Ramakanna Naik vs Smt Annapurna
2023 Latest Caselaw 4889 Kant

                                                 -1-
                                                             RSA No. 2626 of 2007



                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 27TH DAY OF JULY, 2023

                                               BEFORE

                              THE HON'BLE MR JUSTICE V.SRISHANANDA

                           REGULAR SECOND APPEAL NO. 2626 OF 2007 (PAR)


                      BETWEEN:

                      1.    RAMAKANNA NAIK,
                            AGED ABOUT 51 YEARS,
                            ROYT, R/O: HUVINAMANE VILLAGE,
                            SIDDAPUR TALUK, PIN: 581355.

                      2.    SMT. GANAPI KOM KANNA NAIK,
                            AGED ABOUT 80 YEARS,
                            ROYT, OCC: HOUSEHOLD,
                            R/O: HUVINAMANE VILLAGE,
                            SIDDAPUR TALUK, PIN: 581355.

                      3.    ISHWAR KANNA NAIK,
                            AGED ABOUT 45 YEARS, RYOT,
                            R/O: HUVINAMANE VILLAGE,
                            SIDDAPUR TALUK, PIN: 581355.
CHANDRASHEKAR
LAXMAN
KATTIMANI             4.    BHASKAR KANNA NAIK,
                            AGED ABOUT 45 YEARS,
                            R/O: HUVINMANE VILLAGE,
Digitally signed by         SIDDAPUR TALUK, PIN: 581355.
CHANDRASHEKAR
LAXMAN
KATTIMANI             5.    SHREEDHAR KANNA NAIK,
Date: 2023.07.28
11:03:04 -0700              AGED ABOUT 45 YEARS,
                            R/O: HUVINMANE VILLAGE,
                            SIDDAPUR TALUK, PIN: 581355.

                                                                    ...APPELLANTS
                      (BY SRI. R.G. HEGDE, ADVOCATE)
                             -2-
                                       RSA No. 2626 of 2007



AND:

1.   SMT. ANNAPURNA W/O. GANAPATI NAIK,
     AGED ABOUT 40 YEARS,
     OCC: HOUSEHOLD,
     R/O: HUVINMANE VILLAGE
     IN SIDDAPUR TALUK, PIN: 581355.

2.   CHETANA GANAPATI NAIK,
     AGED ABUT 18 YEARS,
     R/O: HUVINMANE VILLAGE
     IN SIDDAPUR TALUK, PIN: 581355.

3.   RANJANA GANAPATI NAIK,
     AGED: 15 YEARS,
     R/O: HUVINMANE VILLAGE
     IN SIDDAPUR TALUK, PIN: 581355.

4.   NALINA GANAPATI NAIK,
     AGED: 14 YEARS,
     R/O: HUVINMANE VILLAGE
     IN SIDDAPUR TALUK, PIN: 581355.
     (R-3 TO R4 REPRESENTED BY THEIR
     GUARDIAN ANNAPURNA, MOTHER)

5.   LAXMAN HALA NAIK,
     AGED ABOUT 40 YEARS,
     OCC: AGRICULTURE,
     R/O: HUVINMANE VILLAGE,
     SIDDAPUR TALUK, PIN: 581355.

6.   TIMMA NALA NAIK,
     AGED ABOUT 38 YEARS,
     OCC: AGRICULTURE,
     R/O: HUVINAMANE VILLAGE,
     SIDDAPUR TALUK,
     PIN: 581355.

7.   SMT. SAVITRI W/O. MANJA NAIK,
     SINCE DECEASED

8.   TIMMA MANJA NAIK,
     AGED ABOUT 50 YEARS,
     OCC: AGRICULTURE,
                           -3-
                                    RSA No. 2626 of 2007



     R/O: HUVINAMANE VILLAGE,
     SIDDAPUR TALUK, PIN: 581355.

9.   DYAVA MANJA NAIK,
     NOW DECEASED BY HIS LRS.

9A. MARIYAMMA W/O. DYAVA NAIK,
    AGED: 36 YEARS,
    OCC: HOUSEHOLD,
    R/O: HUVINMANE VILLAGE,
    PIN: 581355.

9B. RAGHUPATI DYAVA NAIK,
    AGED ABOUT 20 YEARS,
    R/O: HUVINMANE VILLAGE,
    PIN: 581355.

