Mr. Alex Pinto vs Mrs. Florine Moras
2021 Latest Caselaw 3117 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 06TH DAY OF AUGUST, 2021

                             BEFORE

            THE HON'BLE MR. JUSTICE E.S. INDIRESH

        REGULAR SECOND APPEAL NO.1667 OF 2017

BETWEEN:

Mr. Alex Pinto
S/o Gasper Pinto
R/at Kodi House
Post Agrar, Bantwal Kasaba Village
Bantwal Taluk-574 211
                                                    ...Appellant
(by Sri V Padmanabha Kedilaya, Advocate)

AND:

       1. Mrs. Florine Moras
          W/o Mr. Francis Pinto
          Aged about 50 years
          Bantwal-574 211.

       2. Francis Pinto
          Since dead represented by his LRs

         2a. Jeevan Roopesh Pinto
             S/o Francis Pinto
             Aged 24 years

         2b. Jaideep Roopesh Pinto
             S/o Francis Pinto
             Aged 22 years

         2c. Jean Rashmi Pinto
                                 2




            D/o Francis Pinto
            Aged 26 years

            Respondents 2a, 2b and 2c are
            R/at Agrar Church Road
            Jakribettu, Bantwal
            Kasaba Village,
            Bantwal Taluk,
            Dakshina Kannada District.
                                                  ...Respondents
(by Sri K Chandranath Ariga, Advocate for
 R1, 2(a) and (c);
 vide order dated 24.04.2019 notice to R2(b) held sufficient)

      This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure against the judgment and decree
dated 10.03.2017 passed in Regular Appeal No. 52 of 2007 on
the file of the Principal Senior Civil Judge, JMFC, Bantwal,
Dakshina Kannada, dismissing the appeal and confirming the
Judgment and decree dated 29.10.1999 passed in OS. No.464 of
1991 on the file of the Principal Civil Judge, (Jr. Dn) Bantwal,
Dakshina Kannada.

      In this appeal arguments being heard, judgment reserved,
coming on for "pronouncement of orders", this day, the Court
delivered the following:

                       JUDGMENT

This Regular Second Appeal is filed by defendant No.1

assailing the judgment and decree dated 10th March, 2017

passed by the Principal Senior Civil Judge and JMFC, Bantwal,

Dakshina Kannada in Regular Appeal No.52 of 2007 confirming

the judgment and decree dated 29th October, 1999 passed in

O.S No.464 of 1991 on the file of the Principal Civil Judge (Jr.

Dn.) at Bantwal, decreeing the suit of the plaintiff.

2. Rank of parties in this appeal is referred to with their

status before the trial Court.

3. Plaintiff filed a suit for partition and for mense profits in

respect of plaint 'A' schedule property into three equal share. It

is the case of plaintiff that 'A' schedule property was jointly

purchased by one late Coses D'Souza Bai along with one Berned

Menazes as per the registered sale deed dated 03rd February,

1972. It is further stated in the plaint that the said Berned

Menazes relinquished his rights in terms of Release Deed dated

29th December, 1999 in favour of Coses D'Souza. Pursuant to

release of rights, the said Coses D'Souza Bai became the

absolute owner of the schedule property. The said Coses

D'Souza Bai died on 29th December, 1978 leaving behind no

issues, however, the children of her sister Bridget D'souza viz.

defendant No.1, defendant No.2 and their elder sister Mrs. Lilly

Pinto. It is the case of the plaintiff that aforementioned three

children of the sister of Coses D'Souza Bai are entitled to one-

third share each in 'A' schedule property. It is also mentioned in

the plaint that Mrs. Lilly Pinto sold her one-third share to the

plaintiff under registered sale deed dated 19th February, 1987

and as such, the averments made in the plaint are that the

plaintiff became the owner of the one-third share in the plaint 'A'

schedule property and jointly held the same with defendants 1

and 2. It is further stated in the plaint that defendant No.1 won

over his brother defendant No.2 with an intention to knock off

plaint 'A' schedule property and thereby, not permitted the

plaintiff to enjoy her one-third share in the suit schedule

property, and the request made by the plaintiff was rejected by

defendants and as such, plaintiff has filed O.S No.464 of 1991

before the trial Court seeking relief of partition and

consequential relief.

