Karnataka High Court
Sri.Nagabasappa S/O Karabasappa Betur vs Shekharappa S/O. Karabasappa Betur on 18 February, 2025
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RSA No. 100713 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100713 OF 2014 (PAR)
BETWEEN:
1. SRI. NAGABASAPPA
S/O KARABASAPPA BETUR,
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O. HIREKERUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
SINCE DEAD BY HIS LRS.,
1A) TIPPESH S/O NAGABASAPPA BETUR,
AGE 46 YEARS, OCC: BUSINESS
& AGRICULTURE, R/O: HIREKERUR,
TQ: HIREKERUR, DIST: HAVERI-581111.
1B) SUMA W/O LATE SHIDLINGAPPA BETUR,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: MRITYUNJAYA NAGAR,
RANEBENNUR, DIST: HAVERI.
1C) SANAT S/O LATE SHIDLINGAPPA BETUR,
Digitally AGE: 15 YEARS, OCC: STUDENT,
signed by R/O: MRITYUNJAYA NAGAR,
VN RANEBENNUR, DIST: HAVERI.
BADIGER
SINCE MINOR R/BY HIS NATURAL
Location:
High MOTHER, MINOR GUARDIAN AND
Court of BEST NEXT FRIEND,
Karnataka, SUMA W/O LATE SHIDLINGAPPA BETUR,
Dharwad
Bench AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: MRITYUNJAYA NAGAR,
RANEBENNUR, DIST: HAVERI.
1D) SHIVAYOGI S/O NAGABASAPPA BETUR,
AGE: 42 YEARS, OCC: BUSINESS
& AGRICULTURE, R/O: BETUR MEDICALS,
VASANTA ROAD, DAVANAGERE.
1E) RUDRESH S/O NAGABASAPPA BETUR,
AGE: 40 YEARS, OCC: AGRICULTURE,
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RSA No. 100713 of 2014
R/O: HIREKERUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
1F) TIPPAMMA W/O GURUPUTRAPPA
MUCHCHUNDI, AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O: BEHIND SAVITRAMMA KALYAN MANTAP,
HANGAL,TQ: HANGAL, DIST: HAVERI.
1G) SUVARNA W/O REVANASHIDDAPPA GOVI,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: KAMALAPUR, HAVERI, DIST: HAVERI.
1H) MUKTAYAMMA W/O LATE NAGABASAPPA
BETUR, AGE: 65 YEARS,
OCC: AGRICULTURE,
R/O: HIREKERUR, TQ: HIREKERUR,
DIST: HAVERI-581111.
...APPELLANTS
(BY SRI AVINASH BANAKAR, ADVOCATE)
AND:
1. SHEKHARAPPA S/O. KARABASAPPA BETUR
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. HIREKERUR, TQ: HIREKERUR,
DIST: HAVERI - 581111.
2. DR. PUTTAPPA A/M HAMPAVVA BETUR
AGE: 64 YEARS, OCC: DOCTOR,
R/O. JOSEPHNAGAR, TQ: SAGAR,
DIST: SHIMOGGA - 470001
(CALLING HIMSELF AS DR. PUTTAPPA KARABASAPPA
BETUR)
...RESPONDENTS
(BY SRI K.S.KORISHETTAR, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED ON 12.09.2014 BY
SENIOR CIVIL JUDGE AND JMFC, HIREKERUR, IN R.A.NO.21/2013,
DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT AND
DECREE IN O.S.NO.161/2004, DATED 20.04.2013 PASSED BY THE
CIVIL JUDGE AND JMFC, HIREKERUR AND ALLOW THE APPEAL BY
DISMISSING THE SUIT OF PLAINTIFF.
