Ramappa Poojary Vs Susheela

APPELLANT Nos.4 TO 11 ARE CHILDREN OF LATE SMT. BHAVANI & SRI. LAKSHMANA POOJARY ALL ARE R/AT ANANTHAKODI VILLAGE PERMANKI VILLAGE & POST MANGALORE TALUK, D.K. DISTRICT – 574 219

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…APPELLANTS

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(BY SRI. I. THARANATH POOJARY, SR. COUNSEL & SRI. ROHIT URS D., ADVOCATE) V/O DATED 17.08.2023 A2 & A3 ARE LRS OF DECEASED A1)

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AND:

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SUSHEELA A/A 53 YEARS

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GANESH A/A 33 YEARS

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NAGARAJA A/A 32 YEARS

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VATHSALA A/A 29 YEARS

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RAVISHANKAR A/A 28 YEARS

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RESPONDENT No.1 IS THE WIDOW AND Nos.2 TO 5 ARE CHILDREN OF LATE UMESH VAIDYA ALL ARE RESIDING AT MIYALA HOUSE BADAKABAILU KARIYANGALA VILLAGE POLALI POST BANTWAL TALUK D.K. DISTRICT – 574 219

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K.AHAMAD BAVA A/A 51 YEARS S/O ISUBU R/AT KARIYANGALA VILLAGE, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT – 574 219

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ABDUL RAHIMAN A/A 48 YEARS S/O KADRI BEARY, R/AT KARIYANGALA VILLAGE, BANGTWAL TALUK, DAKSHINA KANNDA DISTRICT – 574 219

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…RESPONDENTS

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(BY SRI. O SHIVARAM BHAT, ADVOCATE FOR R1 TO R5 R6 AND R7 ARE SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 6.6.2013 PASSED IN R.A.NO.100/2009 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, D.K, MANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED

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27.7.2009 PASSED IN O.S.NO.284/2004 (RE-NUMBERED AS O.S.NO.36/2007) ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., BANTWAL, D.K. DISTRICT.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 06.06.2013 passed in R.A. No.100/2009 by the II Additional District Judge, Dakshina Kannada, Mangalore.

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For convenience, the parties are referred to based on their rankings before the Trial Court, i.e., appellant Nos.1 to 3 were the legal representatives of the deceased plaintiff, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit ‘A’ schedule properties. It is contended that the original propositus was Venkappa Vaidya, the father of the plaintiff and defendants, was the Chalageni tenant regarding the suit schedule ‘A’ properties. After his demise, his wife, Kamala Hengsu filed Form No.7 claiming occupancy rights on behalf of the family. The Land Tribunal conferred occupancy rights in the name of Kamala for, and on behalf of the family. Kamala passed away and was survived by her son and two daughters. After the demise of Kamala, defendant No.1, being the eldest son and the head of the family continued the possession and enjoyment of the suit ‘A’ schedule properties.

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The plaintiffs issued a legal notice calling upon defendant No.1 to effect a partition, but defendant No.1 refused to effect a partition, and set up a ‘Will’ alleged to have been executed by Kamala in favour of

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defendant No.1 on 08.12.1995. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, he prays to decree the suit.

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During the pendency of the suit, defendant No.1 died and his legal representatives were brought on record.

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The legal representatives of defendant No.1 filed a written statement denying the averments made in the plaint. It is contended that Kamala, the mother of the plaintiff and defendant No.1, obtained the suit ‘A’ schedule properties on Chalageni from one Sri.Krishnan Nayak and sons, and she was paying yearly rent to the landlord. It was denied that Kamala had filed the declaration and held tenancy on behalf of the entire family. It is contended that Kamala had filed a declaration for the grant of occupancy rights in her individual capacity rather than for the entire family. It is contended that the

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plaintiffs and defendant No.2 are living separately and have not contributed anything to the plaint “A” schedule property.

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It is contended that defendant No.1 had invested a huge amount in the development of ‘A’ schedule properties. It is contended that Kamala executed a Will bequeathing the suit ‘A’ schedule properties in favour of defendant No.1. The said fact was within the knowledge of defendant No.2 and plaintiffs. After the demise of Kamala, defendant No.1 became the absolute owner of the suit schedule properties. The plaintiffs and defendant No.2 had no right and to claim a share in the suit schedule properties. Hence, he prays to dismiss the suit.

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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“(i) Whether the plaintiff proves that their father Venkappa Vaidya was enjoying

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the plaint ‘A’ schedule properties as a chalageni tenant?

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(ii) Whether the plaintiff proves that herself and defendants No.1 and 2 are in joint and constructive possession of plaint schedule property?

