Dismissed

Sri Ramegowda v. Smt Sakamma

Karnataka HC23 Aug 2021RSA/403/2006

Case brief

AI extract

What is this about?

The High Court dismissed two regular second appeals filed by legal representatives of heirs and a defendant challenging findings on property partition. The Court affirmed the First Appellate Court's order, holding that concurrent findings on evidence and palupatti did not warrant interference under Section 100 CPC. Parties were directed to continue final decree proceedings.

What did the court decide?

The appeals were dismissed. The impugned judgments and decrees of the Sessions Judge and Civil Court were confirmed. Parties were directed to work out remedies in Final Decree Proceedings No.4 of 2006

Sri Ramegowda Vs Smt Sakamma — Partition | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 23^RD DAY OF AUGUST, 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE E.S. INDIRESH

¶5

REGULAR SECOND APPEAL NO.403 OF 2006

¶6

c/w

¶7

REGULAR SECOND APPEAL NO.825 OF 2015

¶8

In RSA NO.403 of 2006

¶9

BETWEEN:

¶10

Sri Rame Gowda S/o Puttankaiah Aged about 32 years Adopted son of Smt. Ningamma R/at Kananuru village Honakere Hobli Nagamangala Taluk Mandya District-571 401.

¶11

Sri Puttankaiah Since deceased by his LRs

¶12

2a. Smt. Puttamma Aged about 72 years

¶13

W/o late Puttankaiah

¶14

2b. Sri Krishnamurthy Aged about 52 years s/o late Puttankaiah

¶15

2c. Sri Somashekar Aged about 40 years s/o late Puttankaiah

¶16

¶17

All are r/at Konanuru Village Honakere Hobli Nagamangala Taluk Mandya District.

¶18

2d. Smt. Padma Aged about 50 years D/o late Puttankaiah W/o Krishnegowda R/at Bachikoppalu Bhramadevarahalli Post Honnakere Hobli Nagamangala Taluk Mandya District. 2e. Smt. Latha Aged about 31 years D/o late Puttankaiah W/o late Javeregowda R/at No.26, 2^nd Floor 2^nd Main Road Manjunathanagar Bengaluru-560 085. …Appellants

¶19

(by Sri Shankaranarayana Bhat, Advocate)

¶20

AND:

¶21

Smt. Sakamma Since deceased, represented by her LRs. R2 and 3 2. Smt. Putta Ankamma Since deceased, represented by her LRs 2a. Sri Raju R Aged about 72 years S/o late Rangegowda

¶22

¶23

2b. Sri R Shiva

¶24

Aged about 48 years

¶25

S/o late Rangegowda

¶26

2c. Sri R Krishna

¶27

Aged about 40 years S/o Sri Raju

¶28

2d. Sri R Manjunatha Aged about 38 years S/o Sri Raju

¶29

All are residing at No.38 6^th Cross, I Main Road Byreshwaranagar, Laggere Bengaluru-560 058.

¶30

Smt. Jayamma D/o Nangegowda @ Karigowda Aged about 28 years R/at Konanuru village Honnakere Hobli Nagamangala Taluk Mandya District.

¶31

…Respondents

¶32

(by Sri B Keshava Murthy, Advocate for R2(a) to (d) and Sri S Shankarachar, Advocate for R3; R1 dead, R2 and 3 are treated as LRS of deceased R1)

¶33

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 24.10.2005 passed in Regular Appeal No.150 of 2005 on the file of the Sessions Judge, Fast Track Court-IV, Mandya, partly allowing the appeal and setting aside the judgment and decree dated 18.12.1999 passed in OS.No.80 of 79 on the file of the Civil Judge (Jr. Dn) and JMFC, Nagamangala.

¶34

¶35

In RSA NO.825 of 2015

¶36

BETWEEN:

¶37

Smt. Puttankamma Since deceased by represented by her LRs.

¶38

1a. Sri Raju R

¶39

S/o Mr. Rangegowda

¶40

Aged about 72 years

¶41

1b. Mr. R Shiva

¶42

S/o Mr. Raju

¶43

Aged about 48 years

¶44

1c. Mr R Krishna

¶45

S/o Mr. Raju

¶46

Aged about 40 years

¶47

1d. Mr. R Manjunatha S/o Mr. Raju

¶48

Aged about 38 years

¶49

All are R/at No.38, 6^th Cross I Main Road, Byraveshwaranagar Laggere Bengaluru-560 058.

