Swamy vs Smt M S Shashikala
2021 Latest Caselaw 888 Kant

                               1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 15TH DAY OF JANUARY 2021

                           BEFORE

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

        REGULAR SECOND APPEAL NO.184 OF 2018

BETWEEN:

1.     Swamy
       Since dead represented by LRs

1(a). Kemrajama,
      W/o. Late Swamy
      Aged about 55 years,
      Occ: House Wife,

1(b). Naveen
      S/o. Late Swamy
      Aged about 27 years,

       Both are R/o. Somegowda Beedi,
       Maddur Town,
       Mandya District-571428.

       (Amended cause title as per the
        court order dated 17.10.2019)
                                            ... Appellants
(By Smt. Archana Murthy P., Advocate)


AND:

1.     Smt. M.S.Shashikala
       D/o. Siddegowda &
       W/o. Mariswamy,
       Aged about 42 years,
       R/at No.16/1, 1st Main,
       M.M.Road, New Extension,
                                2


     Bytarayanapura, Mysore Road,
     Bengaluru-26.

2.   Smt. D. Sheela,
     W/o. M.S.Somashekar,
     Aged about 40 years,
     R/o. Teachers Colony,
     Maddur Town & Taluk,
     Mandya District-571428.

3.   Siddegowda
     S/o. Keelarikadegowda,
     Aged about 61 years,

4.   M.S.Siddaraju,
     S/o. Siddegowda,
     Aged about 38 years,

     R3 & R4 are
     R/o. Somegowdara Street,
     Maddur Town,
     Mandya District-571428.

5.   Pylvanchannegowda
     S/o. Kendegowda,
     (expired on 22.09.2020
      His LRs are R6 to R9)

6.   Surendra
     S/o. Pylvanchannegowda,
     Aged about 38 years,

7.   Ravindra
     S/o. Pylvanchannegowda,
     Aged about 36 years,

8.   Gajendra
     S/o. Pylvanchannegowda,
     Aged about 34 years,

9.   Smt. Jayalakshmi
     D/o. Pylvanchannegowda,
                                 3


      Aged about 42 years,

      R5 to R9 are
      R/at Doddamalluru Village,
      Channapatna Taluk,
      Ramnagar District-571426

10.   Jayarama,
      Since dead by LRs

10(a).   Gowramma
         W/o. Late Jayarama
         Aged about 51 years,
         Occ: House Wife,

10(b).   Sampath Kumar
         S/o. Late Jayarama
         Aged about 35 years,

10(c).   Sharmila
         D/o. Late Jayarama
         Aged about 20 years,

         R10(a) to R10(c) are
         R/o. Somegowda Beedi,
         Maddur Town,
         Mandya District-571428.

      (amended cause title as per the
       Court order dated 6.10.2020)
                                             ... Respondents

(By Sri. Sharath S. Gowda, Advocate for R1 & R2,
 R3 to R9, R10(a) to (c) - served & unrepresented)

      This RSA is filed under Section 100 of CPC, against the
judgment and decree dated 24.11.2017 passed in
RA.No.3/2017 on the file of the II Additional District and
Sessions Judge, Mandya, dismissing the appeal and
confirming the judgment and decree dated 17.08.2016 passed
in OS.No.68/2012 on the file of the Senior Civil Judge,
Maddur.
                                4



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

                       JUDGMENT

This appeal is preferred by defendant No.3 in Original

Suit No.68/2012 on the file of the court of Senior Civil Judge,

Maddur and the appellant No.1 in Regular Appeal No.3/2017

before the II Additional District and Sessions Judge, at

Mandya. During the pendency of this appeal, appellant died

and his legal representatives were brought on record.

2. For the sake of convenience, the parties shall be

referred to in terms of their status and ranking before the trial

Court.

