Dismissed

The President v. Sri D Sadashivaiah

Karnataka HC26 Aug 2021RSA/102/2015

Case brief

AI extract

What is this about?

This second appeal challenges the lower courts' decree declaring a suit property to revert to the donators due to failure of the condition precedent (construction of a Kalyana Mantapa) in a gift deed. The High Court dismissed the appeal, holding that concurrent findings of fact were binding and no substantial question of law arose under Section 100 of the CPC.

What did the court decide?

The judgment and decree dated 16.03.2013 in Regular Appeal No.3 of 2010 and the judgment dated 18.11.2009 in OS No.254 of 1992 confirming the reversion of the property are confirmed.

The President Vs Sri D Sadashivaiah — Contract and Commercial Disputes | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF AUGUST, 2021

¶2

BEFORE

¶3

THE HON’BLE MR. JUSTICE E.S. INDIRESH

¶4

REGULAR SECOND APPEAL NO.102 OF 2015

¶5

BETWEEN:

¶6

THE PRESIDENT KURUHINASHETTY SANGHA KANAKAPURA BRANCH BY ITS PRESIDENT SRI D HUCHAPPA S/O LATE DODDAPUTTAPPA AGED ABOUT 55 YEARS MG ROAD KANAKAPURA TOWN

¶7

NOTE:THE PRESENT PRESIDENT OF 1^ST APPELLANT IS SRI RAMACHANDRA S/O LATE RAMAIAH AGED ABOUT 61 YEARS R/AT VASUDEVA NIVASA 3^RD CROSS, VIVEKANANDANAGARA KANAKAPURA TOWN & TALUK RAMANAGARA DISTRICT-572117.

¶8

THE SECRETARY

¶9

KURUHINASHETTY SANGHA KANAKAPURA BRANCH BY ITS SECRETARY SRI RAMACHANDRA S/O LATE RAMANNA AGED ABOUT 57 YEARS M G ROAD KANAKAPURA TOWN

¶10

¶11

NOTE: THE PRESENT SECRETARY OF THE 2ND APPELLANT SANGHA IS SRI K H MURALIDHARA S/O K N HUCHAPPA AGED ABOUT 39 YEARS R/AT KANAKAPURA TOWN & TALUK RAMANAGARA DISTRICT-572117

¶12

…APPELLANTS

¶13

(BY SHRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI D VIJAYKUMAR, ADVOCATE)

¶14

AND:

¶15

SRI D SADASHIVAIAH SINCE DEAD BY HIS LRS

¶16

K S MURALIDHAR S/O LATE D SADASHIVAIAH AGED ABOUT 37 YEARS

¶17

K RUKMINIYAMMA W/O LATE D SADASHIVAIAH AGED ABOUT 34 YEARS RESPONDENT NO.1 AND 2 ARE R/O SLN ROAD, J C EXTENSION KANAKAPURA.

¶18

NALINA

¶19

D/O LATE D SADASHIVAIAH W/O D RAMESH AGED ABOUT 50 YEARS R/O LAKADAWALA COMPLEX CROSS GATE, “B” WING, 301 ANDHERI WEST MUMBAI-400058.

¶20

INDIRA

¶21

D/O LATE D SADASHIVAIAH W/O H B KUMAR AGED ABOUT 47 YEARS R/O NO.46, I MAIN

¶22

¶23

GAYATHRIDEVI PARK EXTENSION VAYALIKAVAL BENGALURU.

¶24

GEETHA

¶25

D/O LATE D SADASHIVAIAH AGED ABOUT 45 YEARS R/O NO.727, 4^TH MAIN KENGERI SATELLITE TOWN VAYALIKAVAL BENGALURU.

¶26

…RESPONDENTS

¶27

(BY SRI V F KUMBAR, ADVOCATE FOR R1,2 AND 4; SRI HEGDE PRAKASH, ADVOCATE FOR R3 AND 5)

¶28

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 16.03.2013 PASSED IN REGULAR APPEAL NO.3 OF 2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.11.2009 PASSED IN OS.NO.254 OF 1992 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC, KANAKAPURA.

