Allowed

Sannajunjaiah v. Basavaraju

Karnataka HC23 Sept 2024RSA/2081/2018

Case brief

AI extract

What is this about?

Appeal against an order allowing a partition appeal. Court held that the First Appellate Court erred in interfering with the Trial Court's finding on relationship without framing an issue, as required under Order 41 Rule 31 CPC, especially where facts and genealogical trees were disputed. Appeal allowed, Original suit remanded.

What did the court decide?

Regular Second Appeal allowed; impugned judgment and decree set aside; matter remanded to Trial Court with direction to frame issue relating to relationship between parties.

Sannajunjaiah Vs Basavaraju — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:39274 RSA No. 2081 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.2081 OF 2018 (PAR)

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BETWEEN:

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SANNAJUNJAIAH

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S/O LATE SANNEERAIAH, AGED ABOUT 68 YEARS,

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ERAIAH S/O LATE SANNERRAIAH, AGED ABOUT 65 YEARS,

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BOTH ARE RESIDING AT LAKKENAHALLI VILLAGE, KASABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-5722165.

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…APPELLANTS

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Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka

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(BY SRI. V.F. KUMBAR, ADVOCATE)

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AND:

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BASAVARAJU

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SINCE DEAD REPRESENTED BY HIS LEGAL HEIRS,

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SMT. MAHADEVAMMA,. W/O LATE BASAVARAJU, AGED ABOUT 63 YEARS,

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2 - NC: 2024:KHC:39274 RSA No. 2081 of 2018

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SRI. JUNJE GOWDA S/O LATE BASAVARAJU, AGED ABOUT 38 YEARS,

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SMT. SAVITHA D/O LATE BASAVARAJU, AGED ABOUT 24 YEARS,

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SMT. NALINA D/O LATE BASAVARAJU, AGED ABOUT 22 YEARS,

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ALL ARE RESIDENT OF LAKKENAHALLI GOLLARAHATTY, KASABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572216.

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…RESPONDENTS

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(BY SMT. JYOTHI S.K., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT & DECREE DATED 12.07.2018 PASSED IN R.A. NO. 63/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., GUBBI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 22.06.2016 PASSED IN OS.NO.24/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., GUBBI.

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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 MR. JUSTICE E.S.INDIRESH

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NC: 2024:KHC:39274 RSA No. 2081 of 2018

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ORAL JUDGMENT

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This appeal is preferred by the plaintiffs challenging the judgment and decree dated 12.07.2018 in R.A.No.63/2016 on the file of the Additional Senior Civil Judge, Gubbi, allowing the appeal and setting aside the judgment and decree dated 22.06.2016 in O.S.No.24/2001 on the file of the Prl. Civil Judge and JMFC, Gubbi, decreeing the suit of the plaintiffs.

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For the sake of convenience, parties referred to as per their ranking before the Trial Court.

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It is the case of the plaintiffs that, the original propositus late Ganeeraiah had two children viz., Junjaiah and Sanneeraiah. Junjaiah had a son by the name Junjaiah and the said Junjaiah had a son by the name of Basavaraju (husband of defendant No.1(a)). The second son of Ganeeraiah-Sanneeraiah had two wives viz., Chikkamma and Ramakka. Defendant No.2 is the son of Sanneeraiah through his first wife-Chikkamma. The

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plaintiffs are the children of Sanneeraiah through his second wife-Ramakka.

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It is the case of the plaintiffs that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants, and defendant No.1 without the consent of plaintiffs, colluded with the Revenue Officers and got khata and pahani changed into his name and thereafter, the plaintiffs made a claim in respect of their share in the suit schedule properties, however, defendants have refused to partition the properties and thereby, the plaintiff has filed O.S.No.24/2001 before the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.

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After service of notice, it was reported to the Court that, defendant No.2 died and has no issues. It is the contention of defendant No.1 that, defendant No.2 is the only son of his uncle-Sanneeraiah and the plaintiffs are the strangers to the case and therefore, defendant No.1 has disputed the relationship of the plaintiffs with his

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5 - NC: 2024:KHC:39274 RSA No. 2081 of 2018

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uncle-Sanneeraiah. Accordingly, sought for dismissal of the suit.

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Based on the pleading on record the Trial Court has framed the issues for his consideration. In order to establish their case, plaintiffs have examined 2 witnesses as PW-1 and PW-2 and produced 16 documents and same were marked as Ex.P-1 to Ex.P-16. Defendants have examined 3 witnesses as DW-1 to DW-3 and got marked 16 documents and same were marked as Ex.D.-14 to D- 16.

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The Trial Court after considering the material on

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record by its judgment and decree dated 22.06.2016, decreed the suit holding that, plaintiffs are entitled to 1/3^rd share each in the suit schedule properties. Feeling aggrieved by the same, the legal representatives of defendant No.1 have preferred R.A.No.63/2016 before the First Appellate Court and the same was resisted by the plaintiffs. The First Appellate Court after re-appreciating the material on record by judgment and decree dated 12.07.2018 allowed the appeal, consequently set aside the

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judgment and decree in O.S. No.24/2001 and feeling aggrieved by the same, the plaintiffs preferred this appeal.

