Partly allowed

Narasappa v. Hanumantharayappa

Karnataka HC30 Aug 2024RSA/1840/2016

Case brief

AI extract

What is this about?

Partition suit decreed by trial court giving plaintiffs 1/9th share each. Only purchasers of suit item no.3 appealed; the first appellate court nonetheless dismissed the entire suit. The High Court held this impermissible, partly allowed the second appeal, confirmed the decree for other items, and remitted consideration of item no.3 to the first appellate court.

What did the court decide?

Second appeal partly allowed; matter remitted to First Appellate Court for reconsideration limited to suit item no.3; rest of trial court decree confirmed.

Narasappa Vs Hanumantharayappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.1840 OF 2016 (PAR)

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BETWEEN:

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NARASAPPA 39 YEARS, S/O. HANUMANTHARAYAPPA, R/AT NEERAKAL VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT – 572 132.

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SHANTHAMMA 37 YEARS, D/O HANUMANTHARAYAPPA, R/AT GABHUVANAHALLI, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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NARAYANAPPA

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39 YEARS, S/O. HANUMANTARAYAPPA, R/AT NEERAKAL VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT – 572 132.

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... APPELLANTS

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(BY SRI CHANDRAIAH, ADVOCATE)

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AND:

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HANUMANTHARAYAPPA S/O. LATE NARASAPPA DEAD BY LR’s.

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2 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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1(a) MAHALAKSHMAMMA, 45 YEARS, D/O. NARASAPPA, HANUMANAHALLI, HOLAVANAHALLI HOBLI, KORATAGERE TALUK. PIN.572 121.

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1(b) SANNAMMA, 60 YEARS, W/O. HANUMANTHRAYAPPA, CHANNAMALLENAHALLI, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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1(c) JAYAMMA, 56 YEARS, W/O. SHIVALINGAPPA, BADAKANAHALLI, PURAVARA HOBLI,

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MADHUGIRI TALUK – 572 175.

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1(d) HANUMAKKA, 60 YEARS, W/O. LATE HANUMANTHRAYAPPA, R/AT NEEERKAL VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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SIDDAGANGAMMA, 50 YEARS, W/O. LATE RAMANNA, AGRICULTURIST, R/AT NEERKAL VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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SANNAPPA, 40 YEARS, S/O. HANUMANTHRAYAPPA, AGRICULTURIST, R/AT NEERKAL VILLAGE,

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3 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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THIPPECHITHAIAH 63 YEARS, S/O. CHIGUVANNA, AGRICULTURIST, R/AT NEERKAL VILLAGE, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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SANNAMMA 48 YEARS, W/O. CHITHANNA, R/AT NEERKALGOLLARAHATTI, MIDIGESHI HOBLI, MADHUGIRI TALUK – 572 132.

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... RESPONDENTS

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(BY SRI NAGARAJA S., ADVOCATE FOR R-4 & R-5; R-1(b) – SERVED, R-1(c) – SERVED, R-1(d) – SERVED; V/O. DATED 08/02/2019 NOTICE TO R-3 – SANNAPPA HELD SUFFICIENT; V/O. DATED 25/01/2021 NOTICE TO R-1(a) & R-2 ARE HELD SUFFICIENT)

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THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 AND 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.04.2016 PASSED IN R.A.NO.5033/2016 (OLD R.A.97/2007) ON THE FILE OF IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.04.2007 PASSED IN O.S.NO.112/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DVN.) MADHUGIRI.

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4 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Assailing the judgment and decree in R.A.No.5033/2016 (old R.A.No.97/2007) dated 12.4.2016

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on the file of the IV Additional District and Sessions Judge at Madhugiri (hereinafter referred to as "First Appellate Court" for brevity) reversing the judgment and decree in O.S.112/1998 dated 3.4.2007 on the file of the Principal Civil Judge (Jr.Dn.), Madhugiri (hereinafter referred to as "Trial Court" for brevity) by dismissing the suit of the plaintiffs in entirety.

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Parties herein are referred to as per their rank before the trial Court for the sake of convenience.

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This Court while admitting the appeal on 4.3.2022 framed the following substantial questions of law :-

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"i. Whether the First Appellate Court committed an error in reversing the judgment and decree of the Trial Court on the ground that the suit is filed for

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5 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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partition through the Trial Court had dealt with the same in Issue No.6?