3. The plaint averments are that Late Kilari Kadegowda

was the original propositus and he had three sons and one

daughter viz., Prema, Siddegowda, Swamy and Jayarama. It

is further stated in the plaint that Late Kilari Kadegowda died,

in the year 1980, intestate and after the death of said Kilari

Kadegowda, his second son-Swamy (defendant No.3) who is

the appellant in this appeal, was managing the joint family

properties of Late Kilari Kadegowda as karta of the joint

family; and the suit schedule properties are ancestral and

joint family properties of the plaintiffs and the defendants. It

is further averred in the plaint that defendant no.1 being the

father of the plaintiffs, had totally neglected the welfare of his

daughters, who are the plaintiffs herein and thereby, the

defendants by colluding with each other interalia ignored the

rights of the plaintiffs and tried to defeat the vested right of

the plaintiffs in respect of the suit schedule property and

thereby the plaintiffs have filed O.S.No.68/2012 on the file of

the Senior Civil Judge, Maddur for relief of partition and

separate possession. After service of summons, defendants 1

and 2 appeared, however, have not filed written statement.

The defendant no.5 did not appear and as such he was placed

ex-parte. The defendants no.3 and 4 have appeared and filed

written statement denying plaint averments. Defendant no.6

to 9 have adopted the written statement made by defendant

no.3 and 4. It is the case of the defendants no.3 and 4 in the

written statement that there was an oral partition in the

family of Late Kilari Kadegowda in the year 1983 and in the

presence of panchayatdars and item No.1 and 3, which are

immovable properties, fell to the share of defendant no.3. It

is further stated in the written statement that, item No.2 was

allotted in favour of defendant no.1 and item No.4 was

allotted to the share of defendant no.4 and as such, it is the

case of defendant no.3 and 4 before the trial court that as per

the averments made in the written statement, there was oral

partition among the legal representatives of Late Kilari

Kadegowda, i.e., the plaintiffs and defendants in the suit and

thereby the plaintiff no.1 and 2, who were the children of

defendant no.1, are not entitled for any relief as sought for in

the plaint. Based on the pleadings referred to above, the trial

court has framed issues for its consideration.

4. In order to prove the case, plaintiff no.1 was

examined as PW-1 and the plaintiffs have examined an

independent witness Sri. Shivalingaiah, PW-2. The plaintiffs

have produced six documents, which are marked as Ex.P.1 to

6. Defendant no.3 was examined as DW-1 and another

independent witness was examined as DW-2. Defendants

have not produced any documents before the trial Court. The

trial Court, after considering the material on record and on

appreciation of the oral and documentary evidence produced

by the parties, by its judgment and decree dated 17.08.2016,

decreed the suit in part and ordered that the parties are

entitled for 5/64th share in the suit schedule property by

metes and bounds. The trial court further ordered that the

defendants 1, 3 and 4 are entitled for 5/16th share each in the

suit schedule property and also the defendant No.2 is entitled

for 5/64th share in the suit schedule property by metes and

bounds, inter alia, it was ordered that defendants No.5 to 9

are jointly entitled for 1/16th share in the suit schedule

property. Being aggrieved by the judgment and decree

passed by the trial Court, defendants 3 and 4 have preferred

Regular Appeal No.3 of 2017 on the file of the II Addl. District

and Sessions Judge, Mandya. The said appeal was resisted by

the plaintiffs. However, respondents 3 to 9 before the first

Appellate Court were placed ex-parte. The first Appellate

Court, after considering the material on record and on re-

appreciation of the evidence, by its judgment and decree

dated 24th November, 2017, dismissed the appeal and thereby

confirmed the judgment and decree passed by the trial Court,

however, altered the share of the parties. The first Appellate

Court has also rejected I.A.2 filed by the appellants under

Order XLI Rule 27 CPC. Being aggrieved by the judgment and

decree passed by the court below, defendant no.3 has

preferred this second appeal.

5. I have heard Smt. Archana Murthy P., learned

counsel appearing for the appellant and Sri. Sharath S.

Gowda, learned counsel appearing for respondents 1 and 2.

6. Smt. Archana Murthy, learned counsel for the

appellant submitted that the respondent No.1(plaintiff) has

categorically admitted in the cross-examination that she is not

aware about the earlier partition entered into between the

brothers, viz. Siddegowda (defendant No.1), Swamy

(defendant No.3) and Jayarama (defendant No.4). She

further contended that the court below has not taken into

consideration the oral partition among the defendants No.1, 3

and 4 and pursuant to the said oral partition, revenue entries

have been mutated in favour of the respective children of late

Kilari Kadaiah, who died during 1980. She further contends

that none of the brothers of defendant No.3 have denied the

oral partition and thereby, plaintiffs have filed a collusive suit

before the Court below and the said aspect of the matter was

not considered by the Courts below and therefore, the finding

recorded by the Courts below is required to be set aside.