¶29

IN THIS APPEAL ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶30

J U D G M E N T

¶31

This appeal is preferred by the defendants challenging the judgment and decree dated 16^th March, 2013 in Regular Appeal No.3 of 2020 passed by the Principal Senior Civil Judge and CJM, Ramanagar, confirming the judgment and decree dated 18^th November, 2009, passed in OS No.254 of 1992 on the file of

¶32

¶33

Civil Judge (Jr.Dn.) and JMFC at Kanakapura, decreeing the suit of plaintiffs.

¶34

For the sake of convenience, parties in this appeal are referred to with their ranking before the trial Court.

¶35

The case of plaintiffs is that they are the absolute owner of the suit property and they have created a Trust and handed over the same as a Trust property to Kuruhina Settar Sangha, Kanakapura for the purpose of construction of Kalyana Mantapa exclusively for the members of Kuruhina Settar community. Trust Deed was registered on 29^th June, 1972. However, even after handing over the possession of the property in question for the purpose of construction of Kalyana Mantapa, the defendants transgressed the conditions imposed in the Trust Deed and no efforts have been made to construct the Kalyana Mantapa in the schedule property, inter alia, defendants are allowing the third parties to put up their own construction and as such, the intention of the plaintiffs creating the Trust has not been fulfilled and in view of the same, plaintiffs have filed OS No.254 of 1992

¶36

on the file of the trial Court, seeking for relief that, the registered Gift Deed dated 29^th June, 1972 is invalid on the ground that the purpose for which it was gifted was frustrated

¶37

¶38

and accordingly, sought of reversion of schedule property to the plaintiffs.

¶39

On service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that the said property has been gifted to the Kurihina Shettar Sangha for the purpose of construction of Kalyana Mantapa and thereafter, they got converted the property for non-agriculture purpose. However, they were not able to construct the Kalayana Mantapa due to paucity of funds and as such, they intend to construct the Kalyana Mantapa by mobilizing funds from their community people, at the earliest. The defendants denied the averment made in the plaint with regard to allowing the third parties to encroach the schedule property.

¶40

On the basis of the pleadings on record, the trial Court

¶41

framed following issues for its consideration:

¶42

1. Whether the plaintiffs prove that the suit schedule property was handed over to the defendants as Trust property?

¶43

1. Whether the plaintiffs prove that the defendants failed to fulfill the intention of the donor of the trust property?

¶44

¶45

1. Whether the plaintiffs prove that the suit schedule property is neglected and misused for the purpose other than it was entrusted?

¶46

4). Whether the defendants prove that the suit schedule property is gifted by the plaintiffs?

¶47

1. Whether the defendants prove that this court has no pecuniary jurisdiction to entertain the plaintiff suit?

¶48

1. Whether the plaintiffs entitle for the relief sought in the plaint?

¶49

1. What order or relief the party is entitled to?

¶50

Legal representative of the plaintiff was examined as PW1 and examined another witness as PW2 and produced sixteen documents and same were marked as Exhibits P1 to P16(a). On the other hand, defendant has examined its Office bearer as DW1 and produced four documents and same were marked as Exhibits D1 to D4. The trial Court, after considering the material on record, by judgment and decree dated 18^th November, 2009, decreed the suit and declared that the suit property shall revert back to plaintiffs. Being aggrieved by the judgment and decree passed by the trial Court, defendants have filed Regular Appeal No.3 of 2010 on the file of the First Appellate Court and the same was resisted by the plaintiffs. The First Appellate Court, after considering the material on record,

¶51

¶52

by its judgment and decree dated 16^th March, 2013, dismissed the Appeal and as such, confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same, the defendants have presented this Regular Second Appeal.

¶53

I have heard Sri Ashok Haranahalli, learned senior Counsel appearing for Sri D Vijaya Kumar, learned counsel for the appellants and Sri V.F. Kumbar, learned Counsel appearing for respondents No.1, 2 and 4; and Sri Hegde Prakash, learned counsel appearing for Respondents No.3 and 5.