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This Court vide order dated 13.01.2021 framed the following substantial questions of law:

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a) Whether the First Appellate Court is justified in altering the shares of the parties to the suit in OS.No.24/2001?

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b) Whether the finding recorded by the First Appellate Court with regard to Ex.P9 and Ex.D1-Geneological Tree of the parties is justified.

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Heard Sri. V.F. Kumbar, learned counsel

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appearing for the appellants and Smt. Jyothi S.K., learned counsel appearing on behalf of Sri. G.S. Prasanna Kumar, for the respondents.

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Sri. V.F. Kumbar, learned counsel appearing for

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the appellants contended that, the Trial Court having taken note of the factual aspects on record particularly with regard to the Genealogical tree produced at Ex.P-9,

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arrived at a conclusion that, the plaintiffs are the children of Sanneeraiah son of Ganeeraiah and the said aspect has been interfered by the First Appellate Court despite the fact that, the Trial Court has not framed issue with regard to the same. Therefore, it is contended that, the First Appellate Court committed an error in re-appreciating the material on record.

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It is also submitted by Sri. V.F. Kumbar, learned counsel appearing for the appellants that, Ex.P-9Genealogical tree has been issued by the Competent Authority and therefore, the First Appellate Court has no jurisdiction to disbelieve the said document and therefore, sought for interference of this Court.

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Per contra , Smt. Jyothi S.K., learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court by referring to paragraph No.21 of the judgment and submitted that the documents produced by

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the plaintiffs are the recent documents, which cannot be a basis to conclude that, the plaintiffs are the children of Sanneeraiah and Ramakka (Uncle of defendant No.1) and therefore, sought for dismissal of the appeal.

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Having taken note of the submission made by the learned counsel appearing for the parties, it is not in dispute that, the plaintiffs have filed Genealogical tree as per Ex.P-9, to establish their relationship between the original propositus-Ganeeraiah and on the other hand Ex.D-1-Genealogical tree has been produced by defendant No.1, disputing the relationship of the plaintiffs with his uncle- Sanneeraiah.

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On careful examination of the pleadings on record, particularly, referring to the averments made in the written statement, the Trial Court ought to have framed an issue relating to the relationship between the parties as the same has been disputed in the written statement. Though, the First Appellate Court noticed that, the relationship between the parties has been disputed in

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the written statement and under such circumstances the First Appellate Court ought to have remanded the matter to the Trial Court by framing the issues, relating to prove the relationship between the parties. It is well established principle in law that, the First Appellate Court is the last Court for the fact finding as per Section 96 of CPC and in view of the declaration of law made by the Hon’ble Supreme Court in the case of Santhosh Hazari Vs. Purushottam Tiwari (Dead) by LR's reported in (2001) 3 SCC 179 , wherein Hon’ble Supreme Court held that, the judgment of the First Appellate Court must apply the conscious application of mind and record findings supported by reasons on all issues and contentions.

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In the present case, there are no issues relating

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to the disputing the relationship between the plaintiffs and the defendants and therefore, the First Appellate Court has committed an error in interfering with the judgment and decree passed by the Trial Court, without being remanding the matter to the Trial Court, for fresh consideration by

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NC: 2024:KHC:39274 RSA No. 2081 of 2018

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framing a particular issue relating to prove the relationship between the parties.

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In that view of the matter, the finding recorded

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by the First Appellate Court is contrary to law and provisions under Order 41 Rule 31 of the CPC and accordingly, I find force in the submission made by the learned counsel appearing for the appellants that, the appellants have made out a case to remand the matter to the Trial Court for fresh consideration with a direction the

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Trial Court to frame the issue relating to relationship between the parties. In the result, I pass the following:

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ORDER

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i. The Regular Second Appeal is allowed.

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ii. The Judgement and Decree dated 12.07.2018 in R.A. No.63/2016 on the file of the Additional Senior Civil Judge, Gubbi and Judgment and Decree dated 22.06.2016 in O.S. No.24/2001 on the file of the Prl. Civil Judge and JMFC are hereby set aside.

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NC: 2024:KHC:39274 RSA No. 2081 of 2018

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iii. The matter is remanded to the Trial Court in O.S. No.24/2001, with the direction to frame an issue relating to the relationship between the parties and thereafter, conclude the matter at the earliest by providing a fair opportunity of hearing to both sides.

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iv. It is also open for the parties to lead evidence and produce the relevant documents to prove their case, in accordance with law.

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v. Since the parties are represented through their learned counsel, parties are directed to appear before the Trial Court without waiting for summons from the Trial Court, on 28.10.2024 at 11.00 a.m.

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SD/(E.S.INDIRESH) JUDGE

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TMP List No.: 1 Sl No.: 50

Sannajunjaiah v. Basavaraju

Case brief

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Sannajunjaiah v. Basavaraju

Case brief

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