4. On service of notice, defendant No.1 entered

appearance and filed detailed written statement denying the

averments made in the plaint. It is the defence of defendant

No.1 that Coses D'Souza Bai had no children and she has

fostered defendants 1 and 2 and in this regard, defendant No.1

has stated that he was sending money to Coses D'Souza Bai

during her lifetime. It is also stated in the written statement

that he had made huge investment in the suit schedule property

and since second defendant was unemployed and had no

avocation in life and as such, the said Coses D'Souza Bai

executed 'Will' dated 16th May, 1978 bequeathing schedule

properties in favour of second defendant. It is further stated in

the written statement that the aforementioned Will was executed

in accordance with law and by virtue of said Will, defendant No.2

became the absolute owner of the suit schedule property.

Defendant No.1 further contended that the said Coses D'Souza

Bai had mortgaged 'A' schedule property and thereafter, he got

the property released from mortgage in favour of second

defendant. Accordingly, the defendant No.2 sold suit schedule

property by executing registered sale deed dated 15th March,

1979 in favour of defendant No.1 and thereby, defendant No.1 is

in possession of the suit schedule property. It is further stated

in the written statement that the defendant No.2 had filed O.S

No.129 of 1982 on the file of Munsiff at Bantwal seeking relief of

prohibitory injunction against defendant No.1 and the said suit

ended up in a compromise, inter alia, the defendant No.1 filed

O.S. No.552 of 1987 on the file of the Munsiff, Bantwal, which

ended up with settlement among the parties. It is the main

contention of defendant No.1 that the plaintiff was aware of the

Will dated 16th May, 1978 executed by the Coses D'Souza Bai in

favour of defendant No.2 and therefore, the plaintiff is not

entitled for relief in this suit.

5. Defendant No.2, though served, unrepresented and

hence placed ex-parte. The trial Court, based on the pleadings

on record, formulated the following issues for its consideration:

1. Whether the plaintiff proves that the defendant Nos. 1 and 2 and Lilly Pinto were the only legal heirs of late Coses D'Souza Bai and that Lilly Pinto had 1/3rd right in the plaint 'A' schedule property?

2. Whether the plaintiff proves that Lilly Pinto has sold her right in the 'A' schedule property by means of the registered sale deed 19.2.1987 to her?

3. Whether the 1st defendant proves that he has invested large sum of money over the plaint 'A'

schedule property though Coses D'Souza Bai while he was in the Gulf country and that he has build house after 15.03.1979 by spending Rs.80,000/- in the said 'A' schedule property?

4. Whether the 1st defendant proves that late Coses D'Souza Bai has bequeathed the properties in the name of the 2nd defendant by means of a will dated 16.05.1978 and that the 2nd defendant has become the absolute owner on the basis of the said will?

5. Whether the 1st defendant proves that Coses D'Souza Bai had mortgaged the plaint 'A' schedule property to Bels Devadas Kamath and that the said mortgage was get released in favour of the 2nd defendant by the 1st defendant paying the amounts due under the mortgage?

6. Whether the 1st defendant proves that he has purchased the plaint 'A' schedule property from the 2nd defendant by means of a registered sale deed dated 16.03.1979 and has thus become the absolute owner of the said 'A' schedule property?

7. What is the correct income of the plaint 'A' schedule property?

8. Whether Dooja Moras is empowered to file the suit?

9. Whether the 1st defendant proves that the frame of the suit is not prepared and that a suit for a declaratory relief ought to have filed?

10. Whether the court fee paid is not correct?

11. No what relief the plaintiff is entitled to?

12. To what order and decree?

6. Plaintiff was examined as PW1 and she examined three

more witness as PW2 to PW4 and produced 13 documents and

same were marked as Exhibits P1 to P13. Defendant No.1 was

examined as DW1 and examined another witness as DW2 and

marked 46 documents as Exhibits D1 to D46. The trial Court,

after considering the material on record, by its judgment and

decree dated 29th October, 1999, decreed the suit and held that

the plaintiff, defendant No.1 and defendant No.2 are having one-

third share each in the suit schedule property and granted such

other reliefs. Being aggrieved by the same, the defendant No.1

filed Regular Appeal No.52 of 2007 before the First Appellate

Court and the same was resisted by the plaintiff. The First

Appellate Court, after considering the material on record, by

judgment and decree dated 10th March, 2017 dismissed the

appeal and being aggrieved by the same, the present second

appeal is filed by the defendant No.1.