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RSA No. 100713 of 2014
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
1. This Regular Second Appeal is preferred by the
legal representatives of defendant No.1, under Section
100 of CPC, challenging the judgment and decree
dated 12.09.2014 in RA No.21 of 2013 on the file of
Senior Civil Judge and JMFC, Hirekerur, (for short
'First Appellate Court'), dismissing the appeal and
confirming the judgment and decree dated 20.04.2013
in OS No.161 of 2004 on the file of Civil Judge and
JMFC, Hirekerur (for short 'Trial Court') decreeing the
suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Facts in nutshell for the purpose of adjudication
of the appeal as averred in the plaint are that, plaintiff
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and defendants are brothers. Father of the plaintiff
and defendants is the original propositus by name
Sri.Karabasappa Nagabasappa Betur. It is stated that
another brother of the plaintiff and defendants-
Murugesh was given in adoption to Sri. Gurusiddappa
Betur of Masur village. It is the case of the plaintiff
that Karabasappa Nagabasappa Betur died during
1996 leaving behind the plaintiff and defendants to
succeed to the joint family properties. It is stated that
defendant No.1 was managing the affairs of the joint
family as a Karta and during 1992 the plaintiff and
defendants temporarily divided the family properties
and were enjoying the properties separately. It is
further stated that, the defendant No.1 availed loan to
install borewell in the item no.1 of the suit schedule
property and therefore, the property has been
temporarily divided. It is also stated that item Nos.2
to 4 stands in the name of the defendant No.1 and
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item No.5 stand in the name of the plaintiff. It is the
case of the plaintiff that, the plaintiff is entitled for
1/3rd share in the suit schedule properties and as
such, suit in OS No.161 of 2004 filed by the plaintiff,
seeking relief of partition and separate possession in
respect of the suit schedule properties.
4. After service of summons, the defendants
entered appearance and filed detailed separate written
statement denying the averments.
5. It is the case of the defendant No.1 that, there
was a partition amongst the family members on
15.02.1992 pursuant to the execution of Vatni Patra
and therefore, contended that as there is already a
partition in the family, suit itself is not maintainable. It
is also the averment made in the written statement by
the defendant No.1 that, defendant No.2 was given in
adoption to one Smt. Hampavva W/o. Murageppa
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Betur as per registered Adoption Deed on 06.08.1959
and therefore, the defendant No.2 is not entitled for
share in the joint family properties of Karibasappa
Nagabasappa Betur. It is also stated that as per Apsat
Vatni Patra, the revenue records have been mutated
and accordingly, sought for dismissal of the suit.
6. The defendant No.2 filed a separate written
statement and contended that, the defendant No.1
was managing the joint family properties and denied
the division of properties during the year 1992. It is
also the averment made in the written statement
denying the execution of Adoption Deed and same has
not been given effect to and as such, the defendant
No.2 remained in the family of Karibasappa
Nagabasappa Betur and accordingly, sought for share
in the suit schedule properties and further supported
the claim of the plaintiff.
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7. The Trial Court, based on pleadings on record,
has formulated issues for its consideration.
8. In order to establish their case, plaintiff was
examined as PW1 and produced 18 documents, which
were marked as Exhibits P1 to P18. On the other
hand, defendants have examined two witnesses as
DW1 and DW2 and produced 18 documents, which
were marked as Exhibit D1 to D18.
9. The Trial Court, after considering the material on
record by its judgment and decree dated 20.04.2013
decreed the suit holding that the plaintiff and
defendants are entitled for 1/3rd share each in the suit
schedule properties. Feeling aggrieved by the same,
the defendant No.1 has filed RA No.21 of 2013 before
the First Appellate Court and same was resisted by the
plaintiff. The First Appellate Court, after re-
appreciating the material on record by its judgment
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and decree dated 12.09.2014, dismissed the appeal,
consequently, confirmed the judgment and decree in
OS No.161 of 2004. Feeling aggrieved by the same,
legal representatives of defendant No.1/appellants
preferred this Regular Second Appeal under Section
100 of CPC.
10. This Court vide order dated 24.01.2020 has
formulated the following substantial questions of law
for its consideration.
1) Whether the Court below were legally correct in
refusing to consider Ex.D3 the registered
adoption deed dated 05.08.1956 on the ground
that no rituals have been performed for giving
and taking ?