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(iii) Whether the plaintiff proves that she is entitled for 1/3^rd share in plaint schedule property?

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(iv) Whether the plaintiff proves that she is entitled for income as prayed for?

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(v) whether the legal representatives of the 1^st defendant prove that Kamala Hengsu bequeathed and her occupancy holdings in favour of deceased Umesh Vaidya by way of her last will dated 08.12.1995?

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(vi) Whether the plaintiff is entitled for reliefs as prayed for?

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(vii) What order or decree? ”

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Plaintiff No.1(c) was examined as PW-1 and 34

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documents were marked as Exs.P-1 to 34. In rebuttal, defendant No.1(a) was examined as DW-1,

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and one witness was examined as DW-2 and one document was marked as Ex.D-1.

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The Trial Court after recording the evidence, hearing both sides and on assessing verbal and documentary evidence on record, answered issue Nos.1 to 3 and 6 in the affirmative; issue No.4 partly in the affirmative; issue No.5 in the negative; and issue No.7 as per the final order.

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The suit of the plaintiffs was decreed. It was declared that plaint ‘A’ schedule properties were liable to be partitioned into three equal shares; the legal representatives of plaintiff are together entitled to 1/3^rd share in the suit schedule property; the legal representatives of defendant No.1 are together entitled to 1/3^rd share and defendant No.2 is entitled to 1/3^rd share in the suit schedule property.

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The legal representatives of plaintiff No.1 are together entitled to 1/3^rd share in the income of the

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property by way of mesne profits for three years preceding the date of the suit. They are also entitled to future mesne profits till the date of delivery of the possession of their shares at the above rate on payment of the necessary Court fee.

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The legal representatives of defendant No.1, aggrieved by the judgment and preliminary decree passed in O.S. No.36/2007, preferred an appeal in R.A. No.100/2009 on the file of the learned II Additional District Judge, Dakshina Kannada, Mangalore.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration:

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“(i) Whether the judgment of the trial Court is not based on the pleadings and evidence placed before the Court and principles of law and needs interference by this Court?

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(ii) What order?”

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The First Appellate Court, on re-assessing the verbal and documentary evidence, answered point No.1 in the affirmative and point No.2 as per the final order.

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The appeal was allowed with costs throughout vide judgment dated 06.06.2013 and the judgment and decree passed in O.S. No.36/2007 dated 27.07.2009 was set aside, and consequently, the suit of the plaintiffs was dismissed.

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The legal representatives of the plaintiff aggrieved by the judgment and decree passed in R.A. No.100/2009 filed this Regular Second Appeal.

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Heard the arguments of the learned Senior Counsel Sri.I.Tharanath Poojary for the legal representatives of the plaintiff and Sri.O.Shivaram Bhat, learned counsel for the defendants.

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The learned Senior counsel for the legal representatives of the plaintiff submits that the First Appellate Court has reversed the judgment and

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decree passed by the Trial Court solely on the ground that the plaintiff had produced only the true copies of Exs.P-29 to 32. He submits that he has produced certified copies of Exs.P-29 to 32 by filing an application for the production of additional documents, i.e., in I.A. No.1 of 2025, before this Court. He also submits that he has produced geni paid receipts, RTCs and levy paid receipts for the period before 1994, to show the possession over the suit schedule properties, on behalf of the family. Further, the Land Tribunal granted the occupancy rights in favour of Kamala, for and on behalf of the entire family and that she has no right to execute a Will bequeathing the suit schedule properties in favour of defendant No.1.

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He submits that the First Appellate Court has not applied its mind while passing the impugned judgment. He also submits that the defendants have admitted before the revenue authorities regarding

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possession of the suit schedule properties, and the First Appellate Court has not framed the proper points for consideration. The judgment and decree passed by the First Appellate Court is not in compliance with the provisions of Order XLI Rule 31 of the Civil Procedure Code, 1908.

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Further, to buttress his arguments, he placed reliance on the judgment of the Hon’ble Supreme Court in the case of H.Siddiqui (dead) by legal representatives vs. A.Ramalingam, AIR 2011 SC 1492 . He also submits that the legal representatives of the plaintiff have filed an application in I.A. No.1/2025 for production of additional documents. Hence, on these grounds, he prays to allow the appeal, and an application in I.A. No.1 of 2025 and remit the matter to the First Appellate Court for a fresh consideration.