7. Perusal of records would indicate that the defendant

No.1 has challenged the impugned judgment and decree dated

29th October, 1999 in O.S No.464 of 1991 in Regular Appeal

No.13 of 2000 (re-numbered as Regular Appeal No.52 of 2007)

and the First Appellate Court allowed the appeal filed by

defendant No.1 and being aggrieved by the same, plaintiff has

preferred Regular Second Appeal No.216 of 2009 before this

Court and the said second appeal came to be allowed on 15th

June, 2016, setting aside the judgment and decree of the First

Appellate Court and thereby, the matter was remanded to First

Appellate Court for fresh consideration. In terms of the order

passed by this Court on 15th June, 2016, the First Appellate

Court heard the matter and dismissed the appeal filed by

defendant No.1 and being aggrieved by the same, the present

second appeal is preferred by the defendant No.1.

8. I have heard Sri V. Padmanabha Kedilaya, learned

counsel appearing for appellant/defendant No.1 and Sri K.

Chandranath Ariga, learned counsel for respondents No.1, 2(a)

and 2(c).

9. Sri V. Padmanabha Kedilaya, learned counsel appearing

for appellant/defendant No.1 contended that the impugned

judgments and decree passed by the Courts below suffer from

infirmity on the ground that this Court while remanding the

matter to First Appellate Court in Regular Second Appeal No.216

of 2009, directed the First Appellate Court to give a finding on

Will-Exhibit D9 and same was not considered by the First

Appellate Court. He further contended that reference to Section

213 of the Indian Succession Act, 1925 was not warranted

before the First Appellate Court. He also contended that the

plaintiff has not challenged the compromise decree entered into

between defendant No.1 and 2 in O.S. No.129 of 1982 on the file

of the Munsiff, Bantwal seeking relief of prohibitory injunction

and also the judgment and decree in O.S. No.552 of 1987 on the

file of the Munsiff, Bantwal, which ended up with settlement

among the parties. He further contended that the defendant

No.1 has not proved the execution of Will (Exhibit D9) beyond

suspicion and therefore, the finding recorded by the Courts

below is required to be interfered with. It is further contended

that the trial Court failed to consider the veracity of the thumb

impression of the testator-Coses D'Souza Bai on the Will (Exhibit

D9) and as such, placing reliance on the judgments of the

Hon'ble Supreme Court in the case of THIRUVENGADAM PILLAI

v. NAVANEETHAMMAL AND ANOTHER (2008)4 SCC 530; LEELA

RAJAGOPAL AND OTHERS v. KAMALA MENON CHOCHARAN AND

OTHERS (2014)15 SCC 570; KANNIAN AND ANOTHER v.

SETHURAMA (2000)9 SCC 559; and in the case of HAFAZAT

HUSSAIN v. ABDUL MAJEED AND OTHERS (2001)7 SCC 189, he

argued that the finding recorded by both the Courts below

requires to be set aside in this appeal.

10. Per contra, Sri. Chandranath Ariga, learned counsel

appearing for respondents argued that the plaintiff is the wife of

the defendant No.1 and had purchased the suit schedule

property from Mrs. Lilly Pinto by virtue of sale deed 19th

February, 1987 and as such, the plaintiff is entitled for one-third

share in the suit schedule property. He further contended that

though the defendant No.1 has set up Will dated 16th May, 1978

after the demise of Coses D'Souza Bai on 29th December, 1978,

however, same has not come to light till the filing of the suit by

the plaintiff. He further contended that the first defendant being

a propounder of the Will dated 16th May, 1978, has failed to

prove the same as required under law and therefore, both the

courts below have rightly rejected the said contentions raised by

the defendant No.1. He further contended that the First

Appellate Court, taking into account the amendment made to

Section 213 of Indian Succession Act, 1925, whereunder by

Succession (Amendment) Act, 2002, the Parliament inserted

words "Indian Christians" after the word "Muhammadans", the

contentions raised by the appellant with regard to the same

cannot be accepted. He further contended that the trial Court,

after considering the entire material on record, has passed a

detailed order and thereafter, the First Appellate Court, after

remand by this Court in Regular Second appeal No.216 of 2009,

re-assessed the entire evidence on record and rightly dismissed

the appeal, which cannot be disturbed in this second appeal by

exercising power under Section 100 of Code of Civil Procedure as

no substantial question of law is required to be considered in this

appeal. To fortify his submissions, placing reliance on the

judgments of Hon'ble Apex Court in the case of C.

DODDANARAYANA REDDY (DEAD) BY LEGAL REPRESENATIVES

AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LEGAL

REPRESENTATIVES AND OTHERS reported in (2020)4 SCC 659

and in the case of NARESH AND OTHERS v. HEMANT AND

OTHERS rendered in Civil Appeal No.8859 of 2019 decided on

19th November, 2019, he argued that the appeal deserves to be

dismissed.