2) Whether the Court below were justified in
allowing the claim of the plaintiff as well as
defendants that there is a partition in the year
1992 and the parties have acted upon ?
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11. I have heard Sri. Avinash Banakar, for the
learned counsel for the appellants and Sri. S.
Karishetty, learned counsel for the respondents.
12. Sri. Avinash Banakar, learned counsel for the
appellants contended that, both the courts below
failed to consider the registered Adoption Deed dated
05.08.1956, wherein, defendant No.2 was given in
adoption to Smt. Hampavva as per Ex.D3- Adoption
letter. The finding recorded by the Trial Court that,
either of the parties failed to prove the performance of
Dattaka ceremony is contrary to law. It is also argued
that, the registered Adoption Deed has not been
cancelled yet and is in force and therefore, the finding
recorded by both the courts below requires to be set
aside.
13. Nextly, it is contended by the learned counsel for
the appellants that, both the courts below fail to
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consider the fact that the partition was effected during
the year 1992 and pursuant to the same, revenue
records have been changed and further plaintiff has
constructed house in the allotted land which makes it
clear that, the partition amongst the parties to the suit
is given effect to and the said aspect of the matter
was ignored by both the courts below. Accordingly, he
sought for interference of this Court. In order to
buttress his arguments, he places reliance on the
judgment of the Hon'ble Supreme Court in the case of
Ravinder Kaur Grewal and Others vs. Manjit Kaur
and others reported in (2020) 9 SCC 706 and the
judgment of this Court in the case of Gangavva and
others vs. Ningavva and others reported in ILR
2008 KAR 1667.
14. Per contra, Sri.K.S.Karishetty, learned counsel for
the respondenst sought to justify the impugned
judgment and decree passed by the courts below. It is
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the categorical submission of the learned counsel for
the respondents that, though the defendant No.2 has
been given in adoption to Smt. Hampavva, however,
the said Adoption Deed was not given effect to and
even the adoptee himself, denied the adoption. He
also contended that, no adoption ceremony was
conducted at the time of adoption and further the
defendant No.2 was continued to be a member of joint
family of Karabasappa Nagabasappa Betur and
therefore, contended that, both the courts below have
rightly concurred in decreeing the suit.
15. Nextly, it is contended by the learned counsel for
the respondents that, the Vatni Patra dated
15.02.1992 was prepared as a family arrangement to
avail loan from the PLD Bank, and also to drill borewell
in the suit schedule property and the said
arrangement has been made to develop the schedule
properties and accordingly, submitted that there was
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no division of properties by metes and bounds and
accordingly, sought for dismissal of the appeal. In
order to support his arguments, he places reliance on
the judgment of the Hon'ble Supreme Court in the
case of Doddanarayana Reddy (D) by Lrs and
others v. C. Jayarama Reddy (D) by Lrs and
others reported in (2020) 4 SCC 649.