9C. RAGHAVENDRA DYAVA NAIK,
    AGED ABOUT 16 YEARS, MINOR,
    GUARDIAN MARIYAMMA.
                                              RESPONDENTS
(BY SRI. VISHWANATH HEGDE, ADVOCATE FOR R5-R6;
 NOTICE TO R1, R2, R9(A) SERVED;
 SERVICE OF NOTICE TO R4, R8, R9(B), R9(C) HELD
 SUFFICIENT;
 R3 IS MINOR AND REPRESENTED BY R1;
 R7 DECEASED AND R8, R9(A-C) ARE LRS OF R7)


     THIS   REGULAR   SECOND    APPEAL   IS   FILED   UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 04.07.2007 PASSED IN R.A.NO.78/1995 ON THE FILE
OF THE CIVIL JUDGE, (SR.DN), SIRSI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 09.08.1995 PASSED IN O.S.NO.45/90 ON THE FILE OF
THE MUNSIFF, SIDDAPUR.


     THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                 -4-
                                              RSA No. 2626 of 2007




                            JUDGMENT

This second appeal is f iled by the legal

representatives of the first defendant challenging

the concurrent finding recorded by the learned trial

Judge in O.S.No.45/1990 confirmed in

R.A.No.78/1995.

2. Parties are referred to as plaint iffs and

defendants for the sake of convenience as per

their original ranking in the trial Court.

3. Heard Sri.R.G.H egde, learned counsel for

the appellant s and Sri.Vishwanath H egde, learned

counsel for respondents No.5 and 6.

4. Fact s in brief ar e as under:

4.1 Timma Kanna Naik was the common

prepositor of the family of the plaint iffs and

defendants. Timma Kanna Naik had four sons

namely Manja, Ganapa, Hala and Kanna. Upon the

death of Timma Kanna Na ik, eldest son Manja

became the manager of the joint family. After sa id

RSA No. 2626 of 2007

Manja started managing the property, there were

serious differences in the joint family resulting in

partit ion of the joint family properties and Manja

gave 1/3rd share to his brothers and the sa id

partit ion was witnessed by Durga Keriya Naik,

Vishweshwar Narayanappa Hegde and Ishwar

Marya Naik and others. After the said partition,

parties started enjoy ing their respective shares of

the property.

4.2 However, it is contended that except the

land in Sy.No.141 measuring 5 acres 35 guntas, all

other lands were 'pada' lands. Land in Sy.No.141

measuring 1 acre 35 guntas, t wo crops were grown

every year and it was given to Hala Naik and

remaining pada lands were given to Manja. Sa id

partit ion said to have effected taking note of value

of the lands, yield from the lands, prof it derived

from the lands and availability of the water source.

RSA No. 2626 of 2007

4.3 It is further contended that plaintiff's

husband Hala Naik cultivated the land of his share

for few years and thereafter he surrendered the

land to the original landlord a s he could not pay

the rent in terms of paddy (in kind) to the

landlord.

4.4 It is further contended that landlord

thereafter, handed over the land which was in the

possession of Hala Naik to the first defendant and

from that onwards, first defendant started

cultivating the land and he invested huge money

and improved the land.

4.5 It is a lso contended that on coming into

the force of Karnataka Land Reforms Act, both

plaint iffs and defendants filed an applic ation in

Form No.7 claiming rights in accordance with the

shares that were allotted to them in the partition.

The Land Tribunal on consideration of the

application of each of the parties f iled under Form

RSA No. 2626 of 2007

No.7, allotted respective shares and at that

juncture, there was no objection f iled by the

plaint iffs for the grant in favour of the fir st

defendant.

4.6 After lapse of about fifteen years,

plaint iffs filed O.S. No.45/1990 on the file of the

Civil Judge (Jr.Dn.), Siddapur seeking declaration

that suit properties are the joint family properties

and for partition and separate possession of share

of the plaint iffs in the suit properties.

4.7 Suit on contest ca me to be decreed by

the learned Civ il Judge (Jr.Dn.), Siddapur on

09.08.1995. Being aggrieved by the same,

defendants namely Rama Kanna Naik, Ganapi

Kanna Naik, Ishwar Kanna Naik, Bhaskar Kanna

Naik and Shreedhar Kanna Naik, filed an appeal

before the Civil Judge ( Sr.Dn. ), Sir si. The appeal

was numbered as R.A.No.78/1995.

RSA No. 2626 of 2007

4.8 Learned Judge in the First Appellate

Court secured the trial Court records and after

hearing the parties in detail, dismissed the appeal

of the appellant s and confirmed the decree passed

by the learned Civil Judge (Jr.Dn.), Siddapur.

