Karnataka High Court
Smt.Anasavva W/O. Nagappa Sannamani vs Smt.Neelavva W/O. Fakirappa Sannamani on 7 January, 2025
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RSA No. 100480 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100480 OF 2018 (PAR-)
BETWEEN:
SMT.ANASAVVA W/O. NAGAPPA SANNAMANI,
AGE:45 YEARS, OCC:AGRICULTURE / HOUSEHOLD,
R/O. HANCHINAL, TQ: KUNDAGOL,
DIST:DAHRWAD.
...APPELLANT
(BY SRI. R. H. ANGADI, SRI. M. S. HIREMATH AND
SRI. PRAKASH R. BADIGER, ADVOCATES)
AND:
1. SMT. NEELAVVA W/O. FAKIRAPPA SANNAMANI,
AGE:55 YEARS, OCC:HOUSEHOLD,
R/O. HANCHINAL, TQ:KUNDAGOL,
DIST:DHARWAD.
VN
2. SMT. BASAMMA W/O. SHIVANAND TIRALAPUR,
BADIGER AGE:35 YEARS, OCC:HOUSEHOLD,
R/O. BELAVADI, TQ:DIST:GADAG.
Digitally 3. DEVENDRAPPA S/O. FAKKIRAPPA SANNAMANI,
signed by V
N BADIGER AGE:75 YEARS, OCC:AGRICULTURE,
Date: R/O. HANCHINAL, TQ:KUNDAGOL,
2025.01.10
16:44:39
+0530
DIST:DHARWAD.
4. KUMARI SUDHA D/O. FAKKIRAPPA SANNAMANI,
AGE:21 YEARS, OCC:AGRICULTURE,
R/O. HANCHINAL, TQ:KUNDAGOL,
DIST:DHARWAD.
...RESPONDENTS
(BY SRI. C. S. NAGASHETTI, ADVOCATE FOR R1-R4;
SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R2-R4)
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RSA No. 100480 of 2018
THIS RSA IS FILED U/SEC.100 READ WITH ORDER 42 RULE
1 AND 2 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE PASSED IN R.A.NO.176/2016, DATED 06.01.2018,
PASSED BY THE SENIOR CIVIL JUDGE & JMFC., KUNDAGOL,
CONFIRMING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.43/2008 DATED 06.10.2016 PASSED BY THE CIVIL JUDGE
AND JMFC., KUNDAGOL AND CONSEQUENTLY DECREE THE SUIT
FILED BY THE PLAINTIFF.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by the plaintiff
challenging the judgment and decree dated 06.01.2018 in
R.A.No.176/2016 on the file of the Senior Civil Judge and
JMFC at Kundgol1 dismissing the appeal and confirming the
judgment and decree dated 06.10.2016 in
O.S.No.43/2008 on the file of the Civil Judge and JMFC at
Kundgol2 dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
hereinafter referred to as 'First Appellate Court'
hereinafter referred to as 'Trial Court'
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3. It is the case of the plaintiff that the plaintiff is
the wife of Nagappa Sannamani and the original defendant
is her brother-in-law. It is the case of the plaintiff that her
husband - Nagappa Sannamani died on 15.04.1999 and
thereafter the name of the plaintiff was entered in the
revenue records along with the defendant. It is also stated
in the plaint that the defendant has obstructed the joint
possession of the plaintiff in respect of the suit schedule
properties and as such, the plaintiff has filed
O.S.No.43/2008 before the Trial Court seeking the relief of
partition and separate possession in respect of the
schedule properties.
4. On service of notice, the defendant entered
appearance and filed detailed written statement and took
up a specific contention that the plaintiff is not the wife of
his brother - Nagappa Sannamani. It is also stated that
Nagappa Sannamani died as a bachelor and therefore
sought for dismissal of the suit.
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5. The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
establish their case, the plaintiff was examined as PW.1
and produced 14 documents and the same were marked
as Exs.P.1 to P.14. The defendant examined four
witnesses as DW.1 to DW.4 and produced five documents
as Exs.D.1 to D.5.
