah. Plaint ‘A’ schedule properties along with some other properties were owned by one Kempegowda @ Kullegowda. Said Kempegowda had no issues. Therefore, he had fostered Puttachannamma as his foster daughter. Kempegowda @ Kullegowda under the registered Will Ex.P21 bequeathed lands in Sy.No.533/1-P5, Sy.No.532/1-P2, Sy.No.478/5A, Sy.No.479/1-P1 and Sy.No.544/1-P1 in favour of Ravindra and defendant. The plaint ‘A’ schedule properties are half of the properties so bequeathed under the Will Ex.P21. Kempegowda @ Kullegowda died in the year 1977. Plaintiff’s parents Ravindra and Sudha died in 1999 when she was minor. The defendant was looking after the properties bequeathed under the Will as well as plaint ‘B’ schedule properties. Plaint ‘B’ schedule properties were purchased under common sale deed Ex.P20 and the sale deeds were standing in the name of plaintiff’s father Ravindra.
8. Plaintiff filed the suit contending that plaint ‘B’ schedule properties were the exclusive properties of her father and the properties bequeathed in favour of the defendant and Ravindra under the Will Ex.P21 were partitioned amongst the brothers during the lifetime of Ravindra and in such partition, plaint ‘A’ schedule properties were allotted to the share of Ravindra. She contended that thus plaint ‘A’ and ‘B’ schedule properties were the absolute properties of her father and on she attaining majority also, the defendant was not ready to hand-over those properties to her. The plaintiff got issued notice Ex.P17 to the defendant calling upon him to hand-over the possession of the suit properties, which he did not concede. Therefore, she filed the suit.
9. The defendant in his written statement denied the partition of ‘A’ schedule properties and that ‘B’ schedule properties were the self-acquired properties of Ravindra. He contended that ‘B’ schedule properties were purchased by his father out of the joint family funds of himself, his father and Ravindra in the name of Ravindra. He further contended that plaint ‘A’ schedule properties were jointly bequeathed to himself and Ravindra and therefore, he has equal share in plaint ‘A’ schedule properties.
10. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property as on the date of suit?
2. Whether the plaintiff proves that the defendant is in unlawful possession of the suit schedule property?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the suit is bad for mis-description of the suit schedule property?
5. Whether the plaintiff is entitled for the relief of declaration as sought for?
6. Whether the plaintiff is entitled for the vacant possession of the suit schedule property from the defendant as sought for?
7. What order or decree?
11. In support of her case, plaintiff got herself examined as PW-1and Exs.P1 to P23 were marked on her behalf. The defendant got himself examined as DW-1 and got marked Exs.D1 to D24.
12. The trial court after hearing the parties decreed the suit on the following grounds:
(i) The oral evidence and the documentary evidence prove that there was a partition in the properties bequeathed in favour of Ravindra and defendant under Ex.P21 and in that partition, plaint ‘A’ schedule properties were allotted to the share of Ravindra, thus, they were his absolute properties;
(ii) The sale deeds of plaint ‘B’ schedule properties were standing in the name of Ravindra. The defendant failed to prove that himself, Ravindra and their father were the members of the joint family and the family had some nucleus to purchase plaint ‘B’ schedule properties and the properties were acquired out of such funds.
13. The defendant challenged the judgment and decree of the trial court in R.A.No.47/2012 as aforesaid. The first appellate court concurring with the reasonings and findings of the trial court dismissed the appeal.
14. Challenging the said judgment and decree, the defendant is before this Court in this appeal. 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.
15. Sri.H.C.Shivaramu, learned Counsel for the defendant submits as follows:
(i) The correctness of the boundaries and the dimensions were disputed by the defendant and the courts below failed to consider the same;
(ii) Though the defendant took up a specific plea that plaint ‘B’ schedule properties are the joint family properties, the courts below failed to frame an issue in that regard.
According to the learned Counsel for the appellant, the above two factors constitute the substantial questions of law.
16. Per contra, Sri.S.N.Bhat, learned Counsel for the plaintiff submits that the case does not involve any substantial question of law. He submits that both the courts on sound appreciation of the evidence have decreed the suit accepting the facts set up by the plaintiff and therefore, there is no case for admission.
17. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965 has held that second appeal cannot be entertained unless there is a substantial question of law. It was further 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 be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent.
18. Having regard to the said judgment, this Court has to see whether there is any substantial question of law in the case.