7. Per contra, Shri Sharath Gowda, learned counsel for

the respondent No.1 and 2 vehemently contended that the

defendant No.3, though, has alleged about the oral partition

in the joint family property of Kilari Kadaiah, however, no

cogent evidence has been adduced by defendant No.3 and 4

before the Courts below and therefore, he contends that the

finding recorded by the Courts below are just and proper,

which cannot be interfered with by exercising jurisdiction

under Section 100 of the Code of Civil Procedure.

8. I have carefully examined the finding recorded by

the Courts below. The genealogical tree of the joint family of

Kilari Kadaiah as provided in the suit is as follows:

GENEALOGICAL TREE Kilari Kadaiah (dead) Tayamma (dead)

1. Prema 2. Siddegowda (55) 3. Swamy (53) 4. Jayarama (51) (dead) Sarojamma(50) Kempajamma (43) Gowramma(40)

1. M.S. Shashikala (36) 2. D. Sheela (34) 3. M.S. Siddaraju Married Married un-married

9. Relationship between the parties is not disputed.

However, the controversy in these proceedings are with

regard to the contentions raised by defendant No.3/appellant

that the execution of the oral partition held in the year 1983

between the members of the joint family. The first Appellate

Court, upon re-appreciation of the finding recorded by the

trial Court on issues No.1 and 2, whereunder the trial Court,

after considering the evidence of PW2 and DW2; and on close

scrutiny of the evidence of DW1, had recorded a finding that

the contesting defendant i.e. Defendant No.3, has not proved

the alleged oral partition said to have been entered into

between the joint family members. The cross-examination of

DW1, would indicate that though defendant No.3 alleged

about the oral partition, however in support of the same, he

has not adduced any cogent evidence to prove the factum of

oral partition.

10. Perusal of the said deposition of DW1 would

support the case of the plaintiff that the schedule properties

are the joint family properties of late Kilari Kadaiah and

pursuant to the death of his father (Kilari Kadaiah), defendant

No.3-appellant was managing the affairs of the property of

the joint family and with regard to joint holding of the

properties. However, close scrutiny of the evidence of DW1

and DW2 would indicate the fact that the revenue entries

have been made in the documents referred to at Exhibits.P2

to P5, but the defendant No.3/appellant fails to produce any

cogent reason for the basis on which the revenue authorities

have mutated the revenue records and entered the name of

defendant No.3 in those documents. Since the defendants

have failed to substantiate their contention regarding the

alleged previous partition as well as the severance of the joint

family status in respect of the suit schedule items, inter alia,

the defendant No.1, though appeared before the Court, did

not contest the lis and in that view of the matter, the reasons

assigned by the trial Court while holding share of the plaintiff

in respect of the joint family of Kilari Kadaiah is just and

proper. Considering the finding as well as the evidence of the

parties in totality, it can be clearly inferred that there is an

existence of joint family and the suit schedule property

remained as joint family property, as averred and proved by

the plaintiffs and thereby, though the defendants have

resisted the claim of the plaintiffs on the ground of existence

of oral partition, however, they have failed to prove the same

by adducing oral and documentary evidence and in that view

of the matter, the finding recorded by the trial Court is just

and proper.

11. I have also carefully examined the finding recorded

by the first Appellate Court. Before the First Appellate Court,

the defendant No.3, who had preferred the appeal, has filed

an application under Order XLI Rule 27 of the Code of Civil

Procedure to produce additional evidence, i.e. three patta and

receipt books, four RTC extracts and two Mutation Register

extracts. I have carefully examined those documents in the

light of the finding recorded by the trial Court, as well as the

consideration of those documents by the first Appellate Court.