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Per contra , learned counsel for the defendants submits that the Land Tribunal has granted occupancy rights in favour of Kamala in her individual capacity, not for the benefit of the entire family. He submits that by grant of occupancy rights in favour of Kamala, she became the absolute owner of the suit schedule properties, as such, she bequeathed the suit schedule properties in favour of defendant No.1 by executing a Will dated 08.12.1995. After the demise of Kamala, defendant No.1 became the absolute owner of the suit schedule properties by virtue of the Will dated 08.12.1995. He submits that the plaintiffs have produced the documents at Exs.P-29 to 32, which are fabricated documents. He submits that the First Appellate Court was justified in recording a finding that if Exs.P-29 and 32 are excluded, there is nothing on record to show that Venkappa Vaidya originally cultivated the suit schedule properties.

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He also submits that the plaintiffs have filed an

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application for the production of an additional evidence. He submits that these documents could have been produced before the Trial Court, and the plaintiffs have not made out any grounds to entertain an application in I.A. No.1/2025.

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He also submits that the First Appellate Court has framed proper points for its consideration, and the judgment and decree passed by the First Appellate Court is in compliance with the provisions of Order XLI Rule 31 of the Civil Procedure Code, 1908 and hence, on these grounds, he prays to reject I.A. No.1/2025, and also to dismiss the appeal.

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This Court, vide order dated 18.03.2015, framed the following substantial questions of law:

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“(I) Whether the Lower Appellate Court was justified in reversing the finding of the trial Court that the occupancy right was granted for the benefit of the family and

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such benefit would enure to the plaintiff as well?

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(II) Whether in that circumstance, the document at Ex.D1 dated 08.12.1995 even if held to be proved would enable the Testatrix therein to bequeath the property regarding which occupancy right had been granted pursuant to Form No.7 being filed under the provisions of the Karnataka Land Reforms Act?”

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Substantial Question of Law No.1 :

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The original plaintiff i.e., Smt.Indira filed a suit for partition and separate possession claiming her share in the suit ‘A’ schedule properties on the ground that

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the suit schedule properties are the ancestral properties of the plaintiffs and defendants, and they are members of the Hindu undivided family, and no partition has been effected between the parties to the suit.

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The plaintiffs, to substantiate their case, produced 34

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documents. Ex.P-1 is Form No.10; Exs.P-2 to 16 are

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the RTC extracts; Ex.P-17 is the postal acknowledgment; Ex.P-18 is the copy of the order passed by the Land Tribunal which discloses that the Land Tribunal granted the occupancy rights in favour of Kamala; Ex.P-19 is the certified copy of Form No.7; Exs.P-20 to 26 are certified copies of the sketches; Exs.P-29 to 32 are certified copies of the Geni chits; Ex.P-33 is a reply notice dated 15.07.2014; Ex.P-34 is a certified copy of the order passed by the Assistant Commissioner, Dakshina Kannada.

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In rebuttal, defendant No.1 was examined as DW-1 and another witness was examined as DW-2. DW-1 has reiterated the averments made in the written statement in the examination-in-chief. She deposed that the occupancy rights was granted in favour of the defendant, Kamala, in her individual capacity and she became the absolute owner of the suit schedule property by the grant made by the Land tribunal.

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She deposed that Kamala executed a Will dated 08.12.1995 bequeathing the suit schedule properties in favour of defendant No.1. Kamala died and after her death, her son—defendant No.1 by the Will became the absolute owner of the suit schedule properties and to prove the Will, defendants produced the original Will marked as Ex.D-1. However, to prove the execution of the Will by Kamala in favour of defendant No.1, the defendants examined an attesting witness as DW-2.

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The Trial Court, considering Exs.P-29 to 32, has recorded a finding that the suit schedule properties are ancestral properties and that the grant made by the Land Tribunal in favour of Kamala, is for the benefit of the entire family.

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The First Appellate Court, however, reversed the judgment and decree passed by the Trial Court only on the ground that Exs.P-29 to 32 are true copies and

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the certified copies. If those documents are excluded, then there is no material on record to establish that the suit ‘A’ schedule properties were originally cultivated by Venkappa Vaidya. Furthermore, the First Appellate Court has framed a point for its consideration. Although, the Trial Court framed as many as seven issues, the First Appellate Court being a final fact finding Court, was required to re-appreciate the entire evidence on record, by framing the proper points for consideration, and answer each issue framed by the Trial Court.

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From the perusal of the judgment passed by the First Appellate Court, it is evident that there is no substantial compliance of Order XLI Rule 31 of the CPC.

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The Hon’ble Apex Court in the case of H.Siddiqui ( supra ) has laid down the guidelines at paragraph No.18, which reads as follows :

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“18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision

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on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh & Anr., AIR 1963 SC 146; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124; G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224; Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary & Ors. , AIR 2007 SC 2380). ”

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The First Appellate Court has not applied its mind and

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decided the case considering the material on record.

