Sri K Subramani Vs Smt K Padmavathi

SMT. K. UMADEVI D/O. K. KRISHNAPPA W/O. V.P. PRABHAKAR AGED ABOUT 53 YEARS R/AT NO.30, 3RD MAIN ROAD MANTHRAYALAM APARTMENTS JAWAHAR NAGAR CHENNAI - 600 082.

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SRI MANJUNATHA S/O. ANJANAPPA AGED ABOUT 45 YEARS.

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SMT. VEENA D/O. ANJANAPPA W/O. KRISHNA REDDY

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AGED ABOUT 42 YEARS.

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SRI HARISH S/O. ANJANAPPA AGED ABOUT 39 YEARS

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RESPONDENTS NO.5 TO 7 ARE RESIDING AT FORT SHIDLAGHATTA TOWN PIN CODE - 562 105.

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SMT. K. BHAGYALAKAHMI D/O. LATE LAKSHMI NARASAMMA W/O. H. MUNIRAJU AGED ABOUT MAJOR R/AT NO. 2, "AKSHAYA" 3^RD CROSS, 6^TH A MAIN HMT LAYOUT, R.T.NAGAR BENGALURU - 560 032.

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SMT. K. GAYATHRI D/O. LATE LAKSHMI NARASAMMA W/O. T. KRISHNAPPA AGED ABOUT 50 YEARS RESIDING AT NO.1778 B.D.O. QUARTERS OPP. GOVERNMENT HOSPITAL GUDIBANDE TOWN CHIKKABALLAPURA DISTRICT PIN CODE - 561 209.

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SMT. JYOTHAMMA D/O. LATE KAKANNA W/O. SRINIVAS RESIDING AT C/O DEVARAJ WARD NO.4, NEAR CRESENT SCHOOL FORT SHIDLAGHATTA TOWN CHIKKABALLAPURA DISTRICT PIN CODE - 562 105.

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…RESPONDENTS (BY SRI K.R.SRINIVASAPPA, ADVOCATE FOR C/R1)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 25.05.2023 PASSED IN R.A.NO.15/2019 BY THE SENIOR CIVIL JUDGE AND JMFC, SHIDLAGHATTA BY DISMISSING THE APPEAL THEREBY MODIFYING THE JUDGMENT AND DECREE PASSED IN O.S.NO.610/2008 AND ETC.

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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 PRADEEP SINGH YERUR

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ORAL JUDGMENT

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Heard Sri Arun Kumar D.N., learned counsel for appellants and Sri K.R.Srinivasappa, learned counsel for caveator-respondent No.1.

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This appeal is preferred by defendant Nos.3, 4 and 6 challenging the judgment and decree dated 25.05.2023 passed in R.A.No.15/2019 by the Senior Civil Judge and JMFC, Sidlaghatta, modifying the judgment and decree dated 11.02.2019 passed in O.S.No.610/2008 by the Additional Civil Judge and JMFC, Shidlaghatta, where in suit for partition and separate possession came to be decreed in favour of respondent No.1-plaintiff.

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Since the Court is not inclined to accept the

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contentions made by learned counsel for appellantsdefendant Nos.3, 4 and 6 at the initial stage of admission, the Court finds no reason to frame any substantial

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questions of law. Therefore, this Court does not find any need or necessity to issue notice to respondent Nos.2 to 10.

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Parties shall be referred to as per their ranking before the trial Court.

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Brief facts of the case are as under:

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The plaintiff and defendants are members of a joint family. The suit schedule properties are ancestral and joint family properties. Item No.5 of the suit schedule properties was purchased out of the joint family funds, though the same was acquired in the name of defendant No.3. Item No.4 of the suit schedule properties originally belonged to one Sri Kakanna, the grandfather of the plaintiff and the father of defendant Nos.1 and 2. Since the

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time of the said Sri Kakanna, the family members have

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been in joint possession and enjoyment of item Nos.1 to 4 of the suit schedule properties without any hindrance or interference from any person. The said Sri Kakanna died intestate leaving behind defendant Nos.1 and 2 as his legal heirs to succeed to his estate. Accordingly, defendant Nos.1 and 2 inherited the estate left behind by Sri Kakanna and thereby perfected their title over the said properties by virtue of inheritance.

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5.1 It is stated that defendant No.1, being the elder member of the joint family and the kartha thereof, got the khatha, mutation and other revenue records pertaining to the suit schedule properties transferred into his name in the records of the concerned Authorities. Since from the date of such transfer of khatha and other revenue records into the name of defendant No.1, the plaintiff and the defendants have been in joint possession and enjoyment of item Nos.1 to 4 of the suit schedule properties as members of the joint family.

