Sri N Ramachandra vs Sri N Krishna Murthy
2021 Latest Caselaw 1188 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 19TH DAY OF JANUARY, 2021

                              BEFORE

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

        REGULAR SECOND APPEAL NO.543 OF 2015

Between:

Sri N Ramachandra
Since deceased by his LRs.

Represented by his Power of
Attorney Holder and brother
Sri N Jayaram

     1a. Smt. K Saraswathi
         W/o late N Ramachandra
         Aged about 58 years

     1b. Sri R Veerabhadresha
         S/o late N Ramachandra
         Aged about 38 years

     1c. Smt. R Prathima
         D/o late N Ramachandra
         W/o Puttamadhu

           All are R/at No.1,
           I Cross, I Block
           Dr. Shanthakumar Layout
           Nagainapalya, Maruthisevanagar
           Bengaluru-560 033.

                                                ...Appellants
(by Shri V F Kumbar, Advocate)
                                  2




And:

Sri N Krishnamurthy
S/o late B Nagappa
Aged about 75 years
R/o Cheemasandra Village
Bidarahalli Hobli
Bengaluru East Taluk
Bengaluru-560 049.
                                                      ...Respondent
(by Shri K. V. Narasimhan, Advocate)

      This Regular Second Appeal is filed under Section 100 of
the Code of Civil Procedure against the judgment and decree
dated 05.02.2014 passed in RA.No.30 of 2013 on the file of the
Principal District Judge, Bengaluru Rural District, Bengaluru,
dismissing the appeal and confirming the judgment and decree
dated 04.10.2012 passed in OS.No. 1219 of 2010 on the file of
the II Additional Senior Civil Judge, Bengaluru Rural District,
Bengaluru.

      This Appeal coming on for admission, this day, the court
delivered the following:

                         JUDGMENT

Appellants herein, who are the legal representatives of the

original plaintiff-late N. Ramachandra, are challenging the

judgment and Order dated 05th February, 2014 passed in

Regular Appeal No.30 of 2013 passed by the Principal District

Judge, Bangalore Rural District, Bangalore whereby the

judgment and decree dated 04th October, 2012 passed in

Original Suit No.1219 of 2010 by the II Additional Senior Civil

Judge, Bangalore (Rural) District, Bangalore came to be

confirmed.

2. For the sake of convenience, the parties in this appeal

are referred to as per their status before the trial Court.

3. The averments in the plaint are that the plaintiff and

defendants are relatives and the suit schedule property is the

ancestral property of the plaintiff. The plaintiff further stated

that he came to know about the fact that the defendant is

negotiating to sell the suit schedule property through villagers

and thereby he made an enquiry and came to know that by

virtue of registered General Power of Attorney dated 24th

January, 2004 alleged to have fabricated by the defendant and

based upon the General Power of Attorney, defendant intends to

sell the suit schedule property and accordingly, he filed

complaint before the jurisdictional police and thereafter, the

plaintiff filed Original Suit No.1219 of 2010 on the file of the II

Additional Senior Civil Judge, Bangalore (Rural) District and

sought for relief of declaration and injunction against the

defendant. The defendant entered appearance and filed detailed

written statement contending that the suit schedule property

was originally belonging to one Muniyappa and the said

Muniyappa and his children sold the same in favour of one

Mastan Sab through registered sale deed dated 17thJune, 1960.

It is further averred in the written statement that prior to the

execution of sale deed dated 17th June, 1960, defendant's

father-Nagappa was given in possession by Muniyappa and

pursuant to purchase of suit schedule property by Mastan Sab,

Nagappa was continued in possession of the suit schedule

property and thereafter, the said Mastan Sab sold the suit

schedule property in favour of the father of the defendant-

Nagappa. After the death of Nagappa, defendant became

absolute owner in possession of the suit schedule property and

pursuant to the same, revenue entries have been mutated in

favour of the defendants and therefore, the defendant submitted

that the claim made by the plaintiff with regard to declaration is

not maintainable and therefore, sought for dismissal of the suit.

4. After considering the pleadings of the parties, the trial

Court has framed issues for its consideration. The plaintiff has

examined his power of attorney holder-N Jayaram as PW1 and

produced 23 documents and same were marked as Exhibits P1

to P23. Defendant has not produced any evidence before the

trial Court. The trial Court, after considering the material on

record and on appreciation of oral and documentary evidence on

record, dismissed the suit by its Judgment and decree dated

04thOctober, 2012. Being aggrieved by the judgment and decree

passed by the Court below, the plaintiff preferred Regular Appeal

No.30 of 2013 on the file of the Principal District Judge,

Bangalore (Rural) District. The First Appellate Court, after

formulating the points for consideration, as per paragraph 7 of

the judgment and Order, dismissed the appeal and thereby

confirmed the judgment and decree dated 04thOctober, 2012

passed by the trial Court. Being aggrieved by the judgments

and decree passed by the Courts below, the plaintiff-appellant

has preferred the instant appeal. During the course of the

proceedings the plaintiff-appellant died and his Legal

Representatives have been brought on record.