6. The Trial Court after considering the material on
record, by its judgment and decree dated 06.10.2016
dismissed the suit and feeling aggrieved by the same, the
plaintiff has preferred R.A.No.176/2016 on the file of the
First Appellate Court and the same was resisted by the
legal representatives of the original defendant. The First
Appellate Court after re-appreciating the material on
record, by its judgment and decree dated 06.01.2018,
dismissed the appeal, consequently confirmed the
judgment and decree in O.S.No.43/2008. Feeling
aggrieved by the same, the plaintiff has preferred this
Regular Second Appeal.
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7. This Court vide order dated 20.06.2019 framed
the following substantial question of law:
"1. Whether the Courts below are justified in
rejecting the documentary evidence
produced by the plaintiff at Ex.P- 5 to Ex.P-
7-Sale Deeds, wherein her name shows as
wife of Nagappa as owner of the property.
2. Whether the first Appellate Court is
justified in rejecting interim application filed
by the appellant under Order 42 Rules 1 and
2 of CPC."
8. I have heard Mr. R.H.Angadi for the appellant
and Mr. C.S.Nagashetti for the respondent.
9. Learned counsel appearing for the appellant
vehemently contended that both the Courts below have
misread the evidence on record particularly with regard to
the documents at Exs.P.1 to P.7 wherein the plaintiff and
the original defendant - Fakirappa had executed a
registered sale deed in respect of certain family properties
and therefore he contended that both the Courts below
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have misread the evidence on record in a right perspective
and accordingly sought for interference of this Court.
10. It is also submitted by Mr. R.H.Angadi, learned
counsel appearing for the appellant that the entire finding
recorded by both the Courts below is based on Ex.D.2 -
birth certificate of Revati, said to have been born to the
plaintiff and brother of the defendant - Nagappa.
However, the brother of the defendant - Nagappa died on
15.04.1999. In this regard, he submitted that the finding
recorded by both the Courts below requires to be
interfered with in this appeal.
11. Per contra, Mr.C.S.Nagashetti, learned counsel
appearing for the respondent submitted that as there is
concurrent finding of fact by both the Courts below,
therefore no interference is called for under Section 100 of
the Code of Civil Procedure3. It is also submitted by the
learned counsel appearing for the respondent that the
plaintiff is not the legally wedded wife of the brother of the
Hereinafter referred to as 'CPC'
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defendant and therefore, the findings recorded by both the
Courts below require to be confirmed in this appeal.
12. In the light of the submissions made by the
learned counsel appearing for the parties, I have carefully
examined the findings recorded by both the Courts below.
13. It is the principal submission of the learned
counsel appearing for the respondent that as there is
concurrent findings of the fact, this Court cannot exercise
the jurisdiction under Section 100 of CPC unless the
appellant has made out a case for no evidence in the
findings recorded by both the Courts below. In this aspect,
it is well settled principle in law that this Court normally
will not interfere with the findings of fact recorded by both
the Courts below unless the finding recorded by both the
Courts below are far from the evidentiary value and
misreading the documents by both the Courts below.
14. In order to answer the substantial questions of
law referred to above, it is expedient to consider the scope
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of Section 100 of the Code of Civil Procedure to interfere
with the concurrent findings of both the Courts below. In
this regard, it is relevant to cite the judgment of the
Hon'ble Supreme Court in the case of NAZIR MOHAMED
vs. J. KAMALA AND OTHERS4 at paragraph 22 to 33.4
held as follows:
"22. A second appeal, or for that matter, any
appeal is not a matter of right. The right of appeal is
conferred by statute. A second appeal only lies on a
substantial question of law. If statute confers a limited
right of appeal, the Court cannot expand the scope of the
appeal. It was not open to the Respondent-Plaintiff to re-
agitate facts or to call upon the High Court to reanalyze or
re-appreciate evidence in a Second Appeal.
23. Section 100 of the CPC, as amended, restricts
the right of second appeal, to only those cases, where a
substantial question of law is involved. The existence of a
"substantial question of law" is the sine qua non for the
exercise of jurisdiction under Section 100 of the CPC.
24. The High Court framed the following questions
of law:-
"1. Whether the Lower Appellate Court is
right in refusing the relief of possession especially
(2020) 19 SCC 57
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when the Lower Appellate Court granted relief of
mesne profits till delivery of possession?
2. Whether the Lower Appellate Court is
right in holding that the plaintiff is entitled to a
declaration in respect of half of the suit property
overlooking the pleadings and the documents of
title in the instant case?"