¶54

Sri Ashok Haranahalli, learned Senior Counsel appearing for the appellants contended that both the courts below have not considered the object of Exhibit P1, which is a Trust Deed, no discussion has been made as to whether it is a Public Trust or a Private Trust. He further contended that both the courts below have not considered the scope and ambit of Section 92 of Code of Civil Procedure and in view of the breach of Trust, the trial Court ought to have dismissed the suit as not maintainable. Learned Senior Counsel also argued that the trial Court erroneously allowed the amendment of plaintiffs to the plaint and as such, the nature of the suit itself came to be changed and further contended that defendant-Sangha had

¶55

¶56

taken the permission from the Local Body to construct Kalyana Mantapa, however, due to financial constraints, defendants were not able to construct the Kalyana Mantapa and therefore, the finding recorded by the trial Court at paragraphs 25 and 26 of the judgment is contrary to records. He places reliance on the judgment of Hon'ble Supreme Court in the case of SWAMI SHIVASHNKARGIRI CHELLA SWAMI AND ANOTHER v. SATYA GYAN NIKETAN AND ANOTHER reported in AIR 2017 SC 1221 and argued that the suit should have been instituted as Public Trust under Section 92 of Code of Civil Procedure and therefore, the finding recorded by both the courts below is contrary to law and require to be interfered with in this appeal.

¶57

Per contra, Sri Hegde Prakash and Sri V.F. Kumbar, learned Counsel appearing for the respondents argued that both the courts below have appreciated the documents on record and have come to the conclusion that the defendants have not fulfilled the condition stipulated in the Trust Deed and as such, the property requires to be reverted to plaintiffs. They further argued that the property was handed over as per Trust Deed to the Kuruhina Settar Sangha for certain object mentioned therein, however, the defendants have changed the nomenclature as

¶58

¶59

“Kuruhinashetty”, which is not a community of settler of the Trust. They also contended that the judgment referred to by the learned Senior Counsel is actually in their favour and as such, argued that this Court cannot interfere with the concurrent finding on facts arrived at by both the courts below and as such, sought for dismissal of the appeal.

¶60

In the light of the arguments advanced by learned counsel appearing for the parties, I have carefully considered the findings recorded by both the courts below and examined the records. Though the learned Senior Counsel appearing for the appellant contended that the Courts below have not considered whether the Trust is a Private Trust or Public Trust and would attract Section 92 of Code of Civil Procedure, I have carefully scrutinised the written statement and the memorandum of appeal filed by the appellants before the trial Court and the First Appellate Court respectively, and the same is silent on these aspects, and therefore, the appellants cannot be permitted to raise this plea for the first time in the second appeal. I am also conscious of the fact that parties cannot be permitted to take new contention in the appeal as held by Hon'ble Supreme Court

¶61

¶62

in the case of KARPAGATHACHI AND OTHERS VS

¶63

NAGARATHINATHACHI reported in AIR 1965 SC 1752.

¶64

In this regard, the true intention of the executant of the Deed is paramount. Exhibit P1 reads as under:

¶65

“PÀ¯Áåt ªÀÄAl¥ÀªÀ£ÀÄß PÀnÖ¸ÀÄªÀÅzÀPÉÌ ªÀiÁvÀæ G¥ÀAiÉÆÃV¸ÀvÀPÀÌzÀÄÝ ²ªÁ¬Ä ¨ÉÃgÉ G¥ÀAiÉÆÃUÀPÁÌUÀ° ¥ÀgÁ¢üÃ£À ªÀiÁqÀÄªÀÅzÀPÁÌUÀ°Ã CªÀPÁ±À«gÀÄªÀÅ¢®èªÉA§ µÀgÀwÛUÉ ¸ÀAWÀzÀªÀgÀÄ §zÀÞgÁVgÀvÀPÀÌzÀÄÝ. F d«ÄÃ¤£À°è ¸ÀAWÀzÀªÀgÀÄ PÀ¯Áåt ªÄAl¥À ªÀ £À Äß PÀ nÖ¹ ¸À AWÀ zÀ ªÀ gÀ ÄÀ EzÀgÀ ªÀiÁå£ÉÃdÄªÉÄAlÄ ªÀÄvÀÄÛ ªÀiÁ°ÃPÀvÀéªÀ£ÀÄß ºÉÆAzÀvÀPÀÌzÀÄÝ ¸ÀAWÀzÀªÀgÀÄ CªÀgÀ EµÀÖ ¥ÀæPÁgÀ ¸ÁªÀðd¤PÀ G¥ÀAiÉÆÃUÀPÉÌ G¥ÀAiÉÆÃV¸À®Ä ¸ÀévÀAvÀæ ªÀiÁ°ÃPÀgÁVgÀÄwÛÃj.”