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5.2 It is also stated that defendant No.1

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subsequently stopped sharing the income and profits derived from item Nos.1 to 4 of the suit schedule properties with the plaintiff and other defendants. When the same was questioned by the plaintiff, defendant No.1 assured that the income and profits derived from item Nos.1 to 4 of the suit schedule properties would be utilized for acquiring additional properties for the benefit of the joint family. Accordingly, item No.5 of the suit schedule properties was purchased out of the income derived from item Nos.1 to 4 of the suit schedule properties; however, the said property was acquired in the name of defendant No.3.

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5.3 It is further stated that item Nos.1, 2, 3 and 5 of the suit schedule properties are house properties. The buildings constructed on item Nos.1, 2, 3 and 5 of the suit schedule properties have been put-up out of the income and profits derived from the joint family properties. The defendants have let out certain portions of the said

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buildings to tenants and are earning rental income therefrom. However, ever since defendant Nos.1 and 2 inherited and derived title over the suit schedule properties, they have not shared the income or mesne profits derived from the said properties with the plaintiff. Despite repeated demands made by the plaintiff for partition and separate possession of her legitimate share in the suit schedule properties, the defendants have failed and neglected to effect partition. Hence, the plaintiff filed a suit for partition and separate possession against the defendants.

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5.4 Upon summons being issued in the suit to the defendants, the defendants appeared before the Court through their counsel. During the pendency of the proceedings, defendant No.1 died and his legal representatives were brought on record. defendant Nos.3, 4 and 6 filed their written statement denying the averments made by the plaintiff. It is contended by the defendants that defendant Nos. 1 to 4 and 6 had already

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effected a partition of the ancestral and joint family properties under a registered Partition Deed dated 28.01.2008. Pursuant to the said registered Partition Deed, the respective shareholders have been in possession

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and enjoyment of the properties allotted to their respective shares. They have also approached the concerned Authorities seeking transfer of khata in respect of the properties allotted to them under the said Partition Deed. It is also contended by the defendants that the plaintiff has filed a false and frivolous suit and therefore, the defendants have sought for dismissal of the suit. Defendant Nos. 5, 8 and 10 to 12 also filed their written statement and sought for decreeing the suit.

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5.5 On the basis of the pleadings and rival contentions made by both the parties, the trial Court framed the following issues for consideration:

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"1. Whether the plaintiff proves that the suit schedule properties are joint family properties of herself and defendants?

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2. Whether the defendant No.3, 4 and 6 prove the earlier partition as stated in their written statement?

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3. Whether the plaintiff is entitled for the relief of partition and separate possession? If so what is her quantum of share?

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4. Whether the plaintiff is entitled for the mesne profit?

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5. What order or decree?"

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5.6 In order to substantiate the issues and to

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establish the case, plaintiff examined herself as PW.1 and got marked 6 documents as per Exs.P1 to P6 on her behalf. Whereas, the defendant No.3 examined himself as

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DW.1 and two other witnesses as DWs.2 and 3 and got

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marked 21 documents as per Exs.D1 to D21.

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5.7 Based on the materials placed on record, both oral and documentary, the trial Court, after considering all the documents which were placed on record, did not find favour with the submissions made and the contentions put forth by the defendants. The claim of defendant Nos.3, 4, and 6 that item No.5 is their absolute property was

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rejected because they did not produce any documentary evidence or proof to support their claim. The trial Court accepted the other contentions of the defendants and the plaintiff. Accordingly, the trial Court decreed the suit of the plaintiff by granting 1/10^th share in each of the suit schedule properties to the plaintiffs and defendants Nos.1 to 9 were also entitled to 1/10^th share in each of the suit schedule properties.

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5.8 Being aggrieved by the impugned judgment and decree of the trial Court, defendant Nos.3, 4 and 6 preferred an appeal before the first Appellate Court in R.A.No.15/2019.

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5.9 On summons being served in the said appeal, the respondents therein appeared before the Court.

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5.10 The first Appellate Court, after reconsideration of the entire materials, both oral and documentary and reanalysing all the gamut of materials placed including the

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impugned judgment and decree passed by the trial Court,

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formulated the following points for consideration:

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"1. Whether the appellants/defendant No.3, 4, and 6 have established that the suit schedule properties are not joint family properties of plaintiff and defendants?

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2. Whether the appellants/defendant No.3, 4, and 6 established that the partition deed dated: 28.01/2008 is binding on the share of plaintiff?

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3. Whether judgment and decreed passed by Addl Civil Judge and JMFC., Shidlaghatta in O.S.No.610/2008 dated: 11/02/2019 is erroneous and requires the interference of this court?

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4. What order or decree?"

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5.11 Upon re-analysation and re-consideration of the entire materials on record, the first Appellate Court did not find favour with the appellants-defendant Nos.3, 4 and 6 and thereby dismissed the appeal and modified the judgment and decree passed by the trial Court in O.S.No.610/2008, which reads as under:

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"The defendant No.1, 2 and 12 and Lr's of deceased Lakshminarasamma are entitled equal 1/4^th

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share each in the suit schedule properties, out of 1/4^th share the of plaintiff father, the plaintiff, defendant No.3 to 6 are entitled equal 1/6^th share each in the suit schedule properties."