25. On behalf of the Appellant-Defendant, it has
strenuously been contended, and in our view, with
considerable force, that there was no question of law
involved in either of the second appeals, far less any
substantial question of law, to warrant inference of the
High Court in Second Appeal No. 64 of 2000.
26. The principles for deciding when a question of
law becomes a substantial question of law, have been
enunciated by a Constitution Bench of this Court in Sir
Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co.
Ltd. , where this Court held:-
"The proper test for determining whether a
question of law raised in the case is substantial
would, in our opinion, be whether it is of general
public importance or whether it directly and
substantially affects the rights of the parties and if
so whether it is either an open question in the
sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is
not free from difficulty or calls for discussion of
alternative views. If the question is settled by the
highest court or the general principles to be
applied in determining the question are well
settled and there is a mere question of applying
those principles or that the plea raised is palpably
absurd the question would not be a substantial
question of law."
27. In Hero Vinoth v. Seshammal2, this Court
referred to and relied upon Chunilal v. Mehta and Sons
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(supra) and other judgments and summarised the tests to
find out whether a given set of questions of law were
mere questions of law or substantial questions of law. The
relevant paragraphs of the judgment of this Court in Hero
Vinoth (supra) are set out hereinbelow:-
"21. The phrase "substantial question of law", as
occurring in the amended Section 100 CPC is not
defined in the Code. The word substantial, as
qualifying "question of law", means of having
substance, essential, real, of sound worth,
important or considerable. It is to be understood
as something in contradistinction with- technical,
of no substance or consequence, or academic
merely. However, it is clear that the legislature
has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general
importance" as has been done in many other
provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The
substantial question of law on which a second
appeal shall be heard need not necessarily be a
substantial question of law of general importance.
In Guran Ditta v. Ram Ditta, the phrase
'substantial question of law' as it was employed in
the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973)
came up for consideration and their Lordships held
that it did not mean a substantial question of
general importance but a substantial question of
law which was involved in the case. In Sir Chunilal
case, the Constitution Bench expressed agreement
with the following view taken by a Full Bench of
the Madras High Court in Rimmalapudi Subba Rao
v. Noony Veeraju: "5.... When a question of law is
fairly arguable, where there is room for difference
of opinion on it or where the Court thought it
necessary to deal with that question at some
length and discuss alternative views, then the
question would be a substantial question of law.
On the other hand if the question was practically
covered by the decision of the highest court or if
the general principles to be applied in determining
the question are well settled and the only question
was of applying those principles to the particular
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fact of the case it would not be a substantial
question of law."
28. To be "substantial", a question of law must be
debatable, not previously settled by the law of the land or
any binding precedent, and must have a material bearing
on the decision of the case and/or the rights of the parties
before it, if answered either way.
29. To be a question of law "involved in the case",
there must be first, a foundation for it laid in the
pleadings, and the question should emerge from the
sustainable findings of fact, arrived at by Courts of facts,
and it must be necessary to decide that question of law
for a just and proper decision of the case.
30. Where no such question of law, nor even a
mixed question of law and fact was urged before the Trial
Court or the First Appellate Court, as in this case, a
second appeal cannot be entertained, as held by this
Court in Panchagopal Barua v. Vinesh Chandra Goswami.
31. Whether a question of law is a substantial one
and whether such question is involved in the case or not,
would depend on the facts and circumstances of each
case. The paramount overall consideration is the need for
striking a judicious balance between the indispensable
obligation to do justice at all stages and the impelling
necessity of avoiding prolongation in the life of any lis.
This proposition finds support from Santosh Hazari v.
Purushottam Tiwari.
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32. In a Second Appeal, the jurisdiction of the High
Court being confined to substantial question of law, a
finding of fact is not open to challenge in second appeal,
even if the appreciation of evidence is palpably erroneous
and the finding of fact incorrect as held in Ramchandra v.
Ramalingam. An entirely new point, raised for the first
time, before the High Court, is not a question involved in
the case, unless it goes to the root of the matter.
33. The principles relating to Section 100 CPC
relevant for this case may be summarised thus :
33.1. An inference of fact from the recitals or
contents of a document is a question of fact, but the legal
effect of the terms of a document is a question of law.