11. Having heard the learned counsel appearing for the

parties, I have perused the original records. Perusal of the

finding recorded by the trial Court establish the fact that the

defendants 1 and 2 are the brothers and they had a sister by

name Lilly Pinto. Plaintiff is the wife of defendant No.2.

Originally, the suit schedule property belong to Coses D'Souza

Bai and she died on 29th December, 1978, leaving behind

defendants 1 and 2 and Lilly Pinto who were the children of

Bridget D'Souza (sister of Coses D'Souza Bai). The claim of

plaintiff is that the suit schedule property belonged to Coses

D'Souza Bai and same devolved to the defendants and Lilly Pinto

equally. The plaintiff purchased one-third share of Lilly Pinto as

per registered sale deed dated 19th February, 1987 and as such,

relief is sought for by the plaintiff that she is entitled for one-

third share in the suit schedule property. The main contention of

the plaintiff is that she got one-third share in the suit schedule

property, but the same is denied by the defendant No.1.

Admittedly, defendant No.2 who happens to be the husband of

the plaintiff, has not contested the matter. The main defence of

the defendant No.1 is that the said Coses D'Souza Bai died on

29th December, 1978 leaving behind the Will dated 16th May,

1978 (Exhibit D9) bequeathing the suit schedule property in

favour of the defendant No.2 and thereafter, the defendant No.2

executed registered sale deed in favour of defendant No.1 on

15th March, 1979 and in that view of the matter, the plaintiff is

not entitled for any share in the property. The trial Court, after

considering the material on record, while answering issues 1 to

11, had come to conclusion that defendants and Lilly Pinto were

entitled to one-third share in the plaint schedule property and

pursuant to the registered sale dated 19th February, 1987, the

plaintiff became the absolute owner of the one-third share in the

plaint suit schedule property. Relationship between the parties

is not disputed and the Registered sale deeds referred to above

are right in rem and is binding on the parties. Though defendant

No.1 propounded the Will dated 16th May, 1978, however, failed

to prove the same with cogent evidence as required under

Sections 63 of the Evidence Act and 68 of the Indian Succession

Act. I have meticulously examined the finding recorded by the

trial Court with regard to the registered sale Deeds referred to

above and the unregistered Will dated 16th May, 1978.

Undisputably, Coses D'Souza Bai died on 29th December, 1978

and perusal of the entire written statement would not indicate

any reason as to why the defendant No.1 has not whispered

about the Will dated 16th May, 1978 till the filing of the suit by

the plaintiff. In this regard, I have carefully examined the

evidence of DW1 and DW2. The testimony of these witnesses

remain unanswered with regard to the same. It is the case of

the defendant No.1 that he was in Gulf country and used to send

money to Coses D'souza Bai. If the said averment is accepted in

toto, then the question is, why the said Coses D'Souza Bai has

executed the Will bequeathing the property to defendant No.2.

The documents produced by the defendant No.1 at Exhibits D23

to 26 are the Municipality Receipts and Tax paid Receipts and

also the letters written by the defendant No.1 while he was in

Gulf country, and the same cannot be taken as a basis to

consider that the deceased Coses D'Souza Bai had love and

affection towards defendants 1 and 2 and no documents to show

that defendant No.1 was sending money to Coses D'Souza was

proved before the Court with cogent documents. In this regard,

I have also carefully considered the ledger extract at Exhibit D40

and same do not disclose the fact that the defendant No.1 was

sending money to Coses D'souza Bai and therefore, since the

defendant No.1 fails to prove the Will as stated above and also in

the light of the sale deed dated 19th February, 1987 executed by

Lilly Pinto in favour of the plaintiff, I am of the considered view

that the trial Court rightly decreed the suit conferring one-third

share in favour of the plaintiff. I have also examined the finding

recorded by the First Appellate Court. As stated above, this

Court, on the earlier occasion, remanded the matter to the First

Appellate Court as per Order dated 15th June, 2016 and

thereafter, the First Appellate Court, has re-appreciated the

entire material on record and taking into account the provisions

contained under Section 213 of the Indian Succession Act, held

that the finding recorded by the trial Court is just and proper. In

this regard, the amendment of Section 213 of the Indian

Succession Act made in the year 2020, discloses that the

Parliament has inserted words "Indian Christians" after the word

"Muhammadans" and therefore, granting of Probate is not

mandatory. Perusal of Section 213 of the Indian Succession Act,

indicates that Section 213(1) of the said Act shall apply except in

those cases which are exclusively excluded in Section 213(2)

