Sri Jayanna Vs Sri H C Vishwanath

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 07.03.2022 PASSED IN R.A.NO.20/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARASIKERE. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.02.2018 PASSED IN O.S.NO.98/2012 ON THE FILE OF THE PRL. CIVIL JDUGE AND JMFC, ARASIKERE.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard counsel appearing for the appellant. This second appeal is filed against concurrent finding of Trial Court and the First Appellate Court.

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The Trial Court having considered the claim made by appellant/plaintiff before the Trial Court, considered the admission on the part of P.W.1 in paragraph No.23 and comes to the conclusion that item No. 1 of the property originally belongs to the Government and the same was granted in favour of his father and that he had sold the property in favour of defendant No.1 and his father is defendant No.2. Apart from that, the Trial Court even taken note of admission i.e. the evidence of P.W.2 which is also extracted in paragraph No.28

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that the oral evidence of P.W.2 also clearly discloses that item No.1 of schedule property was granted in favour of defendant No.2 by the Government. The Trial Court in paragraph No.30 discussed that item No.1 of the property is not an ancestral property and the same is the self-acquired property of the father. Hence, taken note that the same cannot be held as ancestral property and also in paragraph No.34 taken note of the sale deed, wherein it was recited that he had no wife and children and also taken note of place of residence of both the plaintiff and defendant No.2 and that they are residing in distinct places. The Trial Court also taken note of Exs.P6 and P7 which clearly reveal that plaintiff pursued his education at Government School, Shettihalli and he is the permanent resident of Shettihalli, Gollarahatti Village, Kadoor Taluk and both Exs.P6 and P7 indicate that he was not residing along with defendant No.2 at any point of time and the said documentary evidence itself supports the contention of defendant No.1 that when the sale deed was executed, the defendant was not aware about the residence of plaintiff and his mother. Hence, the Trial Court granted the relief only in respect of item No.2 is

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concerned and declined to grant the relief in respect of item No.1.

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Being aggrieved by the said judgment, an appeal is filed before the First Appellate Court in R.A.No.20/2018 and the First Appellate Court also having considered the grounds in the appeal memo formulated the point whether the Trial Court has properly appreciated the law, oral and documentary evidence on record in rejecting the claim in respect of item No.1 and whether it requires interference. Having reassessed the material available on record, particularly taking note of the admission on the part of P.W.1 which has been discussed in paragraph No.20 that on perusal of cross-examination of P.W.1, he categorically admitted that the property was acquired by defendant No.2, but though claim that the same was acquired from out of sale of certain ancestral properties which belong to the paternal grandfather of the plaintiff and the same is not pleaded either in the plaint or in the evidence in chief of

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P.W.1 and comes to the conclusion that the same is an improvement and also taken note that cross-examination of P.W.1 further reveals that said witness has pleaded his inability

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to mention as to which of the so called ancestral properties were sold by defendant No.2 to purchase the suit schedule property. In paragraph No.21, the First Appellate Court also taken note of the fact that the plaintiff was not residing along with defendant No.2 and also taken note of evidence of defendant No.1 that he was a bonafide purchaser of the property and also observed that Exs.P6 and P7 show that plaintiff is a permanent resident of Shettihalli, Gollarahatti Village, Kadoor Taluk, while defendant No.2 was a resident of Arsikere. This clearly shows that plaintiff did not reside with defendant No.2. Hence, it is possible that purchaser i.e., defendant No.1 know about the existence of the plaintiff or he was led to believe that defendant No.2 did not have anybody to look after him and considering the same, the First Appellate Court also confirmed the judgment of the Trial Court.

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Now, the counsel appearing to the appellant would vehemently contend that both the Courts have committed an error in appreciating both oral and documentary evidence available on record. The counsel would contend that reasoning given by both the Courts that they were not residing together

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and since, they were doing coolie work, they were staying separately. Hence, this Court has to admit the appeal frame substantial question law whether the Court below is right in believing that item No.1 of the schedule property was the selfacquired property of defendant No.2, even though said property was allotted to defendant No.2.

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Having heard learned counsel appearing for the appellant also the reasoning given by the Trial Court, in order to prove the factum that item No.1 of the property was his ancestral property, nothing is placed on record. However, P.W.1 categorically admitted that before grant, it was government land and the same was granted in favour of his father. When such grant was made in favour of his father it becomes the self-acquired property of the father, who had sold the property in favour of defendant No.1 by executing the sale deed. The counsel appearing for the appellant would contend that no share and half consideration was paid to the plaintiff. When the plaintiff fails to produce any document to show that said grant was made in favour of the family as contended, Court also cannot presume the same, unless any material is

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placed on record and there must be cogent evidence before the Court, in order to come to such a conclusion and the very admission goes against P.W.1. Hence, the Trial Court rightly comes to the conclusion that the property is a self-acquired property and the same was sold by the father and even taken note of factual aspects and admission on the part of P.W.1 that both of them were residing separately and Exs.P6 and P7 indicates that even the plaintiff was not residing along with his father at the time of executing the sale deed in favour of defendant No.1 by defendant No.2. When such reasoning is given by the Trial Court and admittedly, when the land was granted in favour of the father and the same was sold during his lifetime, question of granting any share in favour of plaintiff also does not arise. Hence, I do not find any ground to come to a conclusion that both the Courts have committed an error in coming to the conclusion that the same is a self-acquired property and First Appellate Court also discussed in detail with regard to material on record and both the Courts have considered the question of fact and question of law and no ground is made out to admit the appeal and frame any substantial question of law.

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