Dismissed

Gangappa v. Sri Mallappa

Karnataka HC27 Jul 2021RSA/2207/2011

Case brief

AI extract

What is this about?

In a second appeal under Section 100 CPC regarding partition of joint family property, the High Court dismissed the appeal. The Court held that concurrent findings of fact by lower courts on appreciation of evidence should not be upset, and reappreciation of all evidence by the High Court is impermissible absent a substantial question of law.

What did the court decide?

The second appeal is dismissed at the admission stage since no substantial question of law has been made out.

Gangappa Vs Sri Mallappa — Partition | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 27^th DAY OF JULY, 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE E.S. INDIRESH

¶5

REGULAR SECOND APPEAL NO.2207 OF 2011

¶6

BETWEEN:

¶7

Gangappa

¶8

Since deceased by his LRs

¶9

Sri Sanjeevappa s/o late Gangappa Major

¶10

Sri Ramappa S/o late Gangappa Major

¶11

Sri Narayanappa S/o late Gangappa Major All are residents of Polenahalli village Kodigenahalli Hobli Madhugiri Taluk Tumkur District.

¶12

…Appellants

¶13

(by Sri G.S. Venkat Subbarao, Advocate)

¶14

AND:

¶15

Sri Mallappa Major

¶16

Sri Lingappa Major

¶17

¶18

Both are sons of Anjanappa

¶19

Sri Gangadharappa since deceased by his LR

¶20

Sri Nagaraju S/o late Gangadharappa Major

¶21

All are residents of Polenahalli village Kodigenahalli Hobli Madhugiri Taluk Tumkur District

¶22

…Respondents

¶23

(by Sri Harish H.V., Advocate)

¶24

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 04.10.2005 passed in RA No.108 of 1995 on the file of the Civil Judge (Sr. Dn.), Madhugiri, dismissing the appeal and confirming the judgment and decree dated 25.08.1995 passed in OS No.152 of 1993 on the file of the Principal Munsiff, Madhugiri.

¶25

This Appeal coming on for Admission, this day, the Court delivered the following:

¶26

J U D G M E N T

¶27

This Regular Second Appeal is filed by the legal representatives of the sole defendant-Gangappa, challenging the judgment and decree dated 04^th October, 2005 passed in Appeal No.108 of 1995 on the file of the Civil Judge (Sr.Dn.), Madhugiri, confirming the judgment and decree dated 25^th August, 1995 in OS No.152 of 1993 on the file of the Principal

¶28

¶29

Munsiff, Madhugiri, decreeing the suit of the plaintiff for partition and separate possession of their half share in the suit property.

¶30

Rank of parties in this appeal is referred to with their status and rank before the trial Court.

¶31

It is the case of the plaintiffs that plaintiffs’ father Anjinappa and the defendant are sons of Gudumappa and therefore, they constitute members of joint family. Defendant is the elder brother of the father of the plaintiff. It is further stated that suit schedule property are the joint family properties and the third item of the suit schedule property i.e. Survey No.121/3 has been acquired by the defendant out of the nucleus of the joint family proceeds and therefore, the same was blended into other properties of the family. It is further averred in the plaint that in view of certain dispute that arose between the members of the family, plaintiff and defendant are residing separately. The plaintiff made a request to the defendant, seeking partition of the suit schedule property, however, same was refused by the defendant and as such plaintiffs have filed OS No.152 of 1993

¶32

¶33

on the file of the trial Court, seeking partition and separate possession in respect of the suit schedule property.

¶34

After service of notice, the defendant entered appearance. However, the defendant has not filed written statement nor contested the suit.

¶35

The plaintiff No.1 was examined as PW1 and examined another witness as PW2 and produced nine documents and same were marked as exhibits P1 to P9. The trial Court, after considering the material on record, by its judgment and decree dated 25^th August, 1995 decreed the suit and held that the plaintiffs are entitled for partition and separate possession of their half share in the suit schedule property. Being aggrieved by the judgment and decree passed by the trial Court, defendant has filed Regular Appeal No.108 of 1995 on the file of the First Appellate Court and the said appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its judgment and decree dated 04^th October, 2005 dismissed the appeal and thereby confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same the

¶36

¶37

legal representatives of the original defendant have preferred this second appeal.

¶38

I have heard Sri G.S. Venkat Subarao, learned counsel appearing for the appellants and Sri Harish H.V., learned counsel appearing for the respondents.

¶39

Sri G.S. Venkata Subbarao, learned counsel appearing for the appellants contended that the trial Court has not given proper opportunity to the defendants to file written statement as well as not cross-examined the witnesses of the plaintiffs. He further contended that even if the written statement is not field by the defendants, however, the trial Court ought to have appreciated the documents on record in the right perspective, particularly, Exhibit P3-RTC extract with respect to survey No.121/3, i.e. item No.3 in the suit schedule property, is the self-acquired property of the defendant and the said aspect of the matter ought to have been considered by the trial Court while passing the impugned judgment and decree.

