This Regular Second Appeal challenges a partition suit decree granting plaintiffs one-fifth share each in ancestral property. The High Court dismissed the appeal, following lower courts' findings regarding the nature of the property, noting the absence of a substantial question of law under Section 100 CPC.
Regular Second Appeal No.2488 of 2017 was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2488 OF 2017
BETWEEN:
Mr. N Narayanappa S/o late Narasimhappa Aged about 58 years R/at Madanahalli Village Kasaba Hobli Gowribidanur Taluk Gowribidanur District-561 210.
Now at
W/8, 158, Anjanadri Nilaya Abhilash Layout Gowribidanur Town-561 208.
…Appellant
(by Shri H R Narayana Rao, Advocate)
AND:
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All are R/at Madanahalli Village Kasaba Hobli Gowribidanur Taluk Gowribidanur District-561 210.
…Respondents
This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 22.08.2017 passed in RA.No.219 of 2015 on the file of the Senior Civil Judge and JMFC, Gowribidanur, dismissing the appeal and confirming the judgment and decree dated 16.04.2015 passed in OS.No.77 of 2012 on the file of the Principal Civil Judge and JMFC, Gowribidanur.
This Appeal coming on for admission, this day, the court delivered the following:
J U D G M E N T
This second appeal is filed by defendant No.1, challenging the judgment and decree dated 22nd August, 2017 passed in Regular Appeal No.219 of 2015 on the file of the Senior Civil Judge and JMFC at Gowribidanur, confirming the judgment and decree dated 16th April 2015 in O.S. No.77 of 2012 on the file of the Principal Civil Judge and JMFC, Gowribidanur, decreeing the suit of plaintiffs holding that the
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plaintiffs are entitled for one-fifth share each in the suit schedule property.
appeal are referred to with their status and rank before the trial Court.
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OS No.77 of 2012 on the file of the trial Court, seeking relief of partition with separate possession in respect of the suit schedule property.
appearance. Defendants 1 and 2 filed detailed written statement denying the averments made in the plaint. It is the defence of the defendant No.2 that, the mother of plaintiffsSanjeevamma has filed MC No.1 of 2005 seeking relief of divorce and in the said matrimonial case, compromise was entered into between the mother of the plaintiffs and the defendant No.1 and thereafter, the defendant No.1 got married the defendant No.2-Smt. Gangarathnamma. It is further stated in the written statement that the mother of plaintiffs had filed suit in O.S. No.170 of 2004 against the defendant No.1 and the said suit came to be disposed of in terms of the memo dated 25th March, 2006. It is further stated in the written statement that since the mother of plaintiffs-Smt. Sanjeevamma got properties from defendant No.1 and therefore, the children of the defendant No.1 are not entitled for any share insofar as the schedule property belonging to the defendant No.1. The trial Court, based on
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the pleadings on record, formulated following issues for its consideration:
2. Whether the plaintiffs prove that, the defendants denied their lawful share in the suit schedule properties?
3. Whether the defendants No.1 and 2 prove that, first defendant had two wives the mother of the plaintiff by name Sanjeevamma the first wife has obtained divorce and subsequently got married with second defendant and thereby proves the averments in para No.7 and 8 of their written statement?
4. Whether the defendants No.1 and 2 prove that, the plaintiffs have no any right, title or interest in respect of the suit schedule properties vide the averments made under the true facts?
5. Whether the plaintiffs are entitled for the 1/5th share in the suit schedule properties?
6. What Order or Decree?”
plaintiffs have examined two more witnesses as PWs.2 and 3
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and produced seven documents and same were marked as Exhibits P1 to P7. Defendant No.1 was examined as DW1 and got examined two more witnesses as DWs.2 and 3 and produced 15 documents and same were marked as Exhibits D1 to D15. The trial Court, after considering the material on record, by its judgment and decree dated 16th April, 2015 decreed the suit and held that the plaintiffs are entitled for one-fifth share each in the suit schedule property. Being aggrieved by the judgment and decree passed by the trial Court, defendant No.1 has preferred Regular Appeal No.219 of 2015 on the file of the Senior Civil Judge, Gowribidanur. The said appeal was resisted by the plaintiffs. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 22nd August, 2017 dismissed the appeal preferred by the defendant No.1 and as such confirmed the judgment and decree dated 16th April, 2015 passed in O.S. No.77 of 2012. Being aggrieved by the judgments and decree passed by courts below, the defendant No.1 has preferred this second appeal.
