C G Krishnamurty Rao Since Dead by Lrs Smt Chandrakala B K Vs Smt. Sharadamma Since Dead by Lrs Smt Anasuyamma Since Dead by Lrs Smt Nagaratna

SMT. B. K. AHALYA D/O. LATE C. G. KRISHNAMURTHY RAO W/O. LATE SHIVAKUMAR AGED ABOUT 56 YEARS R/AT 7^TH CROSS, 7^TH MAIN CANARA BANK COLONY SRINIVASANAGAR BANGALORE - 560 091.

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…APPELLANTS

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(BY SRI SUNIL K.N., ADVOCATE)

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AND:

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SMT. SHARADAMMA (SINCE DEAD BY LR'S.)

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SMT. ANASUYAMMA (SINCE DEAD BY LR'S.)

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SMT. NAGARATNA D/O. LATE ANASUYAMMA AGED ABOUT 48 YEARS. HOSAGAVI VILLAGE AND POST KASABA HOBLI MADDURU TALUK MANDYA DISTRICT - 571 425.

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SRI NARENDRA KUMAR L.S. S/O. LATE ANASUYAMMA AGED ABOUT 50 YEARS #1801, NISARGA LAYOUT HARAPANAHALLI JIGANI HOBLI BENGALURU DISTRICT - 560 083.

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SMT. K. M. ANITHA W/O. S. VENKATESH AGED ABOUT 49 YEARS R/AT SOLUR VILLAGE KALATHUR POST - 562 114 JADIGENAHALLI HOBLI HOSAKATE TALUK BANGALORE DISTRICT.

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K.M.ANIL KUMAR S/O. MURALIDHAR K.S. AGED ABOUT 48 YEARS R/AT NO.249, 73^RD CROSS OPP. POST OFFICE, 1^ST STAGE KUMARASWAMY LAYOUT BANGALORE - 560 078.

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SMT. SUNITHA K. M. W/O. VENKATESH MURTHY B .S. AGED ABOUT 42 YEARS C/O. SAMPANGI RAMAIAH (SHANUBOGARU) R/AT BYTARAYANAHALLI ARELERI POST - 563 116. MALUR TALUK, KOLAR DISTRICT.

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SRI S. GUNDURAO S/O. LATE C. G. SRINIVASA RAO AGED ABOUT 74 YEARS HIGHER PRIMARY BOYS SCHOOL R/AT CHIKKA TAGGALI JADIGENAHALLI POST - 562 114 HOSAKOTE TALUK BANGALORE RURAL DISTRICT.

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SRI MANJUNATH RAO S/O. LATE C. G. SRINIVASA RAO AGED ABOUT 60 YEARS R/AT V. V. BADAVANE BEHIND GOVT. COLLEGE AT HOSAKOTE HOSAKOTE TALUK - 560 001 BANGALORE RURAL DISTRICT.

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SRI S. VENKATESH S/O. LATE C. G. SRINIVASA RAO AGED ABOUT 57 YEARS R/AT SOLUR VILLAGE KOLATHUR POST JADIGENAHALLI HOBLI HOSAKOTE TALUK - 562 114 BANGALORE RURAL DISTRICT.

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SMT. YESHODAMMA W/O. CHIDAMBAR AGED ABOUT 78 YEARS R/AT SARJAPUR, SARJAPUR POST ANEKAL TALUK - 562 125

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BANGALORE DISTRICT.

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SRI C. G. SUNDARA RAO (SINCE DEAD BY LR'S.)

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SRI C. S. KESHAVA RAO S/O. LATE C. G. SUNDARARAO AGED ABOUT 70 YEARS.

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SRI C. G. GOPINATH S/O. LATE C. G. SUNDARARAO AGED ABOUT 62 YEARS.

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RESPONDENT NO.10 AND 11 ARE RESIDING OF SOLUR VILLAGE KOLATHUR POST JADIGENAHALLI HOBLI HOSAKOTE TALUK - 562 114 BANGALORE RURAL DISTRICT.