The finding recorded by the first Appellate Court that the RTC

extracts sought to be produced by defendant No.3/appellant

herein, were already marked on behalf of the plaintiffs as

Exhibit P2 to P5 and the patta receipt books indicate the

details regarding the extent of land as shown in the RTC

extracts and therefore, the finding recorded by the first

Appellate Court rejecting the additional evidence produced

thereunder is within the purview of Order XLI Rule 27 of the

Code of Civil Procedure and the principles enunciated by this

Court as well as the Hon'ble Supreme Court.

12. I have also scrutinised the finding recorded by the

first Appellate Court which is the last court insofar as finding

of fact is concerned, whereunder, the first Appellate Court at

paragraphs 20 and 22 of the judgment has re-assessed the

evidence of PW1 and PW2 and the documents filed by the

parties before the trial Court as well as the admission made

by DW1 and paragraph 3 of the cross-examination, which

reads as under:

"£ÀªÀÄä PÀÄlÄA§zÀ d«ÄãÀÄUÀ½UÉ ¸ÀA§AzsÀlÖAvÉ FUÀ®Æ ¸ÀºÀ MAzÉà ¸ÀªÉð n¥Ààt ªÀÄÄAzÀĪÀgÉzÀÄPÉÆAqÀÄ §gÀÄvÀÛ EzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ EgÀ§ºÀÄzÀÄ. £À£ÀUÉ UÉÆwÛ®è J£ÀÄßvÁÛgÉ. £ÁªÀÅ 3 d£À CtÚ vÀªÀÄäA¢gÀÄ zÁªÁ ¸ÀévÀÄÛUÀ¼À£ÀÄß «¨sÁUÀ ªÀiÁrPÉÆArzÉÝÃªÉ JA§ÄzÁV £ÀªÀÄä °TvÀ ºÉýPÉAiÀÄ°è £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ªÀiÁvÀæ ºÉýzÀÄÝ, ¸ÀzÀjà «ZÁgÀªÀ£ÀÄß PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ C¢üPÁjUÀ¼À ªÀÄÄAzÉ CxÀªÁ ªÀÄzÀÆÝgÀÄ ¥ÀÄgÀ¸À¨sÁ ªÀÄÄSÁå¢üPÁjUÀ¼À ªÀÄÄAzÉ ºÉýgÀĪÀÅ¢®è. ¤¦2gÀ ¥ÀæPÁgÀ £À£Àß vÀAzÉAiÀĪÀgÀÄ ªÀÄgÀt ºÉÆA¢zÀ £ÀAvÀgÀ zÁªÁ J µÉqÀÆå¯ï £À 1£Éà LlA ¸ÀéwÛ£À ¨Á§ÄÛ £À£Àß ºÉ¸ÀjUÉ ¥Ëw SÁvÉAiÀiÁVgÀÄvÀÛzÉ JAzÀgÉ ¤d."

13. The perusal of the aforesaid admission made by

DW1 would indicate that the joint family properties remained

as joint family property of late Kilari Kadaiah and the alleged

earlier partition, as stated by defendants No.3 and 4 was not

proved and same, is not supported by any documents, inter

alia, defendants No.3 and 4 have not adduced any evidence to

prove the oral partition before the trial Court and in that view

of the matter, the First Appellate Court, after re-assessing the

oral and documentary evidence of the parties as provided

under Order XLI Rule 31 of the Code of Civil Procedure, rightly

rejected the appeal and confirmed the judgment and decree

passed by the trial Court.

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

of the High Court of Calcutta in the case of SRI BHADRESWAR

PADIT 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."

15. 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."

16. 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."

17. Upon perusal of the law declared by the Hon'ble

Supreme Court referred to above and the finding recorded by

the courts below, I am of the considered opinion that, the

appellants herein have not made out any case for interfering

with the reasons assigned by both the courts below for

formulating substantial question of law as required under

Section 100 of the Code of Civil Procedure and therefore, the

appeal is liable to be dismissed. Hence, I pass the following:

ORDER

1. Appeal is dismissed;

2. Judgment and Decree dated 24.11.2017

passed in RA No.3 of 2017 by the II Additional

District and Sessions Judge, Mandya, affirming

the judgment and decree dated 17.08.2016

passed in OS No. 68 of 2012 by the Senior

Civil Judge, Maddur is confirmed.

Sd/-

JUDGE

Sd/lnn