5. Heard Shri V.F. Kumbar, learned counsel appearing for

the appellants. He contends that the First Appellate Court has

not properly re-appreciated the documents and oral evidence

adduced by the appellants and on an erroneous assumption,

confirmed the judgment and decree passed by the trial Court.

He further contended that the finding recorded by the trial Court

disbelieving the evidence of PW1-power of attorney holder of the

plaintiff on the ground that power of attorney holder is not

competent to depose with regard to the alleged fabrication and

creation of registered General Power of Attorney made in favour

of the defendant and thereby he submitted that the impugned

judgment and decree passed by the First Appellate Court

requires to be set aside in this appeal.

6. Shri K. V. Narasimhan, learned counsel for respondents

contest the appeal and supports the judgment and decree

passed by the courts below.

7. I have carefully examined the finding recorded by the

trial Court and perused the material on record. It is the case of

the plaintiff that the suit schedule property is an ancestral

property and his grievance is with regard to the alleged

registered power of attorney dated 07th February, 2004. It is the

case of the defendant that the suit schedule property originally

belonged to Muniyappa and the said property was sold to Mastan

Sab, who in turn, sold the same in favour of the father of the

defendant-Nagappa as per registered sale deed dated 17th June,

1960 and thereafter, revenue entries have been mutated in

favour of the defendant's father and pursuant to his death, the

defendant became the owner in possession of the suit schedule

property. Based on these pleadings, the plaintiff has examined

one N. Jayaram-PW1, being the power of attorney holder of the

plaintiff, who deposed about the genuineness of the registered

General Power of Attorney dated 07th February, 2004 in respect

of the suit schedule property. I have carefully examined the

finding recorded by the trial Court with regard to the said

registered power of attorney dated 07thFebruary, 2004 produced

as Exhibit P23. The trial Court, after considering the material on

record, as per its finding at paragraph 12 of the judgment and

decree dated 04th October, 2012, held that, as the plaintiff had

taken a plea of fraud in respect of Exhibit P23, the said alleged

fraud should be proved with the help of cogent evidence. In

order to prove the said document as fraud, the plaintiff has not

examined any independent witness to prove the photograph

available on Exhibit P23 which is that of one Vasanthappa, as

averred in the plaint as well as in his evidence. Therefore, the

finding recorded by the trial Court that the plaintiff has not

proved Exhibit P23, is based on the material on record and the

oral evidence adduced by PW1 and therefore, the said finding

recorded by the trial Court is just and proper. I have also

examined the finding recorded by the trial Court with regard to

possession whereunder Exhibit P17 is the RTC pertaining to suit

schedule property for the year 2005-2006. The trial Court,

having considered the documents on record, and taking note of

the evidence adduced by PW1 that the defendant has put up

construction over the suit schedule property based on Exhibits

P12 to P14 (photographs), has rightly rejected the claim of the

plaintiff with regard to the possession and as such, on

appreciation of evidence on record, dismissed the suit.

8. I have also carefully examined the finding recorded by

the First Appellate Court wherein the First Appellate Court has

re-appreciated the evidence on record, particularly, evidence of

PW1 and the documents made available before the trial Court

and has come to a conclusion that power of attorney holder-PW1

is not a competent person to depose on the veracity of Exhibit

P23, as the plaintiff had taken the plea in the plaint and also in

his evidence that Exhibit P23 is a fabricated document and to in

order to prove that Exhibit P23 is a fabricated document, no

cogent evidence was adduced. The First Appellate Court has

also made a judicial notice on the fact that the plaintiff has

signed the plaint in English, however, his signature found on

Exhibit P23 is in Kannada. Further, as per Exhibit P23, the age

of plaintiff was shown as 45 and the age of the defendant was

shown as 49 in Exhibit P23 in the year 2004 and the plaintiff has

filed the suit in the year 2007 wherein the age of the plaintiff

was shown as 71 and in that view of the matter, the First

Appellate Court, on re-appreciation of evidence on record and

documentary evidence, has rightly confirmed the judgment and

decree passed by the trial Court and thereby rejected the appeal

preferred by the plaintiff. In that view of the matter, I do not

find any material irregularity or perversity in the judgment and

decree passed by the courts below. Since the appellant has not

made out a case for formulation of any substantial question of

law as required under Section 100 of the Code of Civil Procedure,

the appeal is liable to be dismissed at the Admission stage itself.

9. In this regard, it is useful to refer to the judgment of

the High Court of Calcutta in the case of SRI BHADRESWAR

PANDIT AND OTHERS v. SMT. PUSPA RANI PANDIT reported in

AIR 1991 CALCUTTA 405 wherein at paragraph 8 of the

judgment, it is observed thus:

"...a finding of fact by the lower appellate court, whether concurrent with the lower Court or not, can be reconsidered in suitable cases on second appeal if the finding is on no evidence or non-consideration of proper evidence or omission to consider the entire evidence. In all such cases non-consideration of evidence would be a point of law within the scope of section 100 of the Civil Procedure Code. The point admits of different interpretations and there have actually been divergent interpretations but the ratio decidendi seems to be that in a second appeal evidence on facts can be reappraised in suitable cases to prevent the miscarriage of justice."