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Thus, it would amount to non-compliance of the provisions of Order XLI Rule 31 of the CPC. Further, the judgment and decree passed by the First Appellate Court is contrary to the proposition of law

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laid down by the Apex Court in the case of H.Siddiqui referred supra .

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The plaintiffs have filed an application in I.A. No.1/2025 for the production of additional evidence. In support of the application, plaintiff No.1(b)/appellant No.2 filed an affidavit stating that the plaintiffs have filed a suit for partition and separate possession. It is submitted that the occupancy rights were conferred on his grandmother on behalf of the family and originally, it was tenanted by his grand-father, Venkappa Vaidya, and after his death, his wife i.e., Kamala Hengasu filed a declaration. It is stated that the defendants are the wife and children of late Umesh, who is the brother of his late mother Indira (the original plaintiff), and the defendants have set up a Will dated 08.12.1995, alleged to have been executed by Kamala.

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It is stated that the Trial Court decreed the suit holding that the tenancy was ancestral and would enure to the benefit of the children of the grantee i.e., Kamala Hengasu. It is stated that the First Appellate Court reversed the findings of the Trial Court holding that the tenancy was not proved to be ancestral, as the Geni paid receipts as per Exs.P-29 to 32 were true copies, and in the absence of production of certified copies, it is difficult to accept such receipts as a proof of tenancy. It is also stated that his grand-mother—Indira was the plaintiff before the Trial Court. She expired during the pendency of the suit and thereafter, his father was conducting the case on her behalf before the First Appellate Court and later, he also expired about three years ago.

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It is stated that appellant No.2 is a coolie and was never involved in conducting the Court proceedings. Hence, it is contended that the proposed documents go to the root of the case and if the legal

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representatives of the plaintiff are permitted to produce the additional evidence, no injustice would be caused to the defendants. Hence, he prays to allow the appeal, and on interlocutory application in I.A. No1 of 2025.

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Heard the arguments of the learned counsel for the defendants who opposed the said application on the ground that the plaintiffs could have produced the said documents before the Trial Court. These documents were not produced before the Trial Court for the reason best known to them. He submits that the legal representatives of the plaintiff have produced the documents only with the intention of filling the lacuna. Hence, on these grounds, he prays to reject the application.

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At the outset, it is pertinent to note that there is no dispute regarding the occupancy rights were granted by the Land Tribunal in the name of Kamala. That

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the plaintiffs have produced Exs.P-29 to 32 i.e., Geni paid receipts, which disclose that the suit schedule properties are the ancestral properties. However, the First Appellate Court has declined to consider Exs.P29 to 32 only on the ground that they are true copies.

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The plaintiffs had produced true copies of four Geni Chits, as per Ex.P-29 to 32, which disclose that the G eni was paid from 1968 to 1971. The defendants did not raise the objection at the time of marking the above said documents. Now, the legal representatives of the plaintiff have produced the certified copies of Ex.P-29 to 32, and also produced revenue records, which disclose that Venkappa Vaidya was in possession of the suit schedule properties before the Land Tribunal granted occupancy rights in favour of Kamala.

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The additional documents sought to be produced goes to the root of the case, which helps in adjudicating

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the matter in proper perspective. The legal representatives of the plaintiff could not have produced the said documents before the Trial Court, as the legal representatives of the plaintiff had already produced the true copies of these documents at Exs.P-29 to 32. In view of the findings recorded by the First Appellate Court, it would be necessary for the legal representatives of the plaintiff to produce the certified copies of these documents. As such, the legal representatives of the plaintiff have made out a ground to allow I.A. No.1/2025.

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In view of the above discussion, I answer substantial questions of law No.1 in the negative, and hold that the matter requires re-consideration by the First Appellate Court.

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In view of the same, substantial question of law No.2 does not survive for consideration. Accordingly, I proceed to pass the following order:

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ORDER

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(i) This Regular Second Appeal is allowed .

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(ii) The judgment and decree passed in R.A. No.100/2009 dated 06.06.2013 passed by the learned II Additional District Judge, Dakshina Kannada, is set aside .

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(iii) I.A. No.1/2025 is allowed. The documents are taken on record.

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(iv) Regular Appeal No.100/2009 is restored to its original file.

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(v) The First Appellate Court is directed to record the evidence as per the provisions of Order XLI Rule 28 of the Civil Procedure Code and thereafter, pass the appropriate judgment in accordance with law.

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