Construction of a document, involving the application of
any principle of law, is also a question of law. Therefore,
when there is misconstruction of a document or wrong
application of a principle of law in construing a document,
it gives rise to a question of law.
33.2. The High Court should be satisfied that the
case involves a substantial question of law, and not a
mere question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit)
will be a substantial question of law, if it is not covered by
any specific provisions of law or settled legal principle
emerging from binding precedents, and, involves a
debatable legal issue.
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33.3. A substantial question of law will also arise in
a contrary situation, where the legal position is clear,
either on account of express provisions of law or binding
precedents, but the Court below has decided the matter,
either ignoring or acting contrary to such legal principle.
In the second type of cases, the substantial question of
law arises not because the law is still debatable, but
because the decision rendered 5 AIR 1963 SC 302 on a
material question, violates the settled position of law.
33.4. The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But it is
not an absolute rule. Some of the well-recognised
exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the courts have
wrongly cast the burden of proof. A decision based on no
evidence, does not refer only to cases where there is a
total dearth of evidence, but also refers to case, where
the evidence, taken as a whole, is not reasonably capable
of supporting the finding."
(emphasis supplied)
15. In the backdrop of arguments advanced by the
learned counsel appearing for the parties, it is the duty of
this Court to ascertain whether the impugned judgment
and decree passed by the Courts below suffer from
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'perversity'. What is to be considered as 'perversity' in the
impugned judgment was considered by the Hon'ble
Supreme Court in the case of DAMODAR LAL vs. SOHAN
DEVI AND OTHERS5 at paragraphs 8 to 14, which reads
as under:
"8. 'Perversity' has been the subject matter of umpteen
number of decisions of this Court. It has also been settled
by several decisions of this Court that the first appellate
court, under Section 96 of The Civil Procedure Code,
1908, is the last court of facts unless the findings are
based on evidence or are perverse.
9. In Krishnan v. Backiam and another, it has been
held at paragraph-11 that:
"11. It may be mentioned that the first appellate
court under Section 96 CPC is the last court of
facts. The High Court in second appeal under
Section 100 CPC cannot interfere with the findings
of fact recorded by the first appellate court under
Section 96 CPC. No doubt the findings of fact of
the first appellate court can be challenged in
second appeal on the ground that the said findings
are based on no evidence or are perverse, but
even in that case a question of law has to be
formulated and framed by the High Court to that
effect."
10. In Gurvachan Kaur and others v. Salikram (Dead)
Through Lrs., at paragraph 10, this principle has been
reiterated:
(2016) 3 SCC 78
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"10. It is settled law that in exercise of power
under Section 100 of the Code of Civil Procedure,
the High Court cannot interfere with the finding of
fact recorded by the first appellate court which is
the final court of fact, unless the same is found to
be perverse. This being the position, it must be
held that the High Court was not justified in
reversing the finding of fact recorded by the first
appellate court on the issues of existence of
landlord-tenant relationship between the plaintiff
and the defendant and default committed by the
latter in payment of rent."
11. In the case before us, there is clear and cogent
evidence on the side of the plaintiff/appellant that there
has been structural alteration in the premises rented out
to the respondents without his consent. Attempt by the
defendants/respondents to establish otherwise has been
found to be totally non-acceptable to the trial court as
well as the first appellate court. Material alteration of a
property is not a fact confined to the exclusive/and
personal knowledge of the owner. It is a matter of
evidence, be it from the owner himself or any other
witness speaking on behalf of the plaintiff who is
conversant with the facts and the situation. PW-1 is the
vendor of the plaintiff, who is also his power of attorney.
He has stated in unmistakable terms that there was
structural alteration in violation of the rent agreement.
PW-2 has also supported the case of the plaintiff. Even
the witnesses on behalf of the defendant, partially
admitted that the defendants had effected some
structural changes.
12. Be that as it may, the question whether there
is a structural alteration in a tenanted premises is not a
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fact limited to the personal knowledge of the owner. It
can be proved by any admissible and reliable evidence.
That burden has been successfully discharged by the
plaintiff by examining PWs-1 and 2. The defendants could
not shake that evidence. In fact, that fact is proved
partially from the evidence of the defendants themselves,
as an admitted fact. Hence, only the trial court came to
the definite finding on structural alteration. That finding
has been endorsed by the first appellate court on re-
appreciation of the evidence, and therefore, the High
Court in second appeal was not justified in upsetting the
finding which is a pure question of fact. We have no
hesitation to note that both the questions of law framed
by the High Court are not substantial questions of law.