10. In the case of SAMIR KUMAR CHATTERJEE v.

HIRENDRDA NATH GHOSH reported in AIR 1992 CALCUTTA 120,

at paragraphs 8, 9 and 17 has observed thus:

"8. Be it stated here at the very outset that in a case of concurrent findings of fact by both the courts below, the scope of interference by the High Court is very limited and the High Court should not interfere with the concurrent findings of facts of the Courts below on the ground of perversity unless the court concerned misdirected itself In coming to its finding on the question of fact. Such concurrent finding of fact, however, as observed by the Supreme Court can be interfered with only where it is manifestly unjust or where the essential ingredients for such a finding of fact have not been found by the Courts below. It is true, in an ejectment suit a finding on the question whether the defendant is a tenant or a licensee, the finding of the lower appellate Court on a consideration of the evidence is a finding of fact.

Reference may be made in this connection to the decision of the Supreme Court . However, it has also been observed by the Supreme Court in another decision reported in AIR 1989 SC 1 that the question whether there is a tenancy or sub-tenancy or licence or parting with possession in any particular case, must depend upon the quality of occupation given to the licensee or the transferee. Of course, in the case referred to, dispute

arose regarding the occupation of a holder to display his holding and as such the vital question in that case was whether occupation itself will amount to a question of tenancy or that of a licence. Mere occupation is not sufficient to infer either sub-tenancy or parting with the possession. Facts of the instant case are somewhat different from the one referred to, as because parting of possession in favour of the defendant/appellant is an undisputed fact, though it is claimed on behalf of the plaintiff/ respondent that the respondent was in actual legal possession of the suit property. In other words it is sought to be urged and emphasised that the possession of the defendant/appellant was not exclusive possession in this case. It is, therefore, urged that although the defendant/appellant was permitted to occupy a room, it was the possession of a licensee.

9. In view of the contentions of the learned Advocate for the defendant/appellant, it will be necessary to see as to whether the possession which was given to the defendant/appellant was that of a licensee or that of a tenant. Further, in view of the points raised by the learned Advocate for the defendant/appellant, the entire relevant evidence on record is to be considered to see that the Courts below considered all such important evidence having direct bearing on the disputed issue. If, on such examination we find that the courts' below made such a mistake, then in that case this Court is fully authorised to set aside such finding. To make it clear

once again, it is true that High Court, while hearing second appeal under Sec. 100, C.P. Code, has not the jurisdiction to examine the evidence and reverse or reject the conclusion reached by the first appellate Court. But we should also bear in mind that it has the power to interfere with such finding, when the lower appellate Court made a mistake of the nature as stated, and can decide the issue, treating such finding as unwarranted and then it can be looked into as a substantial question of law. If any authority is needed on this point even after the amendment of 1976, we may refer to the decision, Dilbagrai Punjabi v. Sharad Chandra and also the decision of the Supreme Court , Bhairab Chandra Nandan v. Ranadhir Chandra Dutta.

10 to 16. xxx xxx xxx

17. As already stated, the first court of appeal, also approached the whole case from a wrong angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the defendant/appellant. In short, the appellate Court's judgment is also based on surmise and conjectures, as that of the trial Court. He simply brushed aside the documentary evidence adduced by the defendant/ appellant as suspicious in nature and placed no reliance on the same without carefully examining the same and trying to arrive at a finding based on his independent judgment and reasoning. He simply dittoed and endorsed the finding of the trial Court

that such documents were created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the same. In that view of the matter, I am constrained to observe that the court of appeal below failed altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil Procedure. The judgment of the appeal Court should not be the mere endorsement of the findings of the trial Court, not containing the reasons for the decisions arrived at by him independently of that of the trial Court."

11. The High Court of Patna in the case of GIRJA SINGH

AND ANOTHER v. GAYANWANTI DEVI AND OTHERS reported in

AIR 2001 PATNA 20, at paragraph 11 of the judgment, has

observed thus:

"Moreover, it has not been settled by recent judgment of the Apex Court that if the appellate Court does not advert to the reasonings given by the original court and writes an independent judgment on the basis of the materials on record and if the second appellate Court finds the same judgment to be proper on the basis of the materials then on the ground that the reasonings given by the original Court had not been considered by the appellate Court, cannot be a point for reserving the appellate Courts judgment as required under S.100 of the Code of Civil Procedure."

Hence, I pass the following:

ORDER

1. Appeal is dismissed;

2. Judgment and Order dated 05th February, 2014

passed in Regular Appeal No.30 of 2013 by the

Principal District Judge, Bangalore Rural District,

Bangalore confirming the judgment and decree

dated 04th October, 2012 passed in OS No.1219

of 2010 by the II Additional Senior Civil Judge,

Bangalore (Rural) District, Bangalore is affirmed.

Sd/-

JUDGE

lnn