¶66

(emphasis by me)

¶67

It further reads as under:

¶68

“ d«ÄÃ£À£ÀÄß £ÁªÀÅUÀ¼ÀÄ F ¢ªÀ¸À £ÀªÀÄäUÀ¼À ¸Àé¸ÀAvÉÆÃµÀ¢AzÀ®Æ RÄzÀÄÝ gÁf¬ÄAzÀ®Æ M¦à §gÉ¹PÉÆlÖ zÁ£ ¥À vÀ æ F zÁ£À zÀ ªÀÄÆ® À zÀ¸ÁÛªÉÃd£ÀÄß zÁR¯É §UÉÎ ¤ªÀÄä ªÀ±ÁPÉÆnÖgÀÄvÉÛÃ£É JA§ÄzÁV £ÀªÀÄäUÀ¼À RÄzÀÄÝ gÁf¬ÄAzÀ M¦à §gÉ¹PÉÆlÖ zÁ£ ¥À vÀ æ ¸À »À . F ¸évÀ Û£À Äß ¤ÃªÀ Å À ¥gÁ¢üÃ£À ªÀ iÁrzÀ °è CAzÀ Ä HfðvÀ ªÁUÀ ÄªÀ Å¢®è. F ¸À éwÛ£À ªÀ iÁ°ÃPÀ vÀ é À £ªÀ Ää£À ß ºÉ ÆA¢gÉ ÄvÀ Û JA§ µÉ gÀ wÛUÀ ¤ÃªÉ Å §zÀ ÞgÁVgÀ ÄwÛÃjÀ . ”

¶69

(emphasis by me)

¶70

Further, it reads thus:

¶71

¶72

“F ªÄÃ®ÌAqÉ zÁ£À zÀ ¤ªÀ Ã±É £À zÀ °è ¸À AWÀ zÀ ªÀ gÀ ÄÀ PÀ¯Áåt ªÀÄAl¥ÀªÀ£ÀÄß PÀnÖ¸ÀÄªÀÅzÀPÉÌ ªÀiÁvÀæ G¥ÀAiÉÆÃV¸ÀvÀPÀÌzÀÄÝ MAzÀÄ ªÉÃ¼É ¸ÀAWÀzÀªÀgÀÄ PÀ¯Áåt ªÀÄAl¥ÀªÀ£ÀÄß PÀnÖ¸ÀzÉÃ ¨ÃgÉ G¥É AiÀ ÆÃV¸É zÀ Ý°è F À zÁ£ªÀ Å HfðvÀ ªÁUÀ ÄªÀ Å¢®èÀ . F ¸ÀéwÛ£À ªiÁ°ÃPÀ vÀ éªÀ Å ¥À Ä£À : £À ªÀ ÄUÀ ÃÉ ¸ÃgÉ ÄªÀ ÅzÁVgÀ ÄvÀ Û.É ”

¶73

(emphasis by me)

¶74

Exhibit P3 is the reply dated 18^th October, 1991 by the defendants to the legal notice (Exhibit P2) issued by the plaintiff. Reply to the legal notice, reads as under:

¶75

“We are going to construct a Kalyana Mandira by taking Donations and Gifts from our own Community people in Karnataka State and as well as from the People of India as a whole, wherever our community people are residing; on a large scale which cost about and estimated about 15 lakhs of Rupees; and the work is going to be started from April 1992 and onwards positively.