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submission of Shri Narayan Rao, that the mother of plaintiffs has filed MC No.11 of 2005 seeking relief of divorce and same had ended with compromise on 07th April, 2006. He further contended that certain benefits have been given to the mother of plaintiffs in the matrimonial case, as per the compromise entered into between the mother of the plaintiffs and the defendant No.1. He further contended that the mother of plaintiffs has also filed O.S. No.170 of 2004 against the defendant No.1, seeking relief of partition and separate possession in respect of certain items of property and the said suit came to be disposed of before the Lok Adalat on 07th April, 2006, as per the memo dated 15th March, 2006 and therefore, the plaintiffs are not entitled for any share in the property of defendant No.1. In that view of the matter, he further contended that both the courts below have not properly appreciated the documents produced by the defendant No.1 to establish his rights in the suit schedule property. He further contended that, in view of the settlement arrived at between the parties in MC No.11 of 2005 and O.S. No.170 of 2004, the present suit in O.S. No.77
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of 2012 itself is not maintainable and therefore, the finding
recorded by both the courts below are liable to be set aside.
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had ended up between the mother of the plaintiffs and defendant No.1 insofar as relief of divorce is concerned and therefore, the trial Court has come to a conclusion that since the property is ancestral property of defendant No.1 and thereby, plaintiffs are also entitled for their legitimate share in the suit schedule property. I have also considered the finding recorded by the trial Court at paragraph 30 of the judgment wherein it was admitted by the parties before the trial Court that both the properties stood in the name of defendant No.1 and also it was admitted by the parties that in connection with the said compromise, the defendant No.2 had given the said properties to mother of the plaintiffs. However, plaintiffs herein are not parties to the suit as well as the matrimonial case between the defendant No.1 and the mother of the plaintiff and as such, the trial Court rightly appreciated the material on record and held that plaintiffs are entitled for onefifth share in the suit schedule property. I have also gone through the finding recorded by the First Appellate Court wherein the First Appellate Court having re-appreciated the material on record and the documents produced by the parties, at paragraph 27 of its judgment held that the decree
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passed in O.S. No. 77 of 2012 is only to an extent of 23 guntas in item No.1 and as regards item No.2 of the vacant site property and the trial Court has not specified anything in Final Decree Proceedings and the preliminary judgment and decree in OS No.391 of 2008, and accordingly, dismissed the appeal preferred by the defendant No.1.
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:
“13. Based upon oral and documentary evidences, the courts below have recorded concurrent
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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. …
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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 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.”
NARAYANAPPA AND OTHERS reported in (2019) 6 SCC 409,
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at paragraphs 7.2 and 7.3 of the judgment, the Hon’ble
Supreme Court has observed thus:
“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:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on inadmissible evidence or no evidence.
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.
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,
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(2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:
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.
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.
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.
13. In either of the above situations, a substantial question of law can arise.”
“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
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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.
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 Court, unless it finds that the conclusions drawn by the lower Court were erroneous….
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8.5 As observed hereinabove, while passing the impugned Judgment and Order, the High Court has re-appreciated 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
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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 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.”
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Sd/JUDGE
lnn
3 issues framed by the court
Whether the appeal under Section 100 CPC is maintainable against the concurrent findings on facts regarding ancestral property shares?
Whether the appellate courts erred in rejecting the claim that a compromise settlement barred the plaintiffs' right to the ancestral property?
Whether the Second Appeal raises any substantial question of law warranting interference with the findings of the courts below?
Colour shows how this judgement treated each authority
LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERSRelied on¶60
(2015)4 SCC 264 · Who else cites this
THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERSRelied on¶66
(2019) 6 SCC 409 · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarExplained¶69
(1999) 3 SCC 722 · Who else cites this
Ishwar Dass Jain v. Sohan LalExplained¶69
(2000) 1 SCC 434 · Who else cites this
S. SUBRAMANIAN v S RAMASAMY ETC.Relied on¶85
AIR 2019 SCC 3056 · Who else cites this
1 provisions across 1 enactments
Mr. N Narayanappa
Aruna
Aparna
Smt. Gangarathnamma
Ranjitha
Monisha
E.S. INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