¶50

Smt. Jayamma W/o Mr. Marigowda D/o Nanjegowda @ Karigowda Aged about 53 years R/at Konanur Village Honakere Hobli Nagamangala Taluk-571 432.

¶51

…Appellants

¶52

(by Sri B Keshava Murthy, Advocate)

¶53

AND:

¶54

¶55

Mr. Ramegowda S/o Mr. Puttankaiah Aged about 43 years R/at Konanur Village Honakere Hobli Nagamangala Taluk-571 432.

¶56

…Respondent

¶57

(Service of notice to Respondent is held sufficient)

¶58

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 12.03.2015 passed in Regular Appeal No.19 of 2004 on the file of the Senior Civil Judge and JMFC, Nagamangala, dismissing the appeal and confirming the judgment and decree dated 30.06.2014 passed in OS.No.113 of 2008 on the file of the Civil Judge, JMFC, Nagamangala.

¶59

These Appeals coming on for further hearing, this day, the Court delivered the following:

¶60

J U D G M E N T

¶61

Regular Second Appeal No.403 of 2006 is preferred by the legal representatives of the defendant No.2, challenging the judgment and decree dated 24^th October, 2005 passed in Regular Appeal No.150 of 2005 on the file of the Sessions Judge, Fast Track Court-IV, Mandya partly allowing the appeal and setting the aside judgment and decree dated 18^th December, 1999 passed in OS No.80 of 1979 on the file of the Civil Judge (Jr.Dn.) and JMFC, Nagamangala.

¶62

¶63

Regular Second Appeal 825 of 2015 is filed by plaintiffs 2 and 3 against the judgment and decree dated 12^th March, 2015 passed in Regular Appeal No.19 of 2014 on the file of the Senior Civil Judge and JMFC, Nagamangala confirming the judgment and decree dated 30^th June, 2014 passed in OS No.113 of 2008 on the file of the Civil Judge and JMFC, Nagamangala.

¶64

For the sake of convenience, parties in these appeals are referred to with their status and rank before the trial Court in OS No.80 of 1979, since the plaintiffs in OS No.113 of 2008 are the plaintiffs in OS No.80 of 1979 and sole defendant in OS No.113 of 2008 is defendant No.2(1) in OS No.80 of 1979.

¶65

It is the case of plaintiffs that defendant No.1Ankegowda @ Seeregowda and the husband of the plaintiff No.1 and the father of plaintiffs 2 and 3 are the sons of one Hedagegowda. Hedagegowda died long back leaving behind the first defendant and the husband of the plaintiff No.1. It is the case of plaintiffs that Nanjegowda had two wives viz. Sakamma (plaintiff No.1) and Ningamma (defendant No.2). Husband of the plaintiff No.1-Nanjegwoda, died about fifteen years back and the suit schedule properties, by virtue of partition in the family,

¶66

¶67

fell to the share of plaintiffs. It is the case of the plaintiff that, plaintiffs are in the joint possession and enjoyment of the suit schedule property and defendants have no right or title in respect of the suit schedule property. It is further averred in the plaint that defendant No.2 had taken the son of the defendant No.3 in adoption and all the three defendants joined together with ulterior motive and influencing plaintiffs to part with the suit schedule property and accordingly, interfered with the peaceful possession and enjoyment of the suit schedule property. Hence, plaintiffs filed OS No.80 of 1979 on the file of the trial Court seeking relief of declaration and injunction.

¶68

On service of notice, defendants 1 and 3 entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case defendants 1 and 3 that the plaintiff No.1 is not the wife of late Nanjegowda and as such, disputed the relationship with the said Nanjegowda. These defendants disputed the averments made by the plaintiffs with regard to occurrence of the partition in their family. It is the case of defendants 1 and 3 that plaintiffs are not in possession of the suit schedule property and suit items 3, 5, 6, 9 and 13 are the properties that fell to the share of defendant No.1 at the

¶69

¶70

partition and therefore, the defendants are in possession and enjoyment of the suit schedule property. It is also the case of defendants that the defendants have not requested the plaintiffs to part with the suit schedule property and accordingly, sought for dismissal of the suit. Defendant No.2 filed separate written statement and admitted that the son of the defendant No.3Ramegowda was given in adoption to defendant No.2. It is further contended that after adoption, the defendant No.2 is in exclusive possession of all the items inherited, except items 2, 11, 12 and 14 which are in the possession and management of defendant No.2. Legal representatives of the defendants have also filed additional written statement denying the averments made in the plaint. The trial Court, after considering the pleadings on record, formulated the following issues for its consideration:

¶71

“ 1) Whether the suit properties item 1 to 26 had fallen to the share of Nanjegowda @ Karigowda in a division between himself and defendant-1 Ankegowda?