5. Being aggrieved by the concurrent finding

recorded by the Civil Judge (Jr.Dn.) , Siddapur and

conf ir med by the Civil Judge (Sr.Dn.), Sirsi, the

present appeal is filed on the following grounds.

x That t he judgment a nd Decree pas sed by the court below are c ont rary to la w a nd fac ts of the c as e.

x That the l ower ap pellate c ourt s c ommitte d an error i n c onfir ming t he fi ndings re co rd ed by t he trial c ourt.

x That the c ourts belo w ought t o ha ve see n tha t t he partiti on has take n plac e in the fa mily of Sri. T hi mm a Naik nea rly 40 y ears bac k.

x That the c ourts belo w ought t o ha ve see n tha t Sri. Thimma Nai k ha d 4 so ns, a ft er the deat h of Thimma Naik is e ldest s on Sri. Manja Nai k becam e the ma nag er of the fa mily.

RSA No. 2626 of 2007

x That the c ourts belo w ought t o ha ve see n tha t t he Joi nt Family pr operties w ere divided lo ng bac k a nd H ala was allott ed 1/3rd shar e. How eve r, Hala surre nde r the lands allo tt ed to him t o the La ndlo rd as he was not able to pay the re nt to t he Landlord. I n t urn t he Landl ord l eas ed t he sa id la nd to the 1st de f endant -appellant f or cultivati o n.

x That the c ourts belo w ought t o ha ve see n tha t the pl aintif f have no r i ght t o s ee k for decla rat io n a nd pa rti tio n.

x That the c ourts belo w ought t o ha ve see n tha t t he parties f iled Fo rm No .7 claiming oc cu pancy ri ghts in re spec t of properti es fall en to thei r shares i n the partitio n aft e r co ming i nt o f orc e of the Ka rnatak a La nd Refo rms act a nd the plaintiffs did no t obj ec t f or s uc h a gra nt.

x That t he co urts belo w co mmitt ed i n err or i n disbelie vi ng the entri es in the rec ord of rights to s how that the partitio n has take n place , s ol ely o n the gro und that it is no t a doc um ent of titl e.

x That t he c ourts below co mmitte d an e rr or in disca rdi ng Ex .P.9 and com mitt ed a n error in co mi ng to the co ncl us io n t hat the plainti ffs- and de fendants residing se parat ely will not p rov e tha t t here w as

- 10 -

RSA No. 2626 of 2007

part itio n whic h wa s eff ect ed m etes and bounds.

x That the c ourts belo w ought t o ha ve see n tha t the appella nts had pr od uced e nough mat erials to s how that the re was se vera nce of J oi nt fa mily st at us and the re was actual part itio n in t he f amily.

x That t he c ourts below co mmitte d an e rr or in di sbeliev ing the evidenc e o f D. W.2 who has spoke n t o abo ut t he part iti on in the fa mily of t he appellants and also r egarding the fac t that Hala left cultivation, surre nder ed t he land.

x That t he pa rti es to O.S. N o.85 of 1974 bef ore the co urt o f the Munsif f, Si dda pur, ent ere d into a c ompromise and in t he said co mpro mis e land bea ring sy .no.138/2 me as uri ng 11 gunta s, sy .no.141/1 me as uri ng 2 Ac res 25 guntas , sy .no.141/3 me as uri ng 1 ac re 10 gunta s and sy .no.142/2 me asuring 1 ac re 20 gunt as was give n to the sa hr e of pre dece sso r o f the ap pellant s namely S ri. Kanna Naik o n 10-8-1976.

6. This Court, based on the grounds urged

in the appeal memorandum and hearing the

- 11 -

RSA No. 2626 of 2007

counsel for appellants, raised following substa ntial

question of law at the time of admission of appeal.

"Whether t he trial co urt as w ell as t he Firs t Appella te Co urt have committ ed s erio us e rror i n decr eei ng the suit by i gno ri ng the material evide nce on r eco rd, m ore partic ularly, when t he alle ged fam ily a rrangem ent was a partit ion f or al l prac tical pur pose s a nd t hat the ord er of the Tribunal grant ing Occup anc y R ight in fa vo ur o f t he a ppellants wa s in his individual capacity and not as a me mb er o f the joint f amily a nd t hus t he judgments hav e b ec om e perv ers e and ille gal? "

7. Sri R.G.Hegde, learned counsel for the

appellants cont ended that both the Courts have

committed serious error in passing the impugned

judgments igno ring the fam ily arrangement and

Land Tribunal recognizing the family arrangement

and grant of occupancy r ights in the individual

capacit y of sharers and not as members of joint

family.