Even if the finding of fact is wrong, that by itself will not
constitute a question of law. The wrong finding should
stem out on a complete misreading of evidence or it
should be based only on conjectures and surmises. Safest
approach on perversity is the classic approach on the
reasonable man's inference on the facts. To him, if the
conclusion on the facts in evidence made by the court
below is possible, there is no perversity. If not, the
finding is perverse. Inadequacy of evidence or a different
reading of evidence is not perversity.
13. In Kulwant Kaur and others v. Gurdial Singh
Mann (Dead) by Lrs., this Court has dealt with the limited
leeway available to the High Court in second appeal. To
quote paragraph-34:
"34. Admittedly, Section 100 has introduced a
definite restriction on to the exercise of jurisdiction
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in a second appeal so far as the High Court is
concerned. Needless to record that the Code of
Civil Procedure (Amendment) Act, 1976 introduced
such an embargo for such definite objectives and
since we are not required to further probe on that
score, we are not detailing out, but the fact
remains that while it is true that in a second
appeal a finding of fact, even if erroneous, will
generally not be disturbed but where it is found
that the findings stand vitiated on wrong test and
on the basis of assumptions and conjectures and
resultantly there is an element of perversity
involved therein, the High Court in our view will be
within its jurisdiction to deal with the issue. This
is, however, only in the event such a fact is
brought to light by the High Court explicitly and
the judgment should also be categorical as to the
issue of perversity vis-à-vis the concept of justice.
Needless to say however, that perversity itself is a
substantial question worth adjudication -- what is
required is a categorical finding on the part of the
High Court as to perversity. In this context
reference be had to Section 103 of the Code which
reads as below:
"103. Power of High Court to determine issues of
fact.- In any second appeal, the High Court may, if
the evidence on the record is sufficient, determine
any issue necessary for the disposal of the
appeal,--
(a) which has not been determined by the lower
appellate court or by both the court of first
instance and the lower appellate court, or
(b) which has been wrongly determined by such
court or courts by reason of a decision on such
question of law as is referred to in Section 100."
The requirements stand specified in Section 103
and nothing short of it will bring it within the ambit
of Section 100 since the issue of perversity will
also come within the ambit of substantial question
of law as noticed above. The legality of finding of
fact cannot but be termed to be a question of law.
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We reiterate however, that there must be a
definite finding to that effect in the judgment of
the High Court so as to make it evident that
Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India, after referring
to the decisions of this Court, starting with Rajinder
Kumar Kindra v. Delhi Administration, Through Secretary
(Labour) and others[5], it was held at paragraph-30:
"30. The findings of fact recorded by a court can
be held to be perverse if the findings have been
arrived at by ignoring or excluding relevant
material or by taking into consideration
irrelevant/inadmissible material. The finding may
also be said to be perverse if it is "against the
weight of evidence", or if the finding so
outrageously defies logic as to suffer from the vice
of irrationality. If a decision is arrived at on the
basis of no evidence or thoroughly unreliable
evidence and no reasonable person would act
upon it, the order would be perverse. But if there
is some evidence on record which is acceptable
and which could be relied upon, the conclusions
would not be treated as perverse and the findings
would not be interfered with. (Vide Rajinder Kumar
Kindra v. Delhi Admn. , Kuldeep Singh v. Commr.
of Police, Gamini Bala Koteswara Rao v. State of
A.P. and Babu v. State of Kerala.
(emphasis supplied)
16. It is also to be noted that the Constitution
Bench of Hon'ble Supreme Court in the case of SIR
CHUNILAL V. MEHTA AND SONS LTD., vs. CENTURY
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SPINNING AND MANUFACTURING CO. LTD.6 at
paragraphs 2 to 6 held as follows:
"(2) It is not disputed before us that the
question raised by the appellant in the appeal is one of
law because, which the, appellant is challenging is the
interpretation placed upon certain clauses of the
managing agency agreement which are the foundation of
the claim in suit. Indeed it is well settled that the
construction of a document of title or of a document
which is the foundation of the rights of parties
necessarily raises a question of law.