and in view of insertion of the words "Indian Christians" by

virtue of amendment, the contentions raised by the learned

counsel for the appellant cannot be accepted. I have also

noticed that the defendant No.1 has raised a plea regarding the

Will dated 16th May, 1978 and same was not proved as per

Section 63 of the Indian Succession Act and Section 68 of the

Indian Evidence Act. In this regard, the law declared by the

Hon'ble Supreme Court in the case of H. VENKATACHALA

IYENGAR v. B.N. THIMMAJAMMA AND OTHERS reported in AIR

1959 SC 443 can be noticed with benefit. In the said judgment,

the Hon'ble Supreme Court has laid down the guidelines for

validating testamentary disposition. The same reads thus:

"What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose

of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will.

This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would

be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters."

12. Further, at paragraph 22 of the said judgment the

Hon'ble Supreme Court has observed thus:

"22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that it there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."

13. I have also gone through the decisions relied upon by

the learned counsel appearing for the appellant with regard to

considering the thumb impression on the Will. The judgment

rendered by the Apex Court in the case of THIRUVENGADAM

PILLIAI (supra) is not applicable to the case on hand, as the

Court below has considered the evidence of the parties and

visualised the signature/thumb impression in the Will and rightly

come to the conclusion that the defendant No.1 failed to

establish the said Will. The First Appellate Court, after re-

appreciating the entire material on record, rightly held that the

execution of the Will dated 16th May, 1978 is surrounded with

suspicious circumstances taking into entire material on record

wherein the defendant No.1 has stated that he was looking after

the well-being of the testator-Coses D'Souza Bai and on the

other hand, deposed that the Will was executed in favour of the

defendant No.2 by said Coses D'Souza Bai out of love and

affection and during the said period, defendant No.1 was

residing at Gulf Country and thereafter, acquired the schedule

property from defendant No.2 through registered sale deed

dated 15th March, 1979, which would clearly establish the fact

that the Will dated 16th May, 1978 is set up by the defendant

No.1 to deny the legitimate one-third share of the plaintiff and

as such, the contentions raised by the learned counsel appearing

for the appellant cannot be accepted. The First Appellate Court

has considered the entire material on record on all counts, re-

appreciated the evidence being a last Court for fact finding, and

has rightly dismissed the appeal. For foregoing reasons, I am of

the considered view that both the courts below have held against

the appellant on merits, taking into account the facts in its

entirety, so also applying the established principle of law by

Apex Court, and in that view of the matter, the judgments

referred to by the appellants are not applicable to the facts on

hand.

14. Further, I am also conscious that the power to be

exercised by this Court under Section 100 of Code of Civil

Procedure is limited and second appeal be accepted only if the

Courts below have ignored the material evidence or acted as no

evidence and had come to conclusion drawing wrong inferences.

In this regard, as rightly pointed out by the learned counsel

appearing for the respondent, the law declared by the Hon'ble

Supreme Court in the case of C. DODDANARAYANA REDDY

(supra) is aptly applicable to the case on hand. It is settled

principle of law that even if two inferences are possible in a

given set of circumstances, the finding recorded by the lower

appellate court is binding on the high Court. In this regard, it is

relevant to deduce the observation made by the Hon'ble

Supreme Court in the case of C. DODDNARAYANA REDDY

(supra) at paragraphs 25 and 26 of the judgment. The same

read thus:

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris- Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC

392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section

100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC

166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a re- appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors.9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it

is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

15. It is also relevant to mention that the Apex Court in

the case of NARESH (supra), has held that the High Courts

should be slow and cautious while interfering with the concurrent

finding on facts by the courts below, in exercise of powers under

Section 100 of Code of Civil Procedure. In the instant case, both

the courts below, on facts and law, have appreciated and re-

appreciated the entire material on record and have arrived at a

conclusion, which cannot be interfered with by exercising power

under Section 100 of Code of Civil Procedure.

In the result, I pass the following:

ORDER

i) Appeal dismissed;

ii) Judgment and decree dated 10.03.2017 passed in Regular Appeal No. 52 of 2007 on the file of the Principal Senior Civil Judge, JMFC, Bantwal, Dakshina Kannada, dismissing the appeal and confirming the Judgment and decree dated 29.10.1999 passed in OS No.464 of 1991 on the file of the Principal Civil Judge, (Jr. Dn) Bantwal, Dakshina Kannada, is confirmed.

Sd/-

JUDGE

lnn