¶72

2. If no, What are the properties in the suit items that had fallen to the share of Nanjegowda @ Karigowda?

¶73

¶74

3. Whether the plaintiffs prove that the suit properties are in their lawful exclusive possession as on the date of the suit?

¶75

4. Whether the plaintiffs prove that the suit properties are in their lawful exclusive possession as on the date of the suit?

¶76

5. Whether the plaintiffs prove the unlawful interference with the possession of the plaintiffs by the defendants?

¶77

Alternatively if the plaintiffs prove that they are entitled to recover the suit properties? ”

¶78

Plaintiff No.1 was examined as PW4 and examined three

¶79

more witnesses as PWs.1 to 3 and produced 31 documents and same were marked as Exhibits P1 to P31. Defendant No.2 was examined as DW2 and her adopted son-Ramegowda was examined as DW3 and got examined another witness as DW1 and produced 34 documents and same were marked as Exhibits D1 to D34. The trial Court, after considering the material on record, by its judgment and decree dated 18^th December, 1999 dismissed the suit and being aggrieved by the same, the plaintiffs preferred Regular Appeal No.150 of 2005 on the file of the First Appellate Court and same was resisted by the defendants. The First Appellate Court, after re-appreciating the

¶80

¶81

material on record, decreed the suit in part holding that the plaintiffs were entitled for three-fourth share in properties in items 1, 2, 11, 12, 14 to 19 and 24 as shown in the schedule and being aggrieved by the judgment and decree passed by the First Appellate Court, defendants are before this Court in these second appeals.

¶82

This court, by order dated 07^th September, 2009 formulated the following substantial question of law:

¶83

“Whether the Judgment and Decree of First Appellate Court in reversing the Judgment and Decree of the Trial Court is perverse and arbitrary in as much as not considering oral and documentary evidence based on which the suit of the plaintiff was dismissed?”

¶84

I have noticed that the appellant in Regular Second Appeal 825 of 2015 is defendant No.2 in OS No.80 of 1979 and therefore, the common issues raised before both the courts below is with regard to division of property between plaintiffs and defendants of late Hedagegowda (original propositus) and therefore, the substantial question of law required to be answered in Regular Second Appeal No.825 of 2015, is as follows:

¶85

¶86

“Whether the judgment and decree passed by

¶87

the courts below requires interference under 100 of Code of Civil Procedure?”

¶88

I have heard Sri Shankaranayarana Bhat, learned

¶89

counsel appearing for the appellants and Sri B. Keshavamurthy, learned counsel appearing for the respondents.

¶90

Sri Shankaranarayana Bhat, learned counsel appearing for the appellants contended that the finding recorded by the court below that there was no partition between the defendant No.1 and the husband of the plaintiff No.1 is not correct. He further contended that the finding recorded by the trial Court granting share to the branches of Sakamma (plaintiff No.1) is without any basis, and the finding recorded by the First Appellate Court granting three-fourth share to the respondents without considering the right of defendant No.2, is also without any basis. He further contended that the appellant was given in adoption by the defendant No.3 to defendant No.2 and as such, he is entitled for share in the properties of late Nanjegowda and therefore, he contended that the impugned judgment and decree passed by the First Appellate Court is without any basis and requires interference.

¶91

¶92

Per contra, Sri B. Keshavamurthy, learned counsel appearing for respondent in Regular Second Appeal 403 of 2006 and appellant in Regular Second Appeal 825 of 2015 contended that the finding recorded by the First Appellate Court in dismissing the appeal in Regular Appeal No.19 of 2014 as also dismissing the judgment and decree in OS No.113 of 2008, is contrary to law. He contended that the finding recorded by the First Appellate Court that the plaintiffs have to work out their remedies to seek partition in the suit schedule property in Regular Second Appeal No.403 of 2006 or in Final Decree Proceedings in 4 of 2006 before the competent court, is factually incorrect as it is not in dispute that the suit schedule property is the ancestral property of the appellants and respondents, inter alia, the defendants have not adduced any evidence before the Court with regard to division of properties by metes and bounds. Therefore, he contended that, the finding recorded by the First Appellate Court requires interference in these appeals.