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C.G.RAMANATHA RAO (SINCE DEAD BY LR'S.)

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SHANTAMANI K. N. W/O. LATE K.P.NAGARAJARAO AGED ABOUT 60 YEARS KAKATHI, KAKATHI POST - 591 113 CHINTHAMANI TALUK, KOLAR.

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SRI VENKATESH CR (SINCE DEAD BY LR'S.)

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SRI ARAVINDA S/O. LATE VENKATESH C. R. AGED ABOUT 30 YEARS R/AT SOLUR VILLAGE KOLATHUR POST JADIGENAHALLI HOBLI - 562 114. HOSAKOTE TALUK.

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SMT. MANUJULA C. R. W/O. BHANU PRAKASH

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AGED ABOUT 57 YEARS SOLURU GRAMA KOLATHURU POST JADIGENAHALLI HOBLI HOSAKOTE TALUK - 562 114.

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SRI GOVINDARAO C. R. S/O. LATE RAMANATHARAO AGED ABOUT 55 YEARS SOLUR VILLAGE KOLATHUR POST JADIGENAHALLI HOBLI - 562 114. HOSAKOTE TALUK.

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SRI THIRUMALESHA RAO S/O. LATE RAMANATHARAO AGED ABOUT 53 YEARS SOLUR GRAMA KOLATHUR POST JADIGENAHALLI HOBLI HOSAKOTE TALUK - 562 114.

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SRI M.RAMESH S/O. GUNTA MUNIYAPPA AGED ABOUT 50 YEARS SOLUR VILLAGE KOLATHUR POST JADIGENAHALLI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT - 562 114.

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SRI B. S. MUNIRAJU S/O. BEERAPPA AGED ABOUT 49 YEARS R/A SOLUR VILLAGE KOLATHUR POST - 562 114 JADIGENAHALLI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT.

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SMT. TAARA B. K. (SINCE DEAD BY LR'S.)

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DHANVANTHARI S. S/O. LATE B. K. TAARA AGED ABOUT 48 YEARS.

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SMT. MANGALA D/O. LATE B. K. TAARA AGED ABOUT 46 YEARS.

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RESPONDENT NO.19 AND 20 ARE RESIDING AT DATTAREYA ROAD GANDHIBAZAR BASAVANAGUDI BENGALURU - 560 004.

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…RESPONDENTS

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.09.2024 PASSED IN R.A.NO.90/2015 BY IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, CONFIRMING THE JUDGMENT AND DECREE DATED 08.06.2015 PASSED IN O.S.NO.87/2002 BY II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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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 learned counsel for appellants.

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This appeal is preferred by plaintiff Nos.1(d), 1(e) and 1(h) challenging the judgment and decree dated 19.09.2024 passed in R.A.No.90/2015 by IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, confirming the judgment and decree dated 08.06.2015 passed in O.S.No.87/2002 by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby the trial Court dismissed the suit of the plaintiffs.

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One C.G.Krishnamurthy Rao, who is the plaintiff filed a suit for relief of partition for one-fifth share in the suit schedule properties and to declare the gift deed executed by defendant No.1 in favour of defendant Nos.2 and 3 on 31.08.2001 and in favour of defendant No.4 on 07.08.2001 and in favour of defendant No.1(a) on 27.01.2006 as null and void and not binding on the share of plaintiff, to declare the alleged sale deed executed by

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defendant No.2 in favour of defendant No.9 on 14.06.2002

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in survey No.75 measuring 35 guntas and the sale deed executed by defendant No.3 in favour of defendant No.10 on 03.06.2006 in survey No.75/4 measuring 35 guntas as

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null and void and not binding on the share of the plaintiff and also to declare the order passed in LRF (J) 101/7980, LRF (J) 334 / 81-82 and LRF (J) 148/81-82 dated 20.02.1982 as null and void.