¶40

Per contra, Sri Harish H.V., learned counsel appearing for the respondents contended that the trial Court

¶41

¶42

has provided reasonable opportunity to the defendant to file written statement and to contest the matter on merits, however, for the reasons best known to the defendant, the defendant has not cross-examined the witnesses of the plaintiffs and the trial Court, considering the material on record, rightly decreed the suit in favour of the plaintiffs. He further contended that the First Appellate Court has reassessed the entire material on record and confirmed the judgment and decree passed by the trial Court which cannot be interfered with in this appeal.

¶43

Having heard the learned counsel appearing for the parties, it is not in dispute that, Anjinappa i.e. father of plaintiffs and original defendant-Gangappa, are the children of Gudumappa. It is the case of the plaintiffs that the suit schedule property are the joint family properties of Anjinappa and Gangappa and there is no severance in the joint family properties. Exhibits P1 to P9 are the RTC extracts of the suit schedule property which stand in the name of the defendant and plaintiff No.1 and even if the learned counsel appearing for the appellant would submit that the RTC extract insofar as survey No.121/3 stands in the name of the defendant,

¶44

¶45

however, the defendant has neither asserted his rights by filing written statement nor cross-examined the witness of the plaintiff to disprove the fact that item No.3 of the suit schedule property is the joint family property. Undisputably, there is no dispute with regard to the relationship between the parties. In view of Section 133 of the Karnataka Land Revenue Act, 1964, the entries in the RTC extract have got presumptive value and trial Court having taken note of the available material on record, decreed the suit holding that the plaintiffs together and the defendant, are entitled for half share each in the suit schedule property.

¶46

I have also examined the finding recorded by the First Appellate Court. The principal submission of the learned counsel appearing for the appellant is that no opportunity was given to the defendant to defend his case and passed the judgment and decree, however, the First Appellate Court has not properly re-appreciated the material on record. In this regard, careful examination of paragraph 12 of the judgment passed by the First Appellate Court would makes it clear that the suit was posted for filing of written statement on 04^th September, 1993 and thereafter, defendant took time to file

¶47

¶48

written statement and since the written statement was not filed by the defendant despite granting time till 14^th February, 1995 (more than one and a half years); and on the said date no representation was made by the defendant or his counsel, and as such, the trial Court noted that no written statement was filed on behalf of the defendant and accordingly posted the case for evidence on 11^th April, 1995. Since 11^th April, 1995 was declared as a General holiday by the Government and as such, case was taken up on 15^th April, 1995 and thereafter, listed on 28^th June, 1995. On the said date, plaintiff No.1 was examined as PW1 and thereafter, the case was adjourned to 21^st August, 1995 for further evidence. Perusal of the finding recorded by the First Appellate Court at paragraph 12 of the judgment would clearly indicate the fact that though the trial Court has granted ample opportunity to the defendant to file written statement as well as to contest the matter by adducing oral and documentary evidence, however, the defendant had not even chosen to crossexamine the witness of plaintiff and was not diligent in conducting the case, and as such, the First Appellate Court, having taken note of the entire factual aspects on record,

¶49

¶50

rightly dismissed the appeal which does not call for interference in this appeal.

¶51

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:

¶52

“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. …

¶53

14 and 15. xxx xxx xxx

¶54

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 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

¶55

¶56

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.”

¶57

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, the Hon’ble

¶58

Supreme Court has observed thus:

¶59

“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:

¶60

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

¶61

¶62

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

¶63

¶64

(iii) Based on inadmissible evidence or no evidence.

¶65

¶66

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.

¶67

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:

¶68

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.

¶69

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.

¶70

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.

¶71

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

¶72

¶73

The Hon’ble Supreme Court 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, has observed thus:

¶74

“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 reappreciate 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.

¶75

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

¶76

¶77

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

¶78

8.3. and 8.4. xxx xxx xxx

¶79

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 re-appreciate the entire

¶80

¶81

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 the CPC.”

¶82

In that view of the matter, since both the courts have held against the appellants and the impugned judgments and decree are passed by the both this Court on merits and taking into account the oral and documentary evidence produced by the plaintiffs, I do not find any infirmity in the impugned judgment and decree passed by the Courts below and the appeal fails. In view of the fact that the appellant has not made out a case for framing of substantial question of law to be considered under Section 100 of Code of Civil Procedure, the appeal stands dismissed at the Admission stage itself.

¶83

Sd/JUDGE

¶84

lnn

Gangappa v. Sri Mallappa

Case brief

What is this about?

What did the court decide?

Gangappa v. Sri Mallappa

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

A a Annegowda Vs Vinay. L.

Siddaiah Vs Nagaraji

Hanumantharayappa Vs Smt. Puttamma

Smt Uma Maheshwari Vs Smt Mohini Bai

M a Ponnappa Vs B M Ponnappa

Kariyappa Vs Vasantha