16. In the light of the submission made by the
learned counsel for the parties and having perused the
appeal papers would goes to show that, the plaintiff
has filed suit, seeking relief of partition and separate
possession in the suit schedule property. In order to
understand the relationship between the parties it is
relevant to extract the Genealogical Tree of the parties
which is reproduced as under:
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Karabasappa Nagabasappa Betur (Dead)
1) Suvarnamma (Dead) wife
2) Suvarnamma (Dead) wife
Suvarnamma (Halakatti) Suvarnamma (Kalyani)
Wife (dead) Wife (dead)
Nagabasappa Murageshappa Puttappa Shekharappa
Deft. No.1 Masur Deft No.2 Pltf
(Adopted)
17. Perusal of the same would indicate that, the
original propositus Karabasappa Nagabasappa Betur
had two wives namely, Survarnamma (Halakatti) and
Suvarnamma (Kalyani). Defendant No.1 and another
son-Murugeshappa (who was given adoption) were the
children of Karabasappa Nagabasappa Betur and
Suvarnamma Halakatti. Plaintiff and defendant No.2
are the children of Karabasappa Nagabasappa Betur
and Suvarnamma (Kalyani). The relationship between
the parties is not disputed. It is the case of the
plaintiff that, the plaintiff is entitled for 1/3rd share in
the suit schedule property. It is also stated that the
defendant No.1 was managing the affairs of the family
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as a kartha. It is also the case of the plaintiff that, a
temporary family arrangement was made during the
year 1992 to avail loan from the bank as well as to
develop the suit schedule property. It is also stated
that, the defendant No.2 has completed his education
and was a Medical Practitioner for more than 30 years,
and was continue to be the part of the family of
Karabasappa Nagabasappa Betur. On the other hand
the defendant No.1 stated that there was a partition in
the family on 15.02.1992 and same was reduced into
Vatni Patra and thereafter, the mutation have been
changed. It is also stated by the defendant No.1 that,
the defendant. No.2 was given in adoption as per the
registered Adoption Deed dated 06.08.1959. On
careful examination of the Apsat Vatni Patra- Ex.D1,
which makes it clear that there was division of
properties amongst the children of Karabasappa
Nagabasappa Betur and the plaintiff himself has
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changed the revenue records pursuant to the vardi
made to the revenue authorities. The change in
revenue entries has not been questioned by either of
the parties and further Item No.5 of the suit schedule
property which have been given to the plaintiff and in
the said suit schedule property, the plaintiff has
constructed the house which makes it clear that, there
was a partition in the family and therefore, both the
courts below have not properly appreciated Ex.D1-
Apsat Vatni Patra and arrived at a wrong conclusion
that, there was no partition and the said finding
required to be set aside in this appeal. It is also to be
noted that, the plaintiff at paragraphs 4 and 5 of the
plaint, reveals about the division of property. That
apart in the event, the defendant No.2 has not been
adopted, by Smt. Hampavva W/o. Murageppa Betur,
then, the defendant No.2 ought to have challenged
the mutation entries and the wardi given to the
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revenue authorities and would have claimed in the suit
schedule property. In that view of the matter, the Trial
Court has committed an error in putting onus on the
defendant No.1 to prove that, there is no adoption of
defendant No.2 in favour of Smt. Hampavva. Though
DW2- Puttappa deposes that, he has not been given
adoption, however, the Adoption Deed is a registered
document is operating in force and has not been
cancelled on account of any reason and same is more
than four decades old, which cannot be ignored by this
Court. In that view of the matter, the finding recorded
by Trial Court at paragraphs 15 and 16 of its judgment
is incorrect and contrary to record. It is also to be
noted that, the Trial Court. Erroneously comes to the
conclusion that DW2 has not proved the ceremony of
Datta Homa, and the said finding cannot be accepted
for the sole reasons that, DW2 is a Medical Practitioner
for more than four decades and if at all he has not
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been adopted, he should have challenged the same
and nullify the registered Adoption Deed. In that view
of the matter, perusal of Ex.D1-Apsat Vatni Patra and
Ex.D3-adoption letter itself makes clear that, there is
division of properties in the family of plaintiff and
defendants, both the defendant No.1 and the plaintiff
have divided the property between themselves,
excluding the defendant No.2, who being adopted to
the Smt. Hampavva W/o.Murageppa Betur. At this
stage, it is relevant to cite paragraphs 15 and 19 of
the judgment of this Court in the case of Gangavva
(supra), wherein this court stipulated the conditions to
prove the Deed of Adoption. Paragraphs 15 and 19
reads as under:
15. Before a presumption could be drawn under the
aforesaid provision, to the effect that the adoption has
been made in compliance of the provisions of the Act,
the conditions stipulated under the said Section have to
be fulfilled. The conditions to be fulfilled are:
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i) The registered document evidencing adoption should
be produced before the Court.
ii) It should be shown that the said document is signed
by the person giving the child in adoption.
iii) It should be shown that it is signed by the person
taking the child in adoption.
16. Only if the aforesaid all the three conditions are
fulfilled, the presumption contemplated under Section
16 of the Act could be drawn. However, the said
presumption is a rebuttable presumption. Once the
person discharges the aforesaid legal requirements, a
presumption is drawn in his favour and it is for the
person denying the adoption to lead evidence to rebutt
the presumption.