8. He also contended that this Court need

not consider only to the substantial quest ion of law

- 12 -

RSA No. 2626 of 2007

that has been framed at the time of adm ission of

the appeal as t his Court has got sufficient power

under Sections 100 and 103 of Code of Civil

Procedure to frame addit iona l substantia l questions

of la w in view of pleadings of the parties.

9. He further contended that subst antial

questions of la w raised in the appeal memorandum

are to be framed other than the substa ntial

question of law already framed and appeal t o be

heard on mer its.

10. He also pointed out that the oral partit ion

is est ablished by the defendants- appellants before

the trial Judge by examining the persons who

participated in the oral partition and the sa me is

ignored by the trial Judge. He also argued that

said aspect of matter was not re-appreciated by

the learned Judge in the First Appellate Court and

sought for allowing the appeal.

- 13 -

RSA No. 2626 of 2007

11. He further point ed out that since the land

originally belonged to the common prepositus-

Timma Kanna Naik and taking note of the fact that

Hala Naik had surrendered the land in favour of

the original landlord as he could not pay the rent

for occupying the land in the form of paddy to the

landlord, the original landlord handed over the suit

land to the first defendant and the first defendant

was cult ivating the suit land. Accordingly, the Land

Tribunal granted the respective shares in ter ms of

Form No.7 and therefore, the suit of the pla int iffs

seeking partition was totally incorrect and ought to

have been dism issed.

12. He further argued that the powers of this

Court under Sections 100 and 103 of Code of Civil

Procedure is wide enough to re-appreciate the

position of law canvassed in the appeal

memorandum and sought for allowing the appeal.

13. In support of this contentions, he placed

reliance on judgment of Hon'ble Apex Court in the

- 14 -

RSA No. 2626 of 2007

case of Hardeep Kaur vs. Malkiat Kaur reported

in (2012) 4 SCC 344, wherein it has held as

under:

"10. The jurisdiction of the High Court in hearing a second appeal under Section 100 CPC has come up for consideration before this Court on numerous occasions. In a long line of cases, this Court has reiterated that the High Court has a duty to formulate the substantial question(s) of law before hearing the second appeal. As a matter of law, the High Court is required to formulate substantial question of law involved in the second appeal at the initial stage if it is satisfied that the matter deserves to be admitted and the second appeal has to be heard and decided on such substantial question of law. The two decisions of this Court in this regard are: Kshitish Chandra Purkait v. Santosh Kumar Purkait [(1997) 5 SCC 438] and Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor [(1999) 2 SCC 471]

11. It needs to be clarified immediately that in view of sub-section (5) of Section 100, at the time of hearing of the second appeal, it is open to the High Court to reformulate substantial question(s) of law or formulate fresh substantial question(s) of law or hold that no substantial question of law is involved. This Court has repeatedly said that the judgment rendered by the High Court under Section 100 CPC without following the procedure contained therein cannot be sustained. That the High Court cannot proceed to hear the second appeal without formulating a substantial

- 15 -

RSA No. 2626 of 2007

question of law in light of the provisions contained in Section 100 CPC has been reiterated in Panchugopal Barua v. Umesh Chandra Goswami [(1997) 4 SCC 713] , Sheel Chand v. Prakash Chand [(1998) 6 SCC 683] , Kanai Lal Garari v. Murari Ganguly [(1999) 6 SCC 35] , Ishwar Dass Jain v. Sohan Lal [(2000) 1 SCC 434] , Roop Singh v. Ram Singh [(2000) 3 SCC 708] , Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] , Chadat Singh v. Bahadur Ram [(2004) 6 SCC 359] , Sasikumar v. Kunnath Chellappan Nair [(2005) 12 SCC 588] , C.A. Sulaiman v. State Bank of Travancore [(2006) 6 SCC 392] , Bokka Subba Rao v. Kukkala Balakrishna [(2008) 3 SCC 99 : (2008) 1 SCC (Civ) 786] , Narayanan Rajendran v. Lekshmy Sarojini [(2009) 5 SCC 264 : (2009) 2 SCC (Civ) 500] and Municipal Committee, Hoshiarpur v. Punjab SEB [(2010) 13 SCC 216 : (2010) 4 SCC (Civ) 861] .