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

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Brief facts of the case are as under:

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It is the case of the plaintiff that land bearing survey No.75 measuring 3 acres 35 guntas, land bearing survey No.15 measuring 25 guntas and land bearing survey No.184 measuring 10 acres and 27 guntas are the suit schedule properties. It is stated that plaintiff’s father, namely, late C.V.Gundurao and mother, namely, Smt.Jeevubaiyamma are the original propositus of the

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family. They had six sons, namely, late C.G.Rama Rao, C.G.Lakshman Rao, late C.G.Srinivasa Rao, C.G.Krishnamurthy Rao, C.G.Sundara Rao and C.G.Ramanath Rao. It is pleaded that during the lifetime of the plaintiff’s parents, C.G.Lakshman Rao, the second son of the plaintiff’s father, separated from the joint family after taking his legitimate share. Defendant No.1 is the wife of late C.G.Srinivasa Rao, who is the brother of the plaintiff. Defendant Nos.2 to 4 are the sons of late C.G.Srinivasa Rao. Defendant Nos.5 and 6 are the daughters of late C.G.Rama Rao. Defendant Nos.7 and 8 are the brothers of the plaintiff.

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5.1 It is claimed by the plaintiff that the suit schedule properties are the absolute properties of the plaintiff’s mother. It is further pleaded that during the lifetime of the plaintiff’s mother, the suit schedule properties were not divided amongst the plaintiff and the defendants. The plaintiff’s mother died in the year 1975, leaving behind the plaintiff and defendants Nos.1 to 8 as her legal heirs. It is

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also stated that a temple, namely Channarayaswamy Temple, was being maintained by the plaintiff’s family and that the income derived from the suit schedule properties was utilised for the maintenance of the said temple. Though the property was the absolute property of the plaintiff’s mother, namely Jeevubaiyamma, the name of late C.G.Srinivas Rao is entered in Column No.9 (cultivator column) and the name of the temple is entered in Column No.10.

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5.2 It is the case of the plaintiff that the plaintiff and

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defendant Nos.1 to 8 are in joint possession and enjoyment of the suit schedule properties. The name of late C.G.Srinivas Rao is found in the revenue records. After coming into force of the Karnataka Land Reforms Act, 1961, he had filed an application seeking grant of occupancy rights. Accordingly, occupancy rights were granted in respect of survey Nos.75 and 15 of the suit schedule properties. Though the said properties are joint family properties, the order of granting occupancy rights

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was passed in the individual capacity of late C.G.Srinivas

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Rao and hence, the same is not binding on the plaintiff.

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5.3 After the death of the said C.G.Srinivas Rao in the year 1996, his wife, Smt. Sharadambha, got her name entered in the revenue records by creating a fictitious entry. Subsequently, defendant No.1 also fraudulently obtained the khatha of the property and without having any absolute right, title or interest, executed a gift deed in favour of defendant Nos.2, 3, 4 and defendant No.1(a). Thereafter, a gift deed came to be executed in favour of defendant Nos.2 and 3 on 31.08.2001, in favour of defendant No.4 on 07.08.2001 and in favour of defendant No.1(a) on 27.01.2006. Based on the said gift deeds, defendant Nos.2 and 3 have further executed sale deeds in favour of defendant Nos. 9 and 10.

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5.4 It is the case of the plaintiff that, despite several requests and demands, the defendants have failed and neglected to effect partition of the suit schedule properties

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and have, in fact, turned hostile towards the plaintiff. The plaintiff, being one of the joint family members, is entitled to a one-fifth share in the suit schedule properties. However, the defendants, with an intention to deprive the plaintiff of his rightful share, have alienated portions of the suit schedule properties. Hence, the plaintiff has been constrained to file the present suit for partition and separate possession.

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5.5 Upon summons being issued in the suit to the defendant, defendant Nos. 2, 3, 4 and 9 appeared and filed their written statement denying the averments made by the plaintiff. The other defendants also filed written statements. The relationship between the parties is not in dispute. However, it is contended that the suit schedule properties are the self-acquired properties of the father of the defendants.

