Sri Shylakumar Vs Smt Sundramma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.04.2024 PASSED IN RA NO.34/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.06.2020 PASSED IN OS.NO.91/2014 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, K.R.NAGARA.

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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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NC: 2026:KHC:18837 RSA No. 1720 of 2024

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ORAL JUDGMENT

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Heard learned counsel for the appellants.

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2. This appeal is preferred by the plaintiffs being

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aggrieved by the judgment and decree passed by the learned Senior Civil Judge and JMFC at K.R.Nagar in RA.No.34/2020 dated 05.04.2024 confirming the judgment and decree passed by the Additional Civil Judge and JMFC, Krishnarajanagara, in OS.No.91/2014 dated 25.06.2020, whereby the learned trial judge dismissed the suit of the plaintiffs.

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3. Parties to the proceedings shall be referred to

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as plaintiffs and the defendants for the sake of brevity.

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The brief facts of the case are as follows:

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It is the case of the plaintiffs that one Late.Guru

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siddappa alias Doddappa, S/o Late.Gurappa had two daughters, namely Akkayamma and Gowramma. Late.Guru siddappa did not have male issues. He executed

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a registered will on 28.11.1917 in favour of his two daughters in respect of all the properties. After execution of the said will, said Gurusiddappa died, and the possession and enjoyment of the properties continued by his two daughters as divided by him. It is also pleaded that the plaintiffs’ sisters continued in possession and enjoyment of the property of their respective shares as per the will given by their father.

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It is the further case of the plaintiffs that the properties of the late.Gurusiddappa, i.e., the properties bearing Sy.No.27 measuring 4 acres 0.12 guntas and in Sy.No.28 measuring 5 acres 0.11 guntas totally measuring 9 acres 0.23 guntas, as per the wish of their father and as per the registered will dated 28.11.1917, oral partition was entered into between the two daughters with regard to the property measuring 4 acres 0.12 guntas, which was possessed by the first daughter Akkayyamma in Survey No.28. Property measuring 4 acre 12 guntas in survey No. 27 and the property measuring 0.19.8 guntas in survey

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No.28 totally measuring 4.31.8 guntas was possessed and

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enjoyed by the second daughter Gowramma.

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The khatas in respect of the properties were mutated in the name of the respective daughters. The khata in respect of the remaining share of property of Gowramma in Survey No. 28, measuring to an extent of 0.19.8 guntas continued in the name of Akkayyamma. After the demise of Gowramma, the possession was continued by the plaintiffs.

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It is the case of the plaintiffs that they are the absolute owners of the suit schedule property bearing survey No.28/1 measuring 19.8 guntas situated at Adaganahalli Village, Hebbalu Hobli, K.R.Nagar Taluk, and that it is their case that the plaint schedule property has fallen to their ownership and possession by virtue of registered will executed by Late. Gurusiddappa @ Doddappa S/o Late.Gurappa dated 28.11.1917. It is

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contended by the plaintiffs that the plaint schedule property is an agricultural property.

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It is contended that the first plaintiff’s grandmother and second plaintiff’s mother were uneducated and due to lack of worldly knowledge after the demise of Gurusiddappa they have not filed any application before the concerned revenue authority for change of katha in respect of the schedule properties in their name. Even though the kathas were not changed, the first plaintiff and the second plaintiff during the lifetime of Gowramma and till date are in possession and enjoyment of the suit schedule properties.

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It is the case of the plaintiffs that on 10.02.2014 at 12 a.m., defendants illegally entered into the suit schedule property thereby interfering with the peaceful possession and enjoyment of the plaintiffs over the property and the plaintiffs advised them that they are in possession and enjoyment of the same by virtue of their

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will and requested the defendants to not interfere or encroach into their portion of the property. However, the same was met with harsh treatment and abusive language. Therefore, in view of the disturbance caused by the defendants, the plaintiffs were left with no other alternative but to file suit against the defendants.

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Upon service of the summons, defendants appeared before the Court, defendant No.2 filed the written statement denied the contentions of the plaint averments and sought for dismissal of the suit.

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Based on the pleadings, the trial Court framed the following issues for consideration.

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1. Whether plaintiffs prove that they are the absolute owners of the suit schedule property?

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2. Whether plaintiffs further prove that they are the peaceful possession over the suit schedule property?