12. Some of the above decisions and the provisions contained in Sections 100, 101 and 103 CPC were considered in a recent decision of this Court in Umerkhan v. Bismillabi [(2011) 9 SCC 684 : (2011) 4 SCC (Civ) 823] . One of us (R.M. Lodha, J.) speaking for the Bench in Umerkhan [(2011) 9 SCC 684 : (2011) 4 SCC (Civ) 823] stated the legal position with regard to the jurisdiction of the High Court in hearing a second appeal in paras 11 and 12 of the Report thus: (SCC p.

687)

"11. In our view, the very jurisdiction of the High Court in hearing a second appeal is founded on the formulation of a substantial question of law. The judgment of the High Court is rendered

- 16 -

RSA No. 2626 of 2007

patently illegal, if a second appeal is heard and the judgment and decree appealed against is reversed without formulating a substantial question of law. The second appellate jurisdiction of the High Court under Section 100 is not akin to the appellate jurisdiction under Section 96 of the Code; it is restricted to such substantial question or questions of law that may arise from the judgment and decree appealed against. As a matter of law, a second appeal is entertainable by the High Court only upon its satisfaction that a substantial question of law is involved in the matter and its formulation thereof. Section 100 of the Code provides that the second appeal shall be heard on the question so formulated. It is, however, open to the High Court to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law is involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction under Section 100 of the Code is impermissible without formulating substantial question of law and a decision on such question.

12. This Court has been bringing to the notice of the High Courts the constraints of Section 100 of the Code and the mandate of the law contained in Section 101 that no second appeal shall lie except on the ground mentioned in Section 100, yet it appears that the fundamental legal position concerning jurisdiction of the

- 17 -

RSA No. 2626 of 2007

High Court in second appeal is ignored and overlooked time and again. The present appeal is unfortunately one of such matters where the High Court interfered with the judgment and decree of the first appellate court in total disregard of the above legal position."

(emphasis supplied)

13. The above principle of law concerning jurisdiction of the High Court under Section 100 CPC laid down in Umerkhan [(2011) 9 SCC 684 : (2011) 4 SCC (Civ) 823] has been reiterated in a subsequent decision in Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [(2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817] This Court through one of us (R.M. Lodha, J.) observed in para 11 of the Report as follows: (SCC p. 681)

"11. The judgment of the High Court is gravely flawed and cannot be sustained for more than one reason. In the first place, the High Court, while deciding the second appeal, failed to adhere to the necessary requirement of Section 100 CPC and interfered with the concurrent judgment and decree of the courts below without formulating any substantial question of law. The formulation of substantial question of law is a must before the second appeal is heard and finally disposed of by the High Court. This Court has reiterated and restated the legal position time out of number that formulation of a substantial question of law is a condition precedent for entertaining and deciding a second appeal."

- 18 -

RSA No. 2626 of 2007

14. The relevant discussion in the judgment by the High Court reads as follows:

"After hearing the learned counsel for the parties and going through the records of the case, this appeal deserves acceptance and the judgment and decree passed by the trial court deserves to be restored for the reasons to be given hereinafter.

In this case, the respondent-defendant could not produce any evidence on record to show that the said agreement to sell was a forged or fabricated document or it was the result of fraud or misrepresentation. The appellant-plaintiff proved on record that she had always been ready and willing to perform her part of the agreement. In fact, filing of the suit by the appellant-plaintiff itself showed that she was ready and willing to perform her part of the agreement.

The respondent-defendant had denied her signatures on the agreement to sell (Ext. P-1) and the endorsement (Ext. P-3) made on the back of the agreement, vide which the date of execution of the sale deed was extended from 10-3-1994 to 10- 5-1995 by claiming that she did not know how to write and sign. However, there is evidence of Telu Ram (PW 4), produced by the plaintiff. Telu Ram (PW 4) had brought the original File No. 2110 concerning the respondent-defendant Hardeep Kaur whereby she had taken loan. On the application (Ext. P-5) for taking loan, on the receipt of payment of loan amount (Ext. P-6) and on the other documents pertaining to the sanction of loan (Exts. P-7 to P-12), the defendant had put her

- 19 -

RSA No. 2626 of 2007

signatures. It, thus, belied the stand of the defendant that she usually thumb-marked the documents and had not signed the agreement to sell (Ext. P-1) and the endorsement (Ext. P-3). Both these documents i.e. Exts. P-1 and P-3 prove in certain terms that the defendant had agreed to sell the land measuring 15 bighas 4 biswas to the plaintiff for Rs 2,38,000. Major part of the sale consideration i.e. Rs 1,48,000 had already been paid at the time of execution of the agreement to sell (Ext. P-1). The remaining amount of sale consideration of Rs 80,000 was deposited by the plaintiff in the trial court. It shows that the plaintiff has always been ready and willing to perform her part of the agreement. Under the circumstances, the lower appellate court was not justified in confining the relief of the plaintiff to the return of earnest money only.