¶76

As per your Registered Notice dated 01.10.1991, Nobody has occupied or encroached this gifted land; Our own Community Family one Sri, Late Doddaputtaiah and Sons have gifted and constructed a Temple at their own cost for the future development; of our Kuruhina settlee Kalyana Mandir with our Sangha’s site and also with our community people’s Request; This portion gifted building would be utilised as a Temple in Future adjacent to our Kalyana Mandira;”

¶77

¶78

Perusal of Exhibit P4 would clearly indicate that a building has been under construction in the schedule property and the said Exhibit P4 is the endorsement issued by the TMC, Kanakapura. Exhibits P6 to P16 are the photographs which would clearly establish the fact that there is a construction of building in the suit schedule property. In these background of the documents, DW1 in his cross-examination deposed as follows:

¶79

“¤¦-3 gÀ°è ¤ÃrzÀ GvÀÛgÀzÀAvÉ ¸ÀA§AzsÀ¥ÀlÖ D¹ÛAiÀÄ°è ¨ÉÃgÉ AiÀiÁªÀÅzÉÃ C¥ÀjavÀgÀÄ ¸Áé¢üÃ£ÀvÉ ºÉÆA¢®è DzÀgÉ ¸ÀªÀÄÄzÁAiÀÄzÀ PÀÄlÄA§zÀªÀgÉÃ DzÀ ²æÃ zÉÆqÀØ¥ÀlÖAiÀÄå ºÁUÀÆ ªÀÄPÀÌ¼ÀÄ zÁ£ÀªÁV PÉÆlÄÖ CzÀgÀ°è ¸ÀéAvÀ ªÉZÀÑzÀ°è MAzÀÄ zÉÃªÀ¸ÁÜ£ÀªÀ£ÀÄß ¸ÀzÀj D¹ÛAiÀÄ°è PÀnÖzÁÝgÉ£ÀÄßªÀÅzÀÄ EgÀ§ºÀÄzÀÄ”

¶80

Perusal of the evidence mentioned above would clearly substantiate the fact that both the parties understood the Exhibit P1 as a Gift Deed, however, they have stated it as a Trust Deed. Exhibit P1 discloses the intention of the donor that the purpose of handing over the schedule property to the defendants is for the purpose of construction of Kalyana Mantapa, to be utilised by their community people only. Undisputably, Exhibit P1 is executed in the year 1972 and perusal of the evidence of DW1 would indicate that no

¶81

¶82

construction has been made by the defendants to fulfill the conditions of the donors. In that view of the matter, I am of the considered view that the finding recorded by the trial Court is just and proper. Perusal of Exhibit P1 would further substantiate that the ownership is retained by the donors and the said property had been handed over to the defendants for the purpose of construction of Kalyana Mantapa and in that view of the matter, the finding recorded by the trial Court that nonfulfilling the condition stipulated in Exhibit P1 by the defendants would frustrate the desire of the plaintiffs and as such, directing the defendants to revert back the schedule property to the plaintiffs, is just and proper. I have also noticed that DW1 in the cross-examination referred to above, admits that one Doddaputtaiah and his children have constructed a temple in the suit schedule property and the perusal of the photographs at Exhibits P6 to P16 along with evidence of PW1 and DW1 would make it clear that certain construction have been made in the suit schedule property and in that view of the matter, I am of the considered opinion that the trial Court was justified in decreeing the suit with a direction to the defendants to vacate the suit schedule property.

¶83

¶84

I have also carefully considered the re-appreciation of evidence by the First Appellate Court. The First Appellate Court has considered the case on merits in detail, re-appreciated the evidence of the parties and after applying the principles laid down by the Apex Court and the law declared by various High Courts, has arrived at a conclusion that the defendants have not constructed Kalyana Mantapa even after twenty years, in terms of the conditions stipulated in Exhibit P1 and the same amounts to frustrating the intention of the plaintiffs and as such, confirmed the finding recorded by the trial Court, which is just and proper.

