Sri Srinivasaiah Vs Sri Thimmaiah

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.8.2017 PASSED IN RA NO.53/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.6.2014 PASSED IN OS NO.44/09 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, GUBBI.

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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 appellant challenging the judgment and decree dated 17.08.2017 passed in R.A.No.53/2014, by the learned Principal Senior Civil Judge, Gubbi, confirming the judgment and decree dated 30.06.2014 passed in O.S.No.44/2009 by the learned Principal Civil Judge and JMFC, Gubbi.

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For convenience, the parties are referred to based on their rankings before the trial Court. The

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appellant was the plaintiff, and the respondent was the defendant.

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

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The plaintiff filed a suit against the defendant for a partition and separate possession. It is contended that the plaintiff is the defendant’s son. They are the members of the Hindu undivided joint family, and the suit schedule properties are the ancestral joint family properties of the plaintiff and the defendant. The property bearing Sy.No.12/3, measuring 0.20 guntas, was acquired by the defendant in the partition between himself and his brother Mudalagiriyaiah, long back. The land bearing Sy.No.67, measuring 1.00 acre, was allotted by the Tahsildar, Gubbi, in favour of the defendant for the benefit of the family. The defendant started mismanaging the properties and income of the joint family and attempted to alienate the suit properties. A panchayath was conveyed in the village and requested the defendant to allot the legitimate share

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of the plaintiff in the suit schedule properties. The defendant did not effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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The defendant filed a written statement

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contending that there is no cause of action to file a suit. It is contended that the property bearing Sy.No.12/3, measuring 1.00 acre originally belonged to his mother Smt. Doddamma, after her death, the defendant and his brother Mudalagiriyaiah divided the said property in 1976, and in the said partition, item No.1, fell to the share of the

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defendant. It is further contended that item No.2 was allotted by the Tahsildar, Gubbi. Hence, the said properties are the self-acquired properties of the defendant. The plaintiff has no right to claim any share in the suit schedule properties. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the

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parties, framed the following issues.

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1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant?

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2) Whether the plaintiff proves that he is entitled for half share in the suit schedule properties?

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3) Whether the plaintiff is entitled for relief as claimed in the suit?

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4) What order or decree?

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To substantiate his case, the plaintiff examined himself as PW.1 and marked two documents as Exs.P1 and

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On the other hand, the defendant was examined as DW.1 and marked three documents as Exs.D1 to 3. The trial Court, after recording the evidence, hearing on both sides and on assessment of the oral and documentary evidence answered issues Nos. 1 to 3 in the negative, consequently, dismissed the suit vide judgment dated 30.06.2014. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.44/2009, preferred an appeal in

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R.A.No.53/2014 on the file of the Principal Senior Civil Judge Gubbi.

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The First appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration.

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1) Whether the impugned judgment and decree passed by the trial Court requires interference at the hands of this Court?

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2) What order?

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The First Appellate Court, on re-assessing the

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oral and documentary evidence, answered point No.1 in the negative and point No.2 as per the final order. The first Appellate Court dismissed the appeal vide judgment dated 17.08.2017. The plaintiff, aggrieved by the impugned judgments passed by the Courts below, filed this regular second appeal.

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Heard the arguments of the learned counsel for the plaintiff and learned counsel for the defendant.

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Learned counsel for the plaintiff submits that the first Appellate Court has not properly framed the points for consideration. He submits that the First Appellate Court has not answered all the issues framed by the trial Court. He submits that the First Appellate Court has not applied its mind while dismissing the appeal and not re-appreciated all the evidence on record. The judgment passed by the First Appellate Court does not comply with the Order XLI Rule 31 of CPC. Hence, on these grounds, he prays to allow the appeal, set aside the judgment and decree passed in R.A.No.53/2014, and remit the matter to the First Appellate Court, to reconsider afresh in compliance with Order XLI Rule 31 of CPC.

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Per contra , learned counsel for the defendant submits that both the Courts below have concurrently recorded a finding of fact against the plaintiff. Further, both the Courts below have considered the entire material placed on record and rightly passed the impugned

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judgments. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, on 11.11.2021, admitted the appeal on the following substantial questions of law :

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1) Whether the trial Court as well as Lower Appellate Court were justified in dismissing the suit of the plaintiff, on the ground that the suit schedule property is a self-acquired property of the defendant, having regard to the averments made by the defendant in his written statement categorically admitting that the suit schedule property originally belonged to his mother and subsequently, there has been a partition between himself and his brother in respect of the suit schedule property?

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2) Whether the trial Court as well as the Lower Appellate Court, have committed illegality and irregularity, while appreciating the material available on record and while exercising the jurisdiction vested upon them under law?

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13. Re-Substantial question of law No.2 :

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I have perused the judgment passed by the First Appellate Court. The First Appellate Court, except extracting the deposition of PW.1 and DW.1, has not assigned any reasons in affirming the judgment and decree passed by the trial Court. In my opinion, the First Appellate Court did not consider the points involved in the case in the manner in which it ought to have. For instance, the First Appellate Court held that the suit schedule properties are the self-acquired properties of the defendant. Except producing 3 documents, the defendant has not produced any other records. The judgment and decree passed by the First Appellate Court is contrary to the ratio laid down in the case of BANGARAPPA VS. RUDRAPPA AND ANOTHER REPORTED IN ILR 2012 KAR 1020 . The First Appellate Court, being a final fact-finding Court, must re-appreciate the entire evidence on record and answer each issue framed by the trial Court. The judgment passed by the First Appellate Court is not in

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compliance with Order XLI Rule 31 of CPC. On these grounds alone, the impugned judgment passed by the First Appellate Court is liable to be set aside. In view of the above discussion, I answer the substantial question of law No.2 partly in affirmative.

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As the matter requires reconsideration by the First Appellate Court, the substantial question of law No.1 does not survive for consideration.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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i. The appeal is allowed.

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ii. The impugned judgment passed in R.A.No.53/2014 by the Principal Senior Civil Judge, Gubbi, is set aside.

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iii. The appeal in R.A.No.53/2014 is restored to its original position. The First Appellate Court is directed to pass a judgment in compliance with Order XLI Rule 31 of CPC.

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