17. In the instant case, the original registered Adoption
Deed is produced. It bears the signature of the person
taking the child in adoption. But admittedly, it does not
bear the signature of the person giving the child in
adoption. The essence of adoption is in giving and
taking the child in adoption. The said act is to be
signified by the person giving and taking the child in
adoption by executing the deed of adoption. Then only
the factum of adoption is proved. Once the original
adoption deed produced did not bear the signature of
the person giving in adoption, then the presumption
under Section 16 of the Act is not attracted. That is
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precisely what the Courts below have held. In coming to
the said conclusion, they have relied on the judgment of
Bombay High Court in AIR 1981 BOMBAY 240 in the
case of Krishnabai Patil v. Ananda Patil, wherein it has
been held as under:
Presumption under Section 16 of the Hindu Adoption
and Maintenance Act is available only if the document
has been executed by both the persons taking the child
in adoption and the person giving the boy in adoption.
Further, the adoption deed executed only by person
taking in adoption, then such presumption
under Section 16 is not available.
18. Therefore, it cannot be said that the Courts below
committed any illegality in refusing to draw the
presumption under Section 16 of the Act.
19. It was next contended that the document is 30
years old and the presumption under Section 90 of the
Indian Evidence Act is attracted to the facts of the case
and therefore the Adoption is proved.
18. Following the declaration of law made by this
court, the finding recorded by the Trial Court with
regard to nullifying the Adoption Deed is incorrect,
which requires to be set aside. It is also to be noted
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that, as the Vatni Patra (Ex.D1) has been acted upon
and plaintiff has constructed house in the portion of
the land allotted to his share, which makes it clear
that, plaintiff is estoped from claiming share in the
suit schedule property. (See. (2020) 9 SCC 706)
19. Though the learned counsel for the respondents
argued that, both the courts below have concurrently
held against the appellants, herein however, this court
is having ample jurisdiction to interfere with the
concurrent findings of facts by the courts below, if the
both the courts below have misconstrued the
documents and arrive at a conclusion without
assessing evidence on record and therefore the
submission made by the learned counsel for the
respondents cannot be accepted.
20. In the case of THULASIDHARA AND ANOTHER
v. NARAYANAPPA AND OTHERS reported in
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(2019) 6 SCC 409, at paragraphs 7.2 and 7.3 of the
judgment, the Hon'ble Supreme Court has observed
thus:
"7.2 As observed and held by this Court in the case
of Kondiba Dagadu Kadam V. Savitribai Sopan Gujar,
(1999)3 SCC 722, in the Second Appeal under Section
100 of the CPC, the High Court cannot substitute its
own opinion for that of the First Appellate Court, unless
it finds that the conclusions drawn by the lower Court
were erroneous being:
(i) Contrary to the mandatory provisions of the
applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex
Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid
decision that if First Appellate Court has exercised its
discretion in a judicial manner, its decision cannot be
recorded as suffering from an error either of law or of
procedure requiring interference in Second Appeal. It is
further observed that the Trial Court could have decided
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differently is not a question of law justifying
interference in Second Appeal.
7.3. When a substantial question of law can be said to
have arisen, has been dealt with and considered by this
Court in the case of Ishwar Dass Jain V. Sohan Lal,
(2000) 1 SCC 434. In the aforesaid decision, this Court
has specifically observed and held:
10. Under Section 100 CPC, after the 1976
Amendment, it is essential for the High Court to
formulate a substantial question of law and it is not
permissible to reverse the judgment of the first
appellate court without doing so.
11. There are two situations in which interference
with findings of fact is permissible. The first one is when
material or relevant evidence is not considered which, if
considered, would have led to an opposite conclusion.
12. The second situation in which interference with
findings of fact is permissible is where a finding has
been arrived at by the appellate court by placing
reliance on inadmissible evidence which if it was
omitted, an opposite conclusion was possible.