¶85

I have also noticed that the cause-title of the

¶86

defendant in the suit which reads as under:

¶87

“Plaintiff:

¶88

D Sadashivaiah (Expired)

¶89

1. K S Muralidhar S/o late D Sadashivaiah Age 28 years J C Extension (SLN Road) Kanakapura Town

¶90

2. K Rukminiyamma W/o late D Sadashivaiah R/at J C Extension (SLN Road) Kanakapura Town

¶91

¶92

3. Nalina W/o D Ramesha Age 41 years Lokandawala Complex Cross Gate, B Wing 301, Anderi West Bombay-58.

¶93

4. Indira W/o H B Kumar No.46, I Main Gayathridevi Park Extension Vyalikaval, Bangalore

¶94

5. Geetha W/o M Nataraj Aged about 36 years 727, 4^th Main, Kengeri Satellite Town Bangalore

¶95

6. Savitha W/o Madhusudhan Aged about 32 years 5^th Main, 5^th Cross RPC Layout Vijayanagar II Stage Bangalore-560 040.

¶96

Defendants:

¶97

1. The President of Kuruhina Settara Sangha Kanakapura Branch By its President Sri D Hucchappa S/o late Doddaputtappa Major, M G Road Kanakapura Town.

¶98

2. The Secretary of Kuruhina Settara Sangha Kanakapura Branch By its Secretary Sri Ramachandra, Advocate S/o late Ramanna

¶99

¶100

Major Ramanagara Road Kanakapura Town.”

¶101

Before the First Appellate Court cause-title of the

¶102

defendant reads as under:

¶103

“ Appellants:

¶104

1. The President of Kuruhinashetty Sangha Kanakapura Branch By its president Sri D Hucchappa S/o late Doddaputtappa Aged about years M G Road Kanakapura Town.

¶105

2. The Secretary of Kuruhinashetty Sangha Kanakapura Branch By its Secretary Sri Ramachandra, Advocate S/o late Ramanna Aged about years Ramanagara Road Kanakapura Town.

¶106

Respondent:

¶107

D Sadashivaiah (Since dead by his LRs)

¶108

1. K S Muralidhar S/o late D Sadashivaiah Aged about 33 years

¶109

2. K Rukminiyamma S/o late D Sadashivaiah Aged about years R1 & R2 are R/at SLN Road J C Extension Kanakapura

¶110

¶111

3. Nalina D/o late D Sadashivaiah W/o D Ramesh Aged about 46 years R/at Lokadawala Complex Cross Gate, “B” Wing, 301 Andheri West Mumbai-400 058.

¶112

4. Indira D/o late D Sadashivaiah W/o H B Kumar Aged about 43 years R/at No.46, I Main Gayathridevi Park Extension Vayalikaval Bangalore.

¶113

5. Geetha D/o late D Sadashivaiah Aged about 41 years R/at 727, 4^th main Kengeri Satellite Town Bangalore. ”

¶114

It is the specific case of plaintiffs that “Kuruhinashetty

¶115

Sangha” is different from “Kuruhina Settara Sangha”. The nomenclature used in Exhibit P1 is for the purpose of “Settara Sangha”. The caste of “Shetty” as stated in the cause title before the First Appellate Court and this Court is different and therefore, the very purpose of donating the schedule property to the “Kuruhina Settar Sangha”, is frustrated and the said submission of the learned counsel for the respondents is accepted. Though the learned Senior Counsel places reliance on

¶116

¶117

the judgment of Hon'ble Supreme Court in the case of SWAMI SHIVASHNKARGIRI CHELLA SWAMI AND ANOTHER (supra), perusal the relevant paragraphs 14 to 22, would clearly establish the fact in view of breach of trust, Section 92 was pressed into service in the said case. Whereas, in the instant case, the ownership of the property is retained by the plaintiffs, however, possession was handed over to the defendants for the purpose of construction of the Kalyana Mantapa and in this regard, amendments have been made to the plaint which had reached finality and in that view of the matter, Section 92 of the Code of Civil Procedure is not applicable to the facts of this case and that too, perusal of the written statement referred to above would clearly indicate that the defendants are of the opinion and have understood that Exhibit P1 is a Gift Deed and not a Trust Deed and in that view of the matter, any amount of arguments advanced by the learned Senior Counsel allegeing that Exhibit P1 is a Trust Deed cannot be accepted and the same is contrary to pleadings on record. Therefore, the finding recorded by both the courts below is just and proper and there is no infirmity or illegality committed by both the courts below in decreeing the suit of plaintiffs. I have also noticed that both the courts below,

¶118

¶119

on concurrent facts on record and after appreciation of material on record as required under law, have decreed the suit and therefore, no interference is called for in this appeal by exercising jurisdiction under Section 100 of Code of Civil Procedure.