¶93

Having heard the learned counsel appearing for the parties, I have perused the original records and examined the findings recorded by the courts below. The plaintiff No.1 is the wife of Nanjegowda. Plaintiffs 2 and 3 are the children of

¶94

¶95

plaintiff No.1 and Nanjegowda. Nanjegowda and Ankegowda (defendant No.1) are brothers. Defendant No.3 is the son of defendant No.1. Defendant No.2 claims to be the second wife of Nanjegowda and she adopted the son of defendant No.3Ramegowda, who is the sole respondent in Regular Second Appeal 825 of 2015. It is not in dispute that the schedule properties are the ancestral properties of defendant No.1 and late Nanjegowda. Plaintiffs have filed suit, seeking partition and separate possession in respect of the ancestral properties against the defendants, stating that there was severance of joint family between defendant No.1 and late Nanjegowda. It is the case of the defendants that there was a partition in the family and suit items No.3, 5, 6, 9 and 10 are the properties fallen to the share of defendant No.1 and item No.8 in Survey No.69/16 does not belong to defendant. It is the case of the defendant that all other properties were acquired by deceased-Karigowda in the partition which were inherited by defendant No.2 as his heir. The trial Court, after considering the material on record by its judgment and decree dated 18^th December, 1999, dismissed the suit and being aggrieved by the same, plaintiffs have preferred Regular Appeal No.108 of 1985 before the First Appellate Court

¶96

¶97

which came to be allowed by remanding the matter to the trial Court for fresh consideration. In Regular Appeal No.108 of 1985, First Appellate Court observed as follows.

¶98

“17. It is not possible to sustain the other finding of the trial court. In the result I would allow the appeal by consent of parties, set aside the judgment and decree passed by the court below in OS.No.80/79 dated 29.08.85. I direct the trial court to frame the aforesaid issues suggested above and afford sufficient opportunity to both the parties to adduce further evidence on the said issues and proceed to determine the suit. The evidence already recorded during the trial shall be evidence after remand. The trial court has to bear in mind that the relationship between the plaintiffs and defendant-2 and Nanjegowda @ Karigowda need not be give into again as that finding recorded is sustained and the parties have agreed not to disturb that finding and concede the relationship.”

¶99

Perusal of the finding recorded by he First Appellate Court in Regular Appeal No.108 of 1985 would indicate that, though the plaintiffs questioned the relationship of defendant No.2 with Nanjegowda, however, same was settled by the parties not to disturb the finding with regard to relationship. After remand, the trial Court framed new issues for adjudication

¶100

¶101

of the suit and dismissed the suit on 25^th November, 1994. Being aggrieved by the same, plaintiffs have preferred Regular Appeal No.8 of 1995 before the First Appellate Court. The First Appellate Court, by its judgment and decree dated 13^th August, 1998, observed as follows:

¶102

“ That the partition took place about 10 years prior to the suit. Therefore, the plaintiffs may not have been able to prove the partition to the satisfaction of the court. Therefore it is not as if the plaintiffs have no right in respect of the suit property. Patently the verdict of the court of the first instance cannot sustain for the reason that the plaintiffs too are legal heirs of deceased Nanjegowda and they also possess their own right in respect of properties allotted to the share of Nanjegowda alias Karigowda, no matter the partition referred to in the plaint is not proved. The operative portion of the judgment passed by the appellate court in Regular Appeal No.8/95 dated 13.08.1998 reads thus:-

¶103

“In the result, the appeal is allowed. The findings of the trial court are set aside on all issues. The plaintiffs-appellants Advocate is permitted to effect the amendment after depositing the cost of Rs.300/- within two weeks. The adopted son of the second

¶104

¶105

defendant is ordered to impleaded as legal heir of the second defendant. The case is now remanded back to the court of first instance original number in the register of civil suits and to proceed to determine the suit in accordance with law. Parties are directed to appear before the court of first instance on 15/9/98 to take further instructions. ”

¶106

For the second time, the First Appellate Court remanded the matter to the trial Court for fresh consideration in accordance with law. In the meanwhile, the respondent in Regular Second Appeal 825 of 2015-Ramegowda, was brought on record as legal representative of deceased-Ningamma (defendant No.2). On remand, the parties agreed that there was a partition in the family between Nanjegwoda and Karigowda as per the palupatti dated 30^th May, 1954 and the plaintiffs have stated that the entire properties had fallen to the share of late Nanjegowda. The trial Court, by impugned judgment and decree, held that plaintiffs are the wife and children of deceased Nanjegowda and the properties allotted as per the palupatti dated 30^th May, 1954 (Exhibit D1), items No.1, 2, 11, 12, 14 to 19 and 24 are the joint family properties of plaintiffs and the defendant No.2 after the death of Nanjegowda and as such, the

