Mallappa Amrutapa Kabanur vs Mahantappa Amrutappa Kabanur
2021 Latest Caselaw 5457 Kant

                          1




 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

       DATED THIS THE 4TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

  REGULAR SECOND APPEAL NO.5921 OF 2012 (INJ)

BETWEEN:

MALLAPPA AMRUTAPPA KABANUR
AGED ABOUT 63 YEARS,
OCC: AGRIL, R/O. INGALAHALLI,
TALUK HUBLI,
DIST: DHARWAD.                         ...APPELLANT

(BY SRI.MALLIKARJUNSWAMY B.HIREMATH, ADVOCATE)

AND:

MAHANTAPPA AMRUTAPPA KABANUR
AGE: 48 YEARS, OCC: SERVICE & AGRIL,
R/O. INGALAHALLI, HUBLI TALUK - 592 681
WORKING AT KARWAR.
                                          ...RESPONDENT

(BY SRI.PRASHANT S. KADADEVAR,
    SRI MOHAN A. LIMBIKAI AND
    SRI SACHIN S. IRESHANAVAR, ADVOCATE)


       THIS RSA IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908.


       THIS RSA POSTED FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                2




                         JUDGMENT

Sri.Mallikarjunswamy B.Hiremath learned counsel for

appellant and Sri.Prashant S.Kadadevar learned counsel for

respondent have appeared in person.

2. This appeal is from the Court of the First Addl.

Senior Civil Judge, Hubli.

3. Appeal is posted for Admission after issuing

notice to respondents.

4. For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

5. The short facts are stated as under:

The suit property is landed property measuring 24

acres and 7 guntas in Block No.526 situated at Ingalahalli

Village in which 4 acres and 7 guntas of land is situated on

the northern side. The plaintiff and defendant are brothers

and they have divided their ancestral and joint family

properties between them. It is said that the plaintiff is

Government servant and determined to purchase a land at

his native Village Ingalahalli out of the money accumulated

from the salary hence he requested defendant to join hands

for purchasing the land jointly. Accordingly, both plaintiff

and defendant purchased the suit property for Rs. 45,101/-

(Rupees Fourty five thousand one hundred and one only)

from one Gopalkrishna Saunsta Gondavalli on 20.07.1989.

Both of them cultivated the land. It is said that the

defendant made hectic efforts to enter his name in the

record of rights. Plaintiff demanded partition but defendant

refused hence, suit for partition was filed.

In response to the suit summons, the defendant

appeared through his counsel and filed written statement.

He denied the plaint averments. It was contended that

there was amicable settlement between the plaintiff and

defendant in respect of the suit property and the plaintiff

has given up his rights in respect of the suit property and

has executed a deed on 31.08.1999. It is also contended

that the plaintiff has voluntarily given up his rights hence

plaintiff has not right over the suit schedule property.

Among other ground he prayed for the dismissal of the suit.

Based on the above pleadings, the Trial Court has

framed the following issues.

1. Whether the plaintiff proves that himself and defendant jointly purchased suit property?

2. Whether the defendant proves that the plaintiff by executing deed dt.31-08-1999 relinquished his right over suit property in his favour?

3. Does he prove that suit is bad for non-joinder of necessary parties?

4. Does he prove that plaintiff not included all properties of family and hence suit is not maintainable?

5. What decree or order?

To substantiate the claim, plaintiff got examined

himself as PW1 and produced three documents which were

marked as Ex.P.1 to Ex.P.3. On the other hand, defendant

got examined himself as DW.1 and produced eight

documents which were marked as Ex.D1 to Ex.D8.

On the trial of the action, the suit of plaintiff's came to

be partly decreed holding that the plaintiff is entitled for half

share in the suit schedule property. The relief of permanent

was rejected. Aggrieved by the judgment and decree, the

defendant preferred appeal before the First Appellate Court.