¶120

In this regard, it is useful to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS reported in (2015)4 SCC 264, whereunder at paragraphs 13 and 16 of the judgment, it is observed as under:

¶121

“13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. …

¶122

14 and 15. xxx xxx xxx

¶123

16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule

¶124

¶125

property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.”

¶126

The Hon'ble Supreme Court in the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the judgment, has observed thus:

¶127

“7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

¶128

(i) Contrary to the mandatory provisions of the applicable law;

¶129

¶130

(ii) Contrary to the law as pronounced by the Apex Court;

¶131

¶132

¶133

(iii) Based on inadmissible evidence or no evidence.

¶134

It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

¶135

7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:

¶136

10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

¶137

11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

¶138

12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.

¶139

13. In either of the above situations, a substantial question of law can arise.”

¶140

¶141

Further, in the case of S. SUBRAMANIAN v S. RAMASAMY ETC. reported in AIR 2019 SCC 3056, at paragraphs 8.1, 8.2 and 8.5 of the judgment, the Hon’ble Supreme Court has observed thus:

¶142

“8.1. …As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

¶143

8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate

¶144

¶145

Court, unless it finds that the conclusions drawn by the lower Court were erroneous….

¶146

8.3. and 8.4. xxx xxx xxx

¶147

8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to reappreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts

¶148

¶149

below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.”

¶150

It is settled principle of law that even if two inferences are possible in a given set of circumstance, the finding recorded by the lower appellate court is binding on the high Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS reported in (2020)4 SCC 649, wherein at paragraphs 25 and 26 of the judgment, the Hon'ble Supreme Court has observed thus:

¶151

“ 25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail MadrisUn-Niswan, it was held that findings of the fact could not have been interfered with in the second appeal. This Court held as under:

¶152

“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the

¶153

¶154

practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

¶155

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

¶156

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

¶157

14. In Navaneethammal v. Arjuna Chetty (1996

¶158

6 SCC 166), this Court held :

¶159

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

¶160

15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

¶161

"The High Court was grossly in error in trenching upon the appreciation of evidence

¶162

¶163

under Section 100 CPC and recording reverse finding of fact which is impermissible."

¶164

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

¶165

“5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its

¶166

¶167

opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence. ”

¶168

Applying the aforementioned principle of law to the facts on hand, I am of the considered view that, no interference is called for in this appeal as there is no illegality or perversity in the impugned judgment and decree passed by the courts below. Since the appellants have not made out a case for interference under Section 100 of Code of Civil Procedure, and no substantial question of law is required to be considered in this appeal for the reasons aforestated, appeal is liable to be dismissed at the admission stage itself. Hence, I pass the following:

¶169

ORDER

¶170

Appeal dismissed;

¶171

The judgment and decree dated 16^th March, 2013 passed in Regular Appeal No.3 of 2010 by the Principal Senior Civil Judge and CJM, Ramanagara confirming the judgment and decree dated 18^th November, 2009 passed in

¶172

¶173

Original Suit No.254 of 1992 by the Principal Civil Judge (Jr.Dn) and JMFC, Kanakapura is confirmed.

¶174

Sd/JUDGE

¶175

lnn

The President v. Sri D Sadashivaiah

Case brief

What is this about?

What did the court decide?

The President v. Sri D Sadashivaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nagarathnamma Vs Lakshmi @ Lakshmi Devamma

Smt Lalithamma Vs Rangaramaiah

Sri Anjinappa Vs Smt Babun Bi

Smt Mani Vs Sri Chandi Shivanna

Sri. Madhu Vs Sri. H.G. Prakash

Sri M N Shivarudraswamy Vs Smt Gowramma