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5.6 It is pleaded that, as he was managing and looking after the maintenance of the temple, he acquired

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the said properties after coming into force of the Karnataka Land Reforms Act, 1961 by filing an application for grant of occupancy rights.

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5.7 It is further pleaded that the rights of the defendants’ father were duly recognised and confirmed by the grant of occupancy rights. Consequently, the defendants’ mother got her name mutated in respect of survey No.75/4 and being the absolute owner, had every right to execute the gift deeds. Therefore, the defendants have denied the claim of the plaintiff in their written statement and sought to reject the same by contending that the suit filed by the plaintiff is not maintainable. The other defendants have also taken various additional pleas contending that the suit filed by the plaintiff is not maintainable.

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5.8 On the basis of the pleadings and rival contentions made by both the parties, the trial Court

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framed the following issues and additional issues for

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consideration:

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"1. Whether the plaintiff proves that the schedule properties are joint family properties and inherited from the mother of the plaintiff?

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2. Whether the plaintiff further proves that he is in joint possession and enjoyment of the schedule properties?

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3. Whether the plaintiff further proves that he is entitled for 1/5^th share over the schedule properties?

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4. Whether the plaintiff is entitled for the relief sought?

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Addl. issues framed on this 8^th day of February 2013.

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1. Whether the LRs of Plaintiffs proves that the registered Gift Deed and Sale Deed executed in respect of the schedule properties are not binding on them?

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Addl. issues framed on 26.06.2013

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1. Does the 2^nd defendant proves that the suit is hit by principles of non joinder of necessary parties?

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5. What order or decree?

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5.9 In order to substantiate the issues and to

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establish the case, plaintiff No.1(e)-Gajagowri examined herself as PW.1 and got marked 75 documents as per Exs.P1 to P75. Whereas, defendant No.4 examined himself as DW.1 and also three witnesses as DWs.2 to 4 and got marked 109 documents as per Exs.D1 to D109.

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5.10 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 case of the plaintiff on the issues framed. The trial Court did not accept the contentions of the plaintiff that there was any scope for granting a share in the suit schedule properties. It negatived all the contentions put forth by the plaintiff, accepted the case of the defendants and accordingly, dismissed the suit of the plaintiff.

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5.11 The trial Court also came to the conclusion that the plaintiff had not produced cogent documentary

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evidence to substantiate and corroborate the facts pleaded before it. The trial Court did not accept the contention regarding the existence of a joint family or joint family status and instead, accepted the case put forth by the defendants. It was held that the defendants had the right to treat the suit schedule properties as their exclusive properties and to deal with the same, including alienation. Further, upon the death of the defendants’ father, the rights devolved upon his wife, who being vested with such rights, was competent to execute the gift deeds and alienate the properties.

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5.12 Being aggrieved by the impugned judgment and decree of the trial Court, the plaintiffs preferred an appeal before the first Appellate Court in R.A.No.90/2015.

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5.13 Upon summons being served, the defendants appeared therein.

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5.14 The first Appellate Court, after reconsideration

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of the entire materials, both oral and documentary and re-

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analysing all the gamut of materials placed including the impugned judgment and decree passed by the trial Court,

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formulated the following points for consideration:

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"1. Has the plaintiff/appellants proves that the suit properties are joint family properties and available for partition as on the date of filing the suit?

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2. Has the plaintiffs/appellants proves that sale deeds and gift deeds got executed in favour of defendants/respondents No.9 and 10 does not bind upon them and to be declared as null and void?

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3. Has the plaintiffs/appellants prove that the impugned judgment and decree passed by the trial court in O.S.No.87/02 dt.08.06.2015 is illegal, perverse and contrary to the provisions of law as well as on facts of the case?

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4. Has interference of this court is necessary? If so to what extent?

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5. What order?”