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3. Whether plaintiffs further prove that there is alleged interference by the defendant to the plaintiffs possession over the suit schedule property?

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4. Whether plaintiffs are entitled the relief as prayed for?

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5. What order or decree?

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In order to substantiate the issues and to

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prove the case, plaintiff No.1 stepped into the witness box and examined himself as PW1. Plaintiff No.2 examined himself as PW2. Evidence of PW3 was discarded. Another witness was examined as PW4, and the documents produced are marked at Ex.P1 to Ex.P5. Defendant No.2 examined herself as DW1 and marked the documents as Ex.D1 to Ex.D16 in support of their case.

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The trial judge after hearing the arguments and on the basis of the materials placed on record, both oral and documentary, did not find favour with the plaintiffs and the assertion so made on the ground that no documents were produced in support of the evidence to make a foundation strong to contend that they are the owners of the property bearing 19 guntas in Survey No.28 and they are in possession of the suit schedule property so

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also came to the conclusion that the property measuring 19 guntas in Survey No.28 continued to be in the name of the other sister namely Akkayamma during her lifetime and also came to the conclusion that the plaintiffs are not in possession of the suit schedule property. Therefore, on the basis of the materials placed on record and the evidence adduced, did not find favour with the plaintiffs and accepted the contentions of the defendants and dismissed the suit of the plaintiffs.

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Aggrieved by the dismissal of the suit, the plaintiffs preferred the first appeal before the Senior Civil Judge and JMFC at K.R.Nagar in RA.No.34/2020. The first appellate Court reconsidered the matter once again and re-appreciated the entire materials, both oral and documentary, placed before the trial Court and also the submissions and arguments put forth by the learned counsels for both parties and after a re-look at the entire materials once again, formulated the following points for consideration.

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1. Whether the trial Court has rightly came to conclusion that, the plaintiffs have failed to prove that they are the absolute owners and in possession and enjoyment of the suit schedule property as on the date of filing of the suit and the plaintiffs also failed to prove that the defendants caused interference?

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2. Whether the appellants have made out grounds interfering with the judgment challenged in the appeal?

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3. What order?

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Upon reconsideration of the matter once again,

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after having a re-look at the entire gamut of materials placed before the trial Court, both oral and documentary, and the evidence adduced by the parties, the first appellate Court looked into the aspect of the partition having taken place and the will having been executed by their father Gurusiddappa in favour of the daughters namely Akkayamma and Gowramma. The properties having fallen to the respective shares of the daughters so also the revenue entries having not been challenged by the plaintiffs and the documents produced by the defendants clearly indicate that the entire property in

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survery No.28 stood in the name of Akkayamma so also

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the revenue entries having not been challenged by the plaintiffs or the ancestors before the competent Court of law. The plaintiffs were unable to establish and prove their

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ownership over the suit schedule property or for their possession and enjoyment over the suit schedule property did not find favour with the plaintiffs either for showing their ownership by way of production of any documents or their physical possession and enjoyment of the suit schedule property which on the contrary reveals in the name of the defendants to be in lawful possession and enjoyment so also the documentary evidence rejected the contentions raised by the learned counsel for the appellants/plaintiffs and dismissed the appeal, consequently confirming the judgment and decree rendered by the trial Court.

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Aggrieved by the judgment and decree

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rendered by both the Courts, dismissing the suit, the appellants/plaintiffs are before this Court contending that

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both the Courts have committed illegality and perversity in dismissing the suit by ignoring the material evidence and material documents placed on record, both oral and documentary, whereas learned counsel for the appellants vehemently contends that there is no dispute to the fact that Gurusiddappa was the father of Akkayyamma and Gowramma. During his lifetime, he executed registered will dated 28.11.1917 in favour of both the daughters, and after his death, the daughters namely Akkayyamma and Gowramma, partitioned the properties equally and the suit schedule property herein fell to the share of Gowramma, who is none other than the grandmother of the first plaintiff and mother of the second plaintiff.

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It is further contended that after the death of

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Gowramma, appellants/plaintiffs have been in peaceful possession and enjoyment of the suit schedule property as absolute owners. There is no dispute with regard to the relationship between the parties and also the execution of the registered will. Whatsoever, this aspect has been

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conveniently ignored by both the Courts while dismissing the suit of the plaintiff. Despite there being no dispute with regard to the relationship as well as the execution of the will by Late.Gurusiddappa.