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ii) Whether the First Appellate Court could have directed the property bearing Sy.No.6/6 to be included in the suit for partition?"

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During the course of arguments, the following additional substantial question of law is framed by this Court :

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'Whether the First Appellate Court was justified in reversing the judgment and decree of the Trial Court and dismissing the suit of the plaintiffs in its entirety, when the appeal was preferred by defendants no.4 and 5, the purchasers of suit item no.3, and no appeal was preferred by other defendants challenging the judgment and decree of the Trial Court?'

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Learned counsel on both sides have been heard on

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the substantial question of law framed by this Court on 4.3.2022 and the additional substantial question of law framed by this Court on 30.8.2024.

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Before giving any findings on the substantial question

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of law framed by this Court on 04.03.2022, the additional

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6 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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substantial question of law framed by this Court on 30.08.2024 is considered.

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Suit of plaintiffs is for partition and separate possession seeking 1/9^th share in the suit item Nos.1 to 10

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of the suit schedule property. The family pedigree is as

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under :

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Hanumantharayappa s/o. late Narasappa (Deft.1- dead, had two marriages

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Lakshmamma 1^st wife Hanumakka-2^nd wife died about 25y prior to the date of suit (LR - Deft.1d) (5 issues) (3 issues)

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1. Mahalakshmamma (Deft.1a) 1. Narasappa - (pltf.1) 2. Ramanna dead by LRs 2. Shanthamma (pltf.2) Siddagangamma (wife-Deft.2) 3. Narayanappa (pltf.3) Sannappa (son) Nagalakshmi (daughter)

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Sannamma (Deft.1b)

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Sonnappa (Deft.3)

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Jayamma (Deft.1c)

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Plaintiffs are children of defendant No.1 through his

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second wife and defendants no.2 and 3 born to defendant

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No.1 through his first wife. Defendant no.4 and 5 are the purchasers of suit item no.3. The plaintiffs averred that,

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the plaintiffs and the defendants are the members of the joint family and the suit properties are the joint family properties.

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On notice, defendant no.1 filed written statement which was adopted by defendant no.3. Defendant no.2 appeared but did not file any written statement. Defendants no.4 and 5-purchasers of item no.3 of the suit schedule property were impleaded during the pendency of the suit.

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Defendant no.1 denied the plaint averments and contended that the plaintiffs and defendants do not constitute joint family and the plaintiffs are not entitled for half share in the suit schedule property.

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Defendant Nos.4 and 5 contended that they are bonafide purchasers of item No.3 of the suit schedule property. During the pendency of the suit, defendant no.1 died and his LRs i.e., defendant no.1(a to d) were brought on record.

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The Trial Court framed the following issues for consideration :

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" 1. Whether the plaintiffs prove that item nos.3,4,9 and 10 are joint family properties amongst others ?

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Whether the defendants prove that items no.3,4,9 and 10 are self acquired properties of the 1^st defendant ?

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2. Whether the plaintiffs prove that item nos.3,5

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and 7 are joint family properties ?

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3. Whether the defendants proves that item nos.1,2,6 and 8 are the only joint family properties ?

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4. Whether the plaintiffs prove that they are entitled for half share in the suit schedule properties?

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5. Whether the suit is bad for non-joinder of necessary parties as alleged in para.6 of the written statement ?

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6. Whether the suit is bad for non-inclusion of the other family properties?

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7. To what shares and extent the plaintiffs/parties are entitled?

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8. What decree or order ?

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In order to prove their case, plaintiffs examined plaintiff no.3 as P.W.1 and got marked the 8 documents as

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9 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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Exhibits P.1 to P.8. On the other hand, defendant no.3 examined himself as DW.1, defendant no.4 examined himself as DW.2 and examined three witnesses as DWs.3 to 5 and marked 11 documents as Exhibits D.1 to D.11.