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5.15 Upon re-analysation and re-consideration of the

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entire material on record, including the voluminous documentary evidence produced by the parties, the first Appellate Court adverted to each of the documents and re-

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appreciated the evidence in detail. However, it did not find favour with the case of the plaintiff. Consequently, the appeal came to be dismissed and the judgment and decree passed by the trial Court was affirmed. The first Appellate Court, in fact, came to the conclusion that it was incumbent upon the plaintiff to establish and prove that, as on the date of filing the suit, the suit schedule properties stood in the names of the joint family members and retained the character of joint family properties.

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5.16 The first Appellate Court also came to the conclusion that the plaintiff failed to establish, that the suit schedule properties were joint family properties. On the contrary, it was found that the properties bearing survey Nos.38 and 184 were reflected as the exclusive properties of the defendants and Goddess Bhupathamma.

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5.17 It was also held by the first Appellate Court that the occupancy rights were granted in favour of the brother, namely, late C.G.Srinivas Rao, who thereafter

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continued as the exclusive owner of the property. The said

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status was not objected to by any of the family members, including the father, over a considerable period of time. On the basis of these findings, the first Appellate Court dismissed the appeal and confirmed the judgment and decree rendered by the trial Court.

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5.18 Aggrieved by the concurrent finding of both the trial Court as well as the first Appellate Court, plaintiff Nos.1(d), 1(e) and 1(h) are before this Court in this second appeal.

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It is the vehement contention of learned counsel

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for appellants–plaintiffs that both the trial Court and the first Appellate Court have committed serious illegality and perversity in their findings and have wholly ignored the oral and documentary evidence placed on record. It is

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further contended that such erroneous appreciation of evidence has resulted in a miscarriage of justice by denying the rightful share of the plaintiff, who is

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admittedly a member of the family in the suit schedule properties which are, in fact, joint family properties. The trial Court and the first Appellate Court have mechanically passed the impugned judgments without duly considering the materials placed on record by the plaintiff.

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6.1 It is further contended by learned counsel for appellants-plaintiffs that the suit schedule properties are described as “A” schedule property in Ex.P4, which is the settlement deed and that the said properties have never been partitioned amongst the family members, namely the appellants-plaintiffs and the defendants. Therefore, the dismissal of the suit without properly appreciating the said document and without granting the plaintiff’s legitimate share is illegal, arbitrary and perverse.

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6.2 Learned counsel for appellants-plaintiffs further contended that the trial Court has failed to consider the documents placed on record, i.e., Exs.P1 to P5. It is submitted that the plaintiffs ought to have been granted

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one-fifth share in the suit schedule properties, as the same

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are admittedly joint family ancestral properties. It is further contended that “A” schedule property under the original settlement deed has not been partitioned amongst the joint family members, which material aspect has been completely ignored by both the trial Court as well as the first Appellate Court.

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6.3 Learned counsel for appellants-plaintiffs further contended that both the trial Court and the first Appellate Court have failed to take into consideration the fact that late C.G.Srinivas Rao was appointed to look after the “A” schedule property under the settlement deed (Ex.P4). It is submitted that he was only acting in the capacity of a manager on behalf of the joint family members. In such circumstances, the Courts ought to have held that late C.G.Srinivas Rao was merely managing the suit schedule properties and that the same did not constitute as his exclusive properties.

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6.4 Learned counsel for appellants-plaintiffs further contended that both the Courts have committed a serious error in concluding that the suit schedule properties were the exclusive properties of late C.G.Srinivas Rao and not joint family properties. It is also contended that the subsequent grant or re-grant obtained by the wife and children of late C.G.Srinivas Rao does not confer any right, title or interest upon them and the same is not binding on the plaintiffs.

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6.5 It is further contended by learned counsel for appellants-plaintiffs that both the Courts have erred in holding that the brother of the original plaintiff late C. G. Srinivas Rao, is the absolute owner of item Nos.1 and 2 of the suit schedule properties and that item No.3 belongs to Bhupathamma Temple. It is submitted that, in fact, the temple is not situated in item No.3. In view of these submissions, it is contended that both the trial Court and the first Appellate Court have committed a serious illegality in not appreciating the material and crucial

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documents on record and have mechanically dismissed the suit, which has been mechanically affirmed by the First Appellate Court.