On appeal, the judgment and decree of the trial Court was

confirmed. Hence, this regular second appeal is filed under

Section 100 of CPC is filed.

Sri. Mallikarjunswamy B. Hiremath, learned counsel

for appellant submits that the judgment and decree of both

the courts are contrary to facts, law and evidence on

record.

Next, he submitted that both the courts have erred in

not considering that suit for partial partition is not

maintainable.

A further submission was made both the courts have

erred in concluding that the property is jointly purchased by

plaintiff and the defendant and that the plaintiff is entitled

for ½ share. It is also submitted that the suit ought to have

been dismissed for non-joinder of necessary parties.

Counsel vehemently contended that both the courts

ought to have adjudicated the nature of property.

Lastly, he submitted that viewed from any angle the

judgment and decree of both the Courts lacks judicial

reasoning. Hence the appeal may be admitted by framing

substantial questions of law.

Sri. Prashanth S. Kadadevar, learned counsel for

respondent justified the judgment and decree passed by the

Courts below.

Counsel vehemently submitted that both the courts in

extenso referred to the material on record and decreed the

suit. The appellant has not made out any good grounds to

interfere with the judgment and decree of both the courts.

No substantial questions of law are involved. Hence the

appeal may be dismissed at the stage of admission itself.

Heard the contentions urged on behalf of respective

parties.

The suit giving rise to this appeal was filed by the

plaintiff for partition and separate possession.

It contended by the plaintiff that the family properties

have been divided long back and entries in the revenue

records were also shown separately in their respective

names. The suit property was purchased by him and his

brother- the defendant jointly.

The defendant tried to enter his name in the records,

hence plaintiff intimated the authority concerned stating

that the property is joint property. The defendant tried to

assert that the plaintiff has relinquished his rights. Hence,

he is not entitled for share.

The short point which requires to be considered is

whether plaintiff is entitled or a share in the suit property.

As already noted, it is the specific case of the plaintiff that

the suit property was purchased jointly. It is relevant to

note that the said factual aspect has been admitted by the

defendant in his cross examination.

The trial court referred to the following documentary

evidence.

Ex P-1 is the Record of Rights of Block No.526. It

depicts that the property is in name of both the plaintiff and

the defendant.

Ex P-2 is the certified copy of the sale deed in respect

of the suit schedule property which depicts the property was

jointly purchased.

The defendant asserted that the plaintiff has

relinquished his right over the suit schedule property. But

there is nothing on record to show that plaintiff has done

so.

It is significant to note that the trial court in extenso

referred to the oral and documentary on record and

concluded that both the plaintiff and defendant have jointly

purchased the property and held that plaintiff is entitled for

half share in the suit schedule property. Accordingly, the

suit was decreed holding that the plaintiff is entitled for

½ share. The defendant preferred appeal before the First

Appellate Court. The First Appellate Court has examined the

evidence on record and reappraised it. I am satisfied it has

been appreciated in the correct perspective.

It is needless to say that interference with a finding of

a fact by the High Court is not warranted if it involves

re-appreciation of the evidence. Where on the basis of

evidence on record the trial court and the First Appellate

Court had concurrently arrived at a finding of fact, the High

Court in second appeal cannot reverse the said concurrent

findings under ordinary circumstances.

Under Section 100 of Code of Civil Procedure, 1908

(as amended in 1976) the jurisdiction of the High Court to

interfere with the judgment of the court below is confined to

hearing on substantial questions of law.

It is perhaps well to observe here that the after the

1976 amendment, the scope of Section 100 of CPC has

been drastically curtailed and narrowed down. The High

Court would have jurisdiction of interfering under Section

100 of CPC only in a case where substantial question of law

is involved and those questions have been clearly

formulated in the memorandum of appeal.

In my considered view no substantial questions of law

arise for consideration in this second appeal. Hence, the

appeal is dismissed at the stage of admission.

Sd/-

JUDGE

TKN/VMB-1