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5.12 Aggrieved by the same, defendant Nos.3, 4 and 6 are before this Court in this second appeal.

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It is the vehement contention of learned counsel for appellants-defendant Nos. 3, 4 and 6 that the trial Court as well as the first Appellate Court have committed a gross error, illegality and perversity and have failed to appreciate the materials placed on record. The trial Court as well as the first Appellate Court have committed an error in allotting one-tenth share to the plaintiff, which is contrary to law. The trial Court as well as the first Appellate Court have failed to consider that item No.5 of the suit schedule properties was the self-acquired property of defendant No. 3.

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6.1 It is also contended by learned counsel for

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appellants-defendant Nos.3, 4 and 6 that the trial Court as

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well as the first Appellate Court have conveniently ignored

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the consent deed executed by defendant No.3 in favour of defendant Nos.3, 4 and 6, whereby rights in respect of item No.5 were determined. The failure to take the said document into consideration renders the findings of the trial Court as well as the first Appellate Court illegal, perverse and arbitrary. It is further contended by learned counsel for appellants-defendant Nos.3, 4 and 6 that the judgment rendered is not sustainable in law and the same requires to be altered by holding that item No.5 is the selfacquired property of defendant No.3.

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6.2 Learned counsel for appellants-defendant Nos.3, 4 and 6 further contended that in view of the fact that this aspect has not been properly appreciated by the trial Court as well as the first Appellate Court, a substantial question of law arises for consideration before this Court. Hence, he seeks to allow this appeal. Consequently, to frame the substantial questions of law urged in the appeal memo.

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Per contra , learned counsel for respondents opposed the arguments advanced by the learned counsel for appellants, contending that the very same issue and aspect had already been considered by both the trial Court as well as the first Appellate Court. The Trial Court had negatived the contention that item No.5 was the selfacquired property of defendant No.3, and the said finding was re-appreciated and re-analysed by the first Appellate Court, which again negatived the same. Therefore, the said concurrent findings do not call for interference. It is further contended that no substantial question of law arises for consideration in the present case. Hence, the learned counsel seeks dismissal of the appeal.

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Having heard learned counsel for appellants and learned counsel for respondent No.1, this Court does not find any good ground or cogent reason to issue notice to the other respondents for the following reason:

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The aspect argued by learned counsel for appellants pertains only to item No.5 of the suit schedule properties.

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The said issue was agitated by the appellants before the trial Court in detail, particularly with reference to Ex.D13, which is alleged to be conveniently ignored by the trial Court.

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On careful perusal of the judgment and decree, it is seen that the trial Court has elaborately dealt with Ex.D13, the consent deed propounded by defendants Nos. 3, 4 and 6 and has categorically come to the conclusion that the defendants have failed to establish or prove that the said consent deed was executed with the consent of all the members of the joint family. Therefore, this aspect has already been considered and dealt with on facts by the trial Court. The first Appellate Court, upon re-appreciation and re-analysation of the evidence on record, has also considered the same and has rejected the claim of the appellants. The said finding cannot be reconsidered once again by this Court, as this Court is not sitting in the appellate jurisdiction.

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Section 100 of CPC deals with the scope and

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powers of the Appellate Court. It is a no more res integra to state that the powers as contemplated under Section 100 CPC are very narrow and limited. This Court, in several catena of judgments, has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is perversity shown in the judgments rendered by the trial Court as well as the first Appellate Court. When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record.

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The question of framing of substantial questions

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of law would depend upon if there is any illegality or perversity in the judgments rendered by the trial Court as

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well as the first appellate Court. Having considered the submissions of learned counsels for the parties and having perused the impugned judgments of both the Courts and having gone through the records, I do not find any perversity or illegality in the judgments rendered by both the Courts. The appellants have not made out any good ground for this Court to frame any substantial question of law, as no such question of law, in my opinion, exists to be framed to decide the case on hand. The reasons assigned and conclusion arrived at by both the Courts are just and proper. I do not find any cogent reason to interfere with the well reasoned judgments rendered by both the Courts.

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In view of the discussions made hereinabove, there is no scope for the appellants to re-agitate the matter on facts. No substantial question of law arises for consideration in this appeal. The first Appellate Court, considering the fact that certain family members had died and their legal representatives were brought on record,

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has modified the shares accordingly, which does not call

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for interference by this Court.

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Accordingly, I pass the following:

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ORDER

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This appeal is dismissed at the stage of admission

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itself, as this Court does not find any good ground to formulate any substantial question of law.

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In view of dismissal of the appeal, pending interlocutory application, if any, does not survive for consideration and the same pales into insignificance.

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Sd/-

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(PRADEEP SINGH YERUR) JUDGE

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CPN List No.: 1 Sl No.: 34

Sri K Subramani v. Smt K Padmavathi

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Sri K Subramani v. Smt K Padmavathi

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