Under the circumstances, this appeal succeeds. The same is, accordingly, allowed. The judgment and decree passed by the lower appellate court are set aside and those of the trial court are restored. However, there shall be no order as to costs."

15. Apparently, the High Court has ignored and overlooked the mandatory requirement of the second appellate jurisdiction as provided in Section 100 CPC and that vitiates its decision as no substantial question of law has been framed and yet the judgment and decree of the first appellate court has been reversed. However, Mr Neeraj Kumar Jain, learned Senior Counsel

- 20 -

RSA No. 2626 of 2007

for the respondent, submitted that though no substantial question of law has been expressly framed by the High Court while accepting the second appeal, but the above discussion by the High Court clearly shows that the High Court considered the questions whether the plaintiff was entitled to the grant of decree of specific performance of the contract once execution of the agreement has been duly proved and the plaintiff was always ready and willing to perform her part of the contract and whether the first appellate court has correctly exercised the discretion in terms of Section 20 of the Specific Relief Act, 1963 while refusing the decree for specific performance of the contract as was ordered by the trial court. In this regard, he relied upon a decision of this Court in M.S.V. Raja v. Seeni Thevar [(2001) 6 SCC 652] .

16. In M.S.V. Raja [(2001) 6 SCC 652] this Court observed as follows: (SCC pp. 659-60, para 18)

"18. We are unable to accept the argument of the learned Senior Counsel for the appellants that the impugned judgment cannot be sustained as no substantial question of law was formulated as required under Section 100 CPC. In para 22 of the judgment the High Court has dealt with substantial questions of law. Whether a finding recorded by both the courts below with no evidence to support it was itself considered as a substantial question of law by the High Court. It is further stated that the other questions considered and dealt with by the learned Judge were also substantial questions of

- 21 -

RSA No. 2626 of 2007

law. Having regard to the questions that were considered and decided by the High Court, it cannot be said that substantial questions of law did not arise for consideration and they were not formulated. May be, substantial questions of law were not specifically and separately formulated. In this view, we do not find any merit in the argument of the learned counsel in this regard."

17. In M.S.V. Raja [(2001) 6 SCC 652] this Court found that the High Court in para 22 of the judgment under consideration therein had dealt with substantial questions of law. The Court further observed that the finding recorded by both the courts below with no evidence to support it was itself considered as a substantial question of law by the High Court. It was further observed that the other questions considered and dealt with by the learned Judge were substantial questions of law. Having regard to the questions that were considered and decided by the High Court, it was held by this Court that it could not be said that the substantial questions of law did not arise for consideration and they were not formulated. The sentence "may be, substantial questions of law were not specifically and separately formulated" in M.S.V. Raja [(2001) 6 SCC 652] must be understood in the above context and peculiarity of the case under consideration.

18. The law consistently stated by this Court that formulation of substantial question of law is a sine qua non for exercise of jurisdiction under Section 100 CPC

- 22 -

RSA No. 2626 of 2007

admits of no ambiguity and permits no departure. In the present case, the High Court has allowed the second appeal and set aside the judgment and decree of the first appellate court without formulating any substantial question of law, which is impermissible and that renders the judgment of the High Court unsustainable.

19. Consequently, the appeal is allowed and the impugned judgment of the High Court is set aside. The second appeal (RSA No. 1679 of 2001, Malkiat Kaur v. Hardeep Kaur [Malkiat Kaur v. Hardeep Kaur, Regular Second Appeal No. 1679 of 2001 (RSA No. 1679/2001), order dated 9-3-2011 (P&H)] ) is restored to the file of the High Court for fresh consideration in accordance with law. No order as to costs."

14. Per contra, learned counsel for

respondents No.5 and 6, Sri.Vishwanath Hegde

contended that both the Courts have properly

appreciated the material ev idence on record and

have taken into cons ideration that the suit

property though earlier belonged to Timma Kanna

Naik, on the date of coming into force the Land

Reforms Act, Form No.7 came to be filed and the

land was re-granted with regard to the occupancy

rights and in the absence of any material evidence

- 23 -

RSA No. 2626 of 2007

placed on record that the appellants exclusively

enjoyed the property in their individual capacity,

decreeing of the suit f iled by the trial Court a s well

as the First Appellate Court, granting share of the

plaint iffs in accordance with law is thus justified

and sought for dismissal of the appeal.