13. In either of the above situations, a substantial
question of law can arise."
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21. The Hon'ble Supreme Court in the case of S.
SUBRAMANIAN v S RAMASAMY ETC. reported in
AIR 2019 SCC 3056, at paragraphs 8.1, 8.2 and 8.5
of the judgment, has observed thus:
"8.1. ...As per catena of decisions of this Court, while
deciding the second appeal under Section 100 of the
CPC, the High Court is not required to re-appreciate the
entire evidence on record and to come to its own
conclusion and the High Court cannot set aside the
findings of facts recorded by both the Courts below
when the findings recorded by both the Courts below
were on appreciation of evidence. That is exactly what
is done by the High Court in the present case while
deciding the second appeals, which is not permissible
under the law.
8.2. Even otherwise, it is required to be noted that as
per catena of decisions of this Court and even as
provided under Section 100 of the CPC, the Second
Appeal would be maintainable only on substantial
question of law. The Second Appeal does not lie on
question of facts or of law. The existence of 'a
substantial question of law' is a sine qua non for the
exercise of the jurisdiction under Section 100 of the
CPC. As observed and held by this Court in the case of
Kondiba Dagadu Kadam, in a second appeal under
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Section 100 of the CPC, the High Court cannot
substitute its own opinion for that of the First Appellate
Court, unless it finds that the conclusions drawn by the
lower Court were erroneous....
8.3. and 8.4. xxx xxx xxx
8.5. As observed hereinabove, while passing the
impugned Judgment and Order, the High Court has re-
appreciated the entire evidence on record as if the High
Court was deciding the first appeal. By the impugned
Judgment and Order, while exercising the powers under
Section 100 of the CPC and on re appreciation of entire
evidence on record, the High Court has set aside the
findings of facts recorded by both the Courts below on
blending of the suit properties with the joint family
properties. The same is wholly impermissible. So far as
the facts are concerned, the First Appellate Court is the
final court and unless and until the findings of facts
recorded by the Courts below are found to be
manifestly perverse and/or contrary to the evidence on
record, the High Court would not be justified in setting
aside the findings of facts recorded by the Courts below
which were on appreciation of evidence on record. It is
not permissible for the High Court to re appreciate the
entire evidence on record and come to its own finding
when the findings recorded by the Courts below, more
particularly, the First Appellate Court are on
appreciation of evidence. Therefore, the procedure
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adopted by the High Court while deciding the Second
Appeals, is beyond the scope and ambit of exercise of
its powers under Section 100 of Code of Civil Procedure.
High Court to re-appreciate the entire evidence on
record and come to its own finding when the findings
recorded by the Courts below, more particularly, the
First Appellate Court are on appreciation of evidence.
Therefore, the procedure adopted by the High Court
while deciding the Second Appeals, is beyond the scope
and ambit of exercise of its powers under Section 100
of the CPC."
22. Therefore, following the declaration of law made
by the Hon'ble Supreme Court referred to above, I am
of the opinion that, judgment referred to by the
learned counsel for respondents is not applicable to
the facts on record and the First Appellate Court has
not properly re-appreciated the material on record as
required under Order XLI Rule 31 of CPC and in the
light of the judgment of the Hon'ble Supreme Court in
the case of Santhosh Hazari vs. Purushottam
Tiwari reported in AIR 2001 SC 965 and this court
is of the opinion that, the judgment and decree passed
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by the courts below is suffered from perversity which
requires to be interfered in this appeal. Therefore, the
substantial question of law framed above favours the
defendant No.1/appellants herein. Hence, I pass the
following order:
ORDER
i) Regular Second Appeal is allowed;
ii) Judgment and decree dated 12.09.2014 in RA
No.21 of 2013 on the file of Senior Civil Judge
and JMFC, Hirekerur, dismissing the appeal and
confirming the judgment and decree dated
20.04.2013 in OS No.161 of 2004 on the file of
Civil Judge and JMFC, Hirekerur are hereby set
aside.
iii) Suit is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB
CT:GSM