19. The defendant admitted that the properties shown in plaint ‘A’ schedule were acquired under the Will Ex.P21. Ex.P21 shows that plaint ‘A’ schedule properties form half of the properties in those particular survey numbers.
20. Plaintiff contended that during the lifetime of Ravindra, defendant and Ravindra partitioned the properties bequeathed under Ex.P21. Whereas defendant disputed such partition. But he did not deny that the plaint ‘A’ schedule properties formed only half of the properties acquired under Ex.P21.
21. To prove that there was a partition amongst the brothers, plaintiff relied on her own evidence and revenue records Exs.P1 to P14. Those revenue records more particularly Ex.P5 mutation register extract showed that on the application of the defendant and Ravindra, the properties bequeathed under Ex.P21 were divided and the name of Ravindra was entered to plaint ‘A’ schedule properties in the revenue records.
22. The defendant had not challenged those revenue entries till the plaintiff filed the suit on hand i.e., for about 12 years. Only thereafter he initiated the revenue disputes. Further alleging partition in those properties, plaintiff got issued notice Ex.P17. But the defendant did not issue any reply to that. He does not dispute the service of such notice and that is further proved by Ex.P18 the postal acknowledgement. Hence, at the earliest point of time, he did not dispute the case of the plaintiff in respect of ‘A’ and ‘B’ schedule properties.
23. Further, plaintiff relied on Ex.P22, the certified copy of the sale deed dated 21.6.2005 executed by the defendant in favour of one H.T.Ramesh in respect of Sy.No.479/1 measuring 1 gunta out of 16 guntas.
Sy.No.479/1-P1 is item No.4 of plaint ‘A’ schedule property. In the sale deed, the defendant himself has stated that himself and Ravindra acquired the property in Sy.No.479/1 under Ex.P21 and later they have divided the same and have taken equal share and 16 guntas constitute his half share. Defendant did not dispute Ex.P22. Therefore, the statement in Ex.P22 amounts to admission on the part of the defendant about the partition in the properties acquired under Ex.P21. Thus, that falsifies his case that there was no division in the properties acquired under Ex.P21.
24. Considering all these facts, the courts below held that plaint ‘A’ schedule properties have become absolute property of Ravindra.
25. So far as plaint ‘B’ schedule properties, admittedly the sale deeds of the said properties stood in the name of Ravindra. Defendant contended that himself, Ravindra and their father were the members of the joint family and his father acquired those properties out of the joint family funds in the name of Ravindra.
26. The pleading of the defendant with regard to joint family or acquisition by the joint family were totally bald. He did not even say who are all the members of the joint family, when his father died and what was the nucleus of the alleged joint family to acquire those properties. Under such circumstances, the courts below accepted the contention of the plaintiff with respect to plaint ‘B’ schedule properties.
27. Learned counsel for the defendant contends that the courts below did not frame any issue placing burden on the defendant to prove that there was a joint family and the properties were acquired out of the joint family nucleus, therefore, the defendant did not adduce such evidence. According to him that becomes substantial question of law.
28. The trial court framed issue No.1 to the effect whether the plaintiff proves that she is the absolute owner of the suit schedule property. That covered the contention of both of them. Moreover the parties understood the case of each other and went for trial.
The defendant all along did not seek to frame an additional issue, if he found that another issue was necessary. When such question was not raised before the courts below, for the first time defendant cannot contend that the proper issues were not framed. Such contention does not become the substantial question of law.
29. This Court in Vishwaraj –vs- B.M.Byrappa ILR 2013(2) Kar 1711 held that, if the parties have understood the case of each other and went for trial and adduced evidence covering all such contentions, non- framing of specific issue raised regarding the nature of the property does not become a substantial question of law.
30. Therefore, there is no merit in the contention that non-framing of issue becomes substantial question of law.
31. So far as identity of the properties, though the defendant contended that the boundaries are incorrect, he did not say what were the correct boundaries. He claimed the properties under Ex.P21 and the sale deed Ex.P22. The boundaries mentioned in those documents were not disputed. Therefore, he was estopped from claiming that the boundaries in those documents were incorrect.
32. Since defendant did not say what were the correct boundaries according to him and partitioned the properties bequeathed under Ex.P21, accepting the boundaries stated therein, the courts below were right in rejecting his contention regarding identity of the properties. That will not become substantial question of law.
33. This Court does not find any substantial question of law to admit the appeal. Therefore, the appeal is dismissed with costs.
In view of disposal of the appeal, pending Interlocutory Applications do not survive for consideration and are disposed of accordingly.
KNM/-
Sd/- JUDGE