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Learned counsel for the appellants/plaintiffs further contends that both the Courts have grossly erred in drawing an adverse inference against the appellants for having not produced the original will, ignoring the fact that there is no dispute with regard to the execution of the will. So also he contends that both the Courts have drawn inference against the appellants merely because the khata of the suit schedule property stands in the name of Akkayamma. Therefore, he contends that the assumptions and presumptions made are not correct by both the Courts, which are made by ignoring the evidence of admission made by DW1 in the course of crossexamination. Therefore, he contends that the judgments rendered by both the Courts are liable to be set aside, and this Court would have to frame substantial questions of

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law to further delve into the matter and consider the

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aspect once again.

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Learned counsel for the respondent Nos.1 to 5 sustains the impugned orders of the trial Court as well as the first appellate Court. He contends that there is no illegality or perversity in the judgment rendered by both the Courts. He further contends that it is for the plaintiff who comes before the Court seeking a declaratory relief over the immovable property to place materials on record to show that he is the absolute owner of the property or that he is in possession and enjoyment of the suit schedule property over a period of time. Unfortunately, both these aspects have not been proved.

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The trial Court in fact, has formulated relevant issues for consideration as to whether the plaintiffs were able to prove the absolute ownership over the suit schedule property or whether he is in peaceful possession and enjoyment and whether the defendants interfered with

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the possession and enjoyment of the plaintiffs over the

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suit schedule property. On the basis of the materials placed before the trial Court, there is absolutely no material placed by the plaintiffs to show that they are the absolute owners by production of any documentary evidence, nor any piece of document to show they are in possession and enjoyment of the suit schedule property, more specifically to an extent of 19.8 guntas in Survey No.28/1. In view of non establishment the case by the plaintiffs, the trial Court has rightly dismissed the suit. The first appellate Court on review and reconsideration of the matter once again did not find favour to the plaintiffs and has rightly dismissed the appeal and confirmed the judgment and decree.

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I have heard learned counsel for the appellants

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and the learned counsel for respondent Nos.1 to 5.

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The point that would arise for consideration is:

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Whether the appellants have made out any good ground or cogent reason to frame any substantial questions of law?

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2. Whether there is any illegality or perversity committed by the trial Court and the first appellate Court in dismissing the suit of the plaintiffs?

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Apparently, there is no dispute with regard to

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the relationship between the parties and also the father, namely late. Gurusiddappa, having had two issues, namely Akkayamma and Gowramma, and having executed a registered will dated 28.11.1917, divided the properties on the basis of the will in the name of two daughters. Thereafter, the two daughters partitioned the property amongst themselves and took possession of the same. Apparently, it is for the plaintiffs to establish their case when they come before the Court to stake a claim of declaratory relief of ownership over the suit schedule property to an extent of 19.8 guntas in Survey No.28. He would have to place material before the Court to establish

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the same and also show that he is in possession and enjoyment of the suit schedule property. Of course, he has

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made a valiant effort before the trial Court and the first

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appellate Court. However, no documentary evidence are placed before the trial Court and also before the first appellate Court except the evidence adduced before the trial Court and a stray statement made by DW1, which learned counsel vehemently contends that the extent of 19 guntas in Survey No.28 was entrusted to Gowramma. However, this aspect has not been elicited or proved by showing any piece of document, and the plaintiffs kept quiet for so many years, not making any effort to challenge the entries in the name of Smt.Akkayamma. These intricacies and elaborate aspects have been dealt with and gone into by the trial Court as well as the first appellate Court and did not find favour to the plaintiffs to show that the plaintiffs are the absolute owner and neither in possession nor enjoyment of the suit schedule properties and accordingly, negated the claim so made by the plaintiffs. Therefore, there is a concurrent finding of fact rendered by both the Courts.

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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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In view of the discussions made herein, I do

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not find any good ground or cogent reason to accept the contention of learned counsel for the appellants to frame

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substantial questions of law as none exist. The trial Court

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and the first appellate Court have dealt with elaborately on these aspects and did not find favour with the plaintiffs. Accordingly, I pass the following order.

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ORDER

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The appeal is dismissed at the initial stage of

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admission itself as no substantial questions of law required to be framed.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK

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List No.: 1 Sl No.: 45