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6.6 Learned counsel for appellants-plaintiffs

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contended that both the trial Court and the first Appellate Court have failed to take into consideration the settlement deed dated 25.03.1941, the subsequent settlement deed dated 20.12.1966 and the partition deed dated 14.09.1990. It is further submitted that both the Courts

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have also failed to properly consider Exs.P2 and P31. Hence, he seeks to allow this appeal. Consequently, to frame the substantial questions of law as urged in the appeal memo.

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I have heard the learned counsel for appellants– plaintiffs. I do not find any need or necessity to issue notice to the respondents-defendants. This Court is not inclined to entertain the appeal for the purpose of framing substantial questions of law, as none arise for

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consideration. Accordingly, this Court deems it appropriate

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to dispose of the appeal at the stage of admission itself.

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The relationship between the parties is not in dispute. However, the defendants have specifically denied the contentions of the plaintiff that the suit schedule properties are the joint family properties. It is their case that the properties dealt with under the settlement deed are validly conveyed and binding. It is further contended that the subsequent deeds, including the partition deed entered into amongst the family members, are also valid and enforceable.

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It is also the case of the defendants that the original plaintiff has not claimed to be performing any Archaka Vruthi in respect of Goddess Bhupathamma. Further, the plaintiff has not questioned the role of late C.G.Srinivas Rao in functioning as Archaka of Chenna Devaraya Devaru, nor has he challenged the rights of late C.G.Srinivas Rao over the suit schedule properties. It is

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contended that the revenue entries stood in the name of late C.G.Srinivas Rao for a long period without any objection from any of the family members. In view of the same, it is asserted that the properties are the exclusive properties of late C.G.Srinivas Rao and the plaintiffs have no right, title or interest therein, much less to claim the same as joint family properties. It is further contended that the plaintiffs have failed to place any cogent materials on record to establish that the suit schedule properties are joint family properties.

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The trial Court and the first Appellate Court,

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having considered all these aspects and voluminous documentary evidence placed on record, have recorded concurrent findings of fact that the plaintiffs have failed to produce any material to establish that the suit schedule properties are the joint family properties. Consequently, the Courts below have negatived the claim of the plaintiffs, accepted the case of the defendants and dismissed the suit. Upon re-appreciation and re-analysation of the entire

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material on record, the first Appellate Court has concurred with the findings of the trial Court and confirmed the said judgment and decree.

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A short point that arises for consideration before

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this Court is:

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1. Whether the plaintiff has made out any cogent reason for framing the substantial questions of law in this case?

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Upon a careful perusal of the entire material on

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record, including the impugned judgments and the documents placed before the Court, it is the case of the plaintiffs that the substantial questions of law arise for consideration with regard to the settlement deed dated 25.03.1941, the subsequent settlement deed dated 20.12.1966 and the partition deed dated 14.09.1990 as well as the alleged non-consideration of Exs.P2 and P31. However, this Court is of the considered view that such

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aspects cannot be re-examined at this stage unless it is demonstrated that the findings recorded by the trial Court

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and the first Appellate Court suffer from perversity or are based on a complete non-appreciation of the material on record.

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On facts, both the trial Court as well as the first Appellate Court have adverted to and considered the aforesaid documents and have arrived at a concurrent finding that the plaintiffs have failed to establish that the suit schedule properties are the joint family properties. On the contrary, the defendants have established that the properties are the self-acquired and exclusive properties of late C.G.Srinivas Rao. When both the Courts have recorded concurrent findings of fact, it would neither be proper nor permissible for this Court to re-appreciate the evidence and arrive at a different conclusion, as this Court is not sitting in an 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

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

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HC-KAR

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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.

¶216

In view of the discussion made hereinabove, I do

¶217

not find any good ground or cogent reason to frame substantial questions of law, as urged by the appellantsplaintiffs, as none arise for consideration in the present appeal.

¶218