¶107

¶108

palupatti dated 30^th May, 1954 (Exhibit D1) was admitted by both the parties. At this juncture, it is relevant to mention that the defendants have admitted in their written statement that items No.1, 2, 11, 12, 14 to 19 and 24 of the schedule property fallen to the share of deceased Nanjegwoda in terms of palupatti dated 30^th May, 1954. However, the trial Court dismissed the suit. The First Appellate Court, after examining the earlier observations made in the Regular Appeal No.108 of 1985 and Regular Appeal No.8 of 1995, had come to the conclusion that the plaintiffs are entitled for partition and separate possession of their three-fourth share in items No.1, 2, 11, 12, 14 to 19 and 24 of the schedule property on the ground that the plaintiffs have been excluded from the enjoyment of the schedule properties, which were fallen to the share of late Nanjegowda. The said finding recorded by the First Appellate Court is just and proper. However, it is made clear that the plaintiff No.1Sakamma died on 14^th March, 2014, and Ningamma, claims to be the second wife of Nanjegowda and adopted Ramegowda and in that view of the matter, the share of late Nanjegowda requires to be divided among Puttankamma (plaintiff No.2), Jayamma (plaintiff No.3) and Ramegowda (defendant No.2). In view of

¶109

¶110

the fact that Final Decree Proceedings No.4 of 2006 is pending consideration before the court below and as such, I am of the considered opinion that the judgment and decree dated 24^th October, 2005 passed in Regular Appeal No.150 of 2005 passed by the First Appellate Court is just and proper and do not call for any interference by this court, consequently, judgment and decree passed by the First Appellate Court in Regular Appeal No.19 of 2014 is held to be valid and same gets culminated with Regular Appeal No.150 of 2005.

¶111

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:

¶112

“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. …

¶113

14 and 15. xxx xxx xxx

¶114

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

¶115

¶116

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. ”

¶117

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 Supreme Court has observed thus:

¶118

“ 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:

¶119

¶120

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

¶121

¶122

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

¶123

¶124

(iii) Based on inadmissible evidence or no evidence.

¶125

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.

¶126

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:

¶127

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.

¶128

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.

¶129

¶130

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.

¶131

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

¶132

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:

¶133

“ 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.

¶134

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

¶135

¶136

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….

¶137

8.3. and 8.4. xxx xxx xxx

¶138

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

¶139

¶140

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 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. ”

¶141

It is settled principle of law that even if two inferences

¶142

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:

¶143

“ 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

¶144

¶145

have been interfered within the second appeal. This Court held as under:

¶146

“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 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.

¶147

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

¶148

"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."

¶149

14. In Navaneethammal v. Arjuna Chetty (1996 6

¶150

SCC 166), this Court held :

¶151

"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."

¶152

¶153

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

¶154

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

¶155

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:

¶156

“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 opinion for the opinion of the first appellate court

¶157

¶158

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. ”

¶159

Having taken note of the law declared by the Hon’ble Apex Court and applying the said principle to the facts on hand, so also, considering the fact that the properties have been severed between late Nanjegowda and Ankegowda as per palupatti dated 30^th May, 1954 (Exhibit D1) and same is required to be devolved upon Puttankamma (plaintiff No.2); Jayamma (plaintiff No.30 and Ramegowda (defendant No.2), both the appeals are liable to be dismissed. The substantial questions of law framed in both these Regular Second Appeals favours the plaintiffs in OS No.80 of 1979. The parties are directed to work out their remedy in Final Decree Proceedings No.4 of 2006. Hence I pass the following:

¶160

O R D E R

¶161

Appeals stand dismissed;

¶162

Judgment and decree dated 24^th October, 2005 passed in Regular Appeal No.150 of 2005 by the

¶163

¶164

Sessions Judge Fast Track Court-IV, Mandya and judgment and decree dated 18^th December, 1999 in OS No.80 of 79 on the file of Civil Judge (Jr.Dn.), Nagamangala is confirmed.

¶165

Sd/JUDGE

¶166

lnn

Sri Ramegowda v. Smt Sakamma

Case brief

What is this about?

What did the court decide?

Sri Ramegowda v. Smt Sakamma

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

Sri T v Venkataravanappa Vs Smt Marakka

Laksmhamma @ Lakshmi Vs Channegowda

Sri Venkataramaiah Vs Smt Sunanda @ N Sunanda

Sri. Kenchappa Vs Sri. Shivananjegowda

Prabhu Vs Shivananjappa

Smt. P. Mallika Vs Sri. N.J. Ganesh