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The Trial Court on the basis of pleadings, oral and documentary evidence, arrived at a conclusion that :

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Plaintiffs have proved that item nos.3, 4, 9 and 10 are the joint family properties;

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Item nos.5 and 7, the plaintiffs have given up their right;

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Defendants have failed to prove that item nos.1, 2, 6 and 8 are the only joint family properties;

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And by judgment and decree, the Trial Court decreed the suit in entirety, holding that the plaintiffs are entitled for partition and separate possession of 1/9^th share each in all the suit properties except suit item nos.5 and 7(which is given up by the plaintiffs).

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Aggrieved, the purchasers of item No.3 of the suit schedule property, i.e., defendants no.4 and 5 preferred

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10 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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appeal before First Appellate Court against the judgment and decree of the Trial Court. No appeal was preferred by the other defendants or the legal heirs of defendant no.1, the First Appellate Court allowed the appeal and dismissed the suit of the plaintiffs.

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Re: Additional Substantial question of law:

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The First Appellate Court, while reconsidering the entire oral and documentary evidence, overlooking the fact

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that appeal was preferred only by the purchasers in respect of suit item no.3, has allowed the appeal and dismissed the suit of the plaintiffs in entirety.

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The First Appellate Court has failed to exercise the appeal powers which is vested upon the Appellate Court under Order XLI Rule 31 CPC and the First Appellate Court being the last fact finding Court ought to have rightly reappreciated and reconsidered the entire oral and documentary evidence which falls for consideration before it. The First Appellate Court has failed to consider that the appeal has been preferred by defendants no.4 and 5-the

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purchasers in respect of item no.3 and they could not have challenged the entire judgment and decree of the Trial

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Court. Even assuming that defendants no.4 and 5 have challenged the entire judgment and decree of the Trial Court, the First Appellate Court being the last fact finding court ought to have considered the appeal to the extent of item no.3 only with regard to the purchase made by defendants no.4 and 5, in the absence of the same, the First Appellate Court has failed in its duty and committed an error in dismissing the suit of the plaintiffs in entirety.

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The First Appellate Court, while reversing the finding of fact, must come into the close quarters with the reasoning assigned by the trial Court and then assign its own reason for arriving at a different finding. This would satisfy the Court hearing the further appeal that the First Appellate Court had discharged the duty cast on it. The Apex Court in the case of Santosh Hazari vs.

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NC: 2024:KHC:35416 RSA No. 1840 of 2016

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Purushottam Tiwari (Deceased by Lrs.)¹ at paragraph

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No.15 held as under:

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“15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.

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1 (2001) 3 SCC 179

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The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124]). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is

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NC: 2024:KHC:35416 RSA No. 1840 of 2016

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entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh [AIR 1951 SC 120]) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in

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second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one. ”

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Accordingly, for the foregoing reasons, the additional

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substantial question of law framed by this Court is answered in the affirmative in favour of the appellants and the matter needs to be remitted back to the First Appellate

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Court for re-consideration, in light of answering the additional substantial question of law in favour of the appellants, the other substantial questions of law would fall for consideration before the First Appellate Court and this Court is of the considered view that the matter needs to be remitted back to the First Appellate Court to reconsider and pass appropriate orders in respect of item no.3 of the suit schedule property. The judgment and decree of the Trial Court in respect of other suit properties

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16 - NC: 2024:KHC:35416 RSA No. 1840 of 2016

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(except item Nos.5 and 7) is confirmed by this Court, as the judgment and decree of the Trial Court has attained finality and there is no challenge by the other defendants before the first appellate Court and accordingly, this Court pass the following :

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ORDER

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i) Regular Second Appeal is hereby

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allowed in part;

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ii) Matter is remitted back to the First Appellate Court to reconsider the claim in respect of item no.3 of the suit schedule property;

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iii) Rest of the portion of judgment and decree passed by the Trial Court stands confirmed and adjudication by the First Appellate Court is only to the extent of item no.3.

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iv) All contentions of defendants no.4 and 5 and the plaintiffs are kept open to be urged before the First Appellate Court;

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NC: 2024:KHC:35416 RSA No. 1840 of 2016

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v) Parties to appear before the First

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Appellate Court on 18.9.2024.

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Sd/(K.S. HEMALEKHA) JUDGE

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List No.: 1 Sl No.: 28

Narasappa v. Hanumantharayappa

Case brief

What is this about?

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Narasappa v. Hanumantharayappa

Case brief

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