15. Insofar as raising of additional

substantial question of law is concerned,

Sri.Vishwanath Hegde contended that even though

there is no bar to raise additional substa ntial

question of law if necessity so arises, in the case

on hand, after hearing the appellants at the stage

of admission, substantial question of law has been

framed and given the attendant circumstances of

the case, no other substantial question of law

would arise in the case to be adjudicated by this

Court in this appeal and therefore sought for

dismissal of the appeal.

16. In the light of the rival contentions of the

parties, this Court bestowed its best attention to

- 24 -

RSA No. 2626 of 2007

the material evidence including the documentary

evidence.

17. Admittedly, the suit is filed by the

plaint iffs who are the respondents in this appeal.

There is no dispute that the original prepositus

Timma Kanna Naik acquired 'A' schedule property

at the lis when he was managing the suit

properties for and on behalf of joint fam ily. T here

is no dispute as to the relationship among the

parties. But after the death of Timma Kanna Naik,

the dispute arose and accordingly, a family

arrangement wa s made.

18. It is also found from the records that the

property that had fallen to the share of Hala

Timma Naik as per the a lleged family arrangement

was re-surrendered to the owner as he could not

pay the rent in the form of paddy to the original

owner. Later on, the same was taken on tenancy

by the first defe ndant Kanna Timma Naik.

- 25 -

RSA No. 2626 of 2007

19. Likewise, there is no dispute that on

coming into force of Land Reforms Act, the parties

to the suit have filed Form No.7 and the occupancy

rights were granted in their favour.

20. Since the suit wa s resisted, the trial

Court had raised necessary issues and part ies have

placed their oral and documentary evidence on

record.

21. At the time of considerat ion of the appeal

on merits in RA No.78/1995 filed by the fir st

defendant, Timma Kanna Naik and his sons were

no more. Only first defendant Kanna Timma Naik

was alive at the t ime of filing of the suit .

22. Second son of Timma Kanna Naik, namely

Ganapi on his volition left the joint family and

started living with his parents-in-law and died

there itself. Anyway, the remaining three sons of

Timma Kanna Naik alone enjoyed the properties

- 26 -

RSA No. 2626 of 2007

and therefore plaint iffs have sought their 1/3rd

share in the suit property.

23. On behalf of plaintiffs, to prove the case

of the plaintiffs seeking partit ion three witnesses

were examined as PWs.1 to 3. second plaintiff who

is the son of th e Hala Naik was initially examined

as PW.1 but after his examination-in- chief, he died

and therefore he was not available for cross-

examination. As such, Ramadas R Naik and Govind

Mabla Gouda were examined as PWs.2 and 3. Both

witnesses maintained that there was no previous

partit ion in the family. Despite their cros s-

examination in detail, no useful materials are

elicited in their evidence to hold that there was a

previous partition and the same is a concurrent

finding of fact.

24. Both the Courts also analysed the

evidence of D Ws.1 and 2 who are examined on

behalf of defendants namely Rama Kanna Naik who

was one of the sons of firs t defendant Kanna

- 27 -

RSA No. 2626 of 2007

Timma Naik a nd Marya Ira Naik who is an

independent wit ness. They deposed that there was

a family partit ion in the family a fter the death of

Timma Kanna Naik and as per the family partition,

revenue entries were also mut ated.

25. DW.1 in his cross-examination however

adm itted that the said family partition has taken

place about 50 years earlier and he was not a

party who witnessed the family partition. Since

DW.1 could not effectively estab lish before the

trial Court about the earlier family arrangement,

DW.2 Marya Ira Naik is examined. The tria l Court

has disbelieved the test imony of D W.2 on the

ground that the very same witness has appeared in

few other cases and he has gone on giving

different versions with regard to his age and he is

a stock witness.

26. In the present case, he has been shown

that he is aged 73 years at the time of his

examination before the trial Court. The cros s-

- 28 -

RSA No. 2626 of 2007

examination wo uld establish t hat his evidence is

with regard to his age is false by plac ing necessary

material on record. Moreover, this witness has

gone to the extent of g iving the particulars

including the boundaries of the land that are fallen

to the share of each of the parties with graphic

details in the alleged ear lier family arrangement as

if he is the author of family arrangement.

27. Admittedly, he was deposing before the

Court of a fact that said to have occurred 50 years

earlier. I t is highly unimaginable that somebody

who is unconnected with the family would

remember the graphic details as to the boundaries

of the land that has been allotted to each of the

sharers in the family arrangement. It should be

remembered that DW .2 is not a party to the lis and

he has only a villager.

28. Taking note of these aspects of the

matter, the trial Court disbelieved the version of

DW.2 and has treated him as a tutored witness to

- 29 -

RSA No. 2626 of 2007

suit the convenience and the defence taken on

behalf of defendants.

29. Yet another factor on which both the

Courts have disbelieved the version of the

defendants is t hat mere mut ation of ROR entries

itself would not create any right in a person. There

is a detail discussion in the judgment of the trial

Court as well as the First Appellate Court after

following the principles of law enunciated by the

Hon'ble Apex Court and other judgments o f this

Court including the judgment reported in AI R 1995

SC 1728 in the case of Digambar Adhar Patil vs,

Devram Girdha r Patil (died) and another and

recorded the said finding.

30. In the background of the above factual

findings recorded by both t he Courts, while

adm itting the appeal this Court has therefore

rightly raised only one substantial question of law

as referred to supra.

- 30 -

RSA No. 2626 of 2007

31. The judgment relied on by the counsel for

the appellants in the case of Hardeep Kaur

referred to supra, is to the effect that this Court

has got ample power to formulate further

substantial quest ions of law and this Court is not

powerless when once a substantial question is

already framed to frame addit ional substa ntial

question of law.

32. In other words, the principles of law

enunciated in t he said case is to the effect that

even after framing the substantial question of law

at the time of a dmission, while hearing, this Court

can formulate additional subst antial question/s of

law if need be.

33. There cannot be any dispute as to the

principles of l aw enunciated in the aforesa id

decision in view of power vested in this Court

under Sections 100 and 103 of Code of Civil

Procedure and while dealing with the powers of the

- 31 -

RSA No. 2626 of 2007

Court has dealt in detail in paragraph No.9 of the

said judgment (supra).

34. But, in the case on hand, after conclusion

of argument s, this Court directed the parties to file

written submissions, if any, so a s to find out

whether any further substantial questions of law

needs to be framed in the attendant circumsta nces

of the case. But, no such written submissions are

filed on behalf of both parties despite granting

opportunity for them.

35. Left with no alternative, this Court is

proceeding to adjudicate the proceeding to pass

suitable orders based on substantial question of

law already fr amed at the time of admission

referred to supra.

36. Thus, on re-consideration of the entire

material on record in the light of the evidence

placed by the partie s, this Court is unable to

appreciate the argument put forth on behalf of

- 32 -

RSA No. 2626 of 2007

appellants that both the Courts have grossly erred

in appreciat ing the fact that family partit ion which

has taken place after the death of Timma Kanna

Naik has been ignored by the trial Court while

decreeing the suit of the plaintiffs for more than

one reasons.

37. First ly, the plaintiffs have specif ically

pleaded and deposed about the plaint averments.

The evidence of PW s.2 and 3 would amply

establish that there was no previous partit ion. One

of the sons namely Ganapi has abandoned his right

and joined his parents-in-la w and lived there till

his death. Therefore, parties have enjoyed their

property after the occupancy rights has been

granted in pursuance of their applications when

the Land Reforms Act came into force.

38. Secondly, mere parties having enjoyed

separate bits of lands for convenience and paying

tax accordingly alone cannot be termed as oral

partit ion or family arrangement .

- 33 -

RSA No. 2626 of 2007

39. Thirdly, it is settled principles of law and

requires no emphasis that if t he joint family w as

the tenant and for the sake of convenience if they

are enjoying the particular piece of the property

and started paying revenue only to the extent of

property they enjoy by effecting some mutat ion in

the revenue entries subsequent to grant of

occupancy right s in pursuan ce of the applications

filed by the members of the joint family, is to be

construed as occupancy right granted to the

benefit of joint family and not in the individual

capacit y.

40. Therefore, the trial Court holding that

there was no previous part ition and decreeing the

suit which was re-appreciated and confirmed by

the First Appellate Court is based on sound and

proper appreciation both on facts and point of law.

41. As such, this Court is of the considered

opinion that the grounds urged in the appeal

referred to supra are hardly sufficient to answer

- 34 -

RSA No. 2626 of 2007

the substantial question of law in favour of

appellants herein. Accord ingly, it is answered in

the Negative and following order is pa ssed:

ORDER

Appeal sans merits and is hereby dismissed.

Sd/-

JUDGE

CLK/sh