(3) The next question is whether the
interpretation of a document of the kind referred to
above raises a substantial question of law. For, Art.
133(1) provides that where the judgment, decree or final
order appealed from affirms the decision of the court
immediately below in any case other than a case
referred to in sub-cl. (c) an appeal shall lie to this Court
if the High Court certifies that the appeal involves some
substantial question of law. To the same effect are the
provisions of S. 110 of the Code of Civil Procedure. In
the old Judicial Commissioner's Court of Oudh the view
was taken that a substantial question of law meant a
question of general importance. Following that view its
successor, the Chief Court of Oudh, refused to grant a
certificate to one Reghunath Prasad Singh whose appeal
it had dismissed. The appellant, therefore, moved the
AIR 1962 SC 1314
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Privy Council for special leave on the ground that the
appeal raised a substantial question of law. The Privy
Council granted special leave to the appellant and while
granting it made the following observation in their
judgment:
"Admittedly here the decision of the Court
affirmed the decision of the Court immediately
below, and, therefore, the whole question turns
upon whether there is a substantial question of
law. There seems to have been some doubt, at
any rate in the old Court of Oudh, to which the
present Court succeeded, as to whether a
substantial question of law meant a question of
general importance. Their Lordships think it is
quite clear and indeed it was conceded by Mr.
De Gruyther that that is not the meaning, but
that "substantial question of law" is a
substantial question of law as between the
parties in the ease involved."
Then their Lordships observed that as the case
had occupied the High Court for a very long time and on
which a very elaborate judgment was delivered the
appeal on its face raised as between the parties a
substantial question of law. This case is reported in 54
Ind App 126: (AIR 1927 PC 110). What is a substantial
question of law as between the parties would certainly
depend upon the facts and circumstances of every case.
Thus for instance, if a question of law bad been settled
by the highest court of the country the question of law
however important or difficult it may have been regarded
in the past and however much it may affect any of the
parties would cease to be a substantial question of law.
Nor again, would a question of law which is palpably
absurd be a substantial question of law as between the
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parties. The Bombay High Court, however, in their earlier
decision already adverted to have not properly
appreciated the test laid down by the Privy Council for
ascertaining what is a substantial question of law.
Apparently the judgment of the Privy Council was
brought to their notice though they do not make a direct
reference to it, they have observed as follows:
"The only guidance that we have had from the
Privy Council is that, substantial question is not
necessarily a question which is of public importance. It
must be a substantial question of law as between-the
parties in the case involved. But hero again it must not
be forgotten that what is contemplated is not a question
of law alone; it must be a substantial question. One can
define it negatively. For instance, if there is a well
established principle of law and that principle is applied
to a given set of facts, that would certainly not be a
substantial question of law. Where the question of law is
not well settled or where there is some doubt as to the
principle of law involved, it certainly would raise a
substantial question of law which would require a final
adjudication by the highest Court." One of the points
which the learned judges of the Bombay High Court had
to consider in this case was whether the question of
construction to be Placed upon a decree was a
substantial question of law. The learned Judges said in
their judgment that the decree was undoubtedly of a
complicated character but even so they refused to grant
a certificate under S. 110 of the Code of Civil Procedure
for appeal to the Federal Court because the construction
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which the Court was called upon to place on the decree
did not raise substantial question of law. They have
observed that even though a decree may be of a
complicated character what the Court has to do is to look
at its various provisions and draw its inference
therefrom. Thus according to the learned Judges merely
because the inference to be drawn is from a complicated
decree no substantial question of law would arise.
Apparently in coming to this conclusion they omitted to
attach sufficient weight to the view of the Privy Council
that a question of law is "a substantial question of law"
when it affects the rights of the parties to the pro
ceeding. Further the learned Judges seem to have taken
the view that there should be a doubt in the mind of the
Court as to the principle, of law involved and unless
there is such doubt in its mind the question of law
decided by it cannot be said to be "a substantial question
of law" so as to entitle a party to a certificate under S.
110 of the Code of Civil Procedure. It is true that they
have not said in so many words that such a doubt must
be entertained by the Court itself but that is what we
understand their judgment to mean and in particular the
last sentence in the portion of their judgment which we
have quoted above.
(4) As against the view taken by the Bombay
High Court there are two decisions of the High Courts in
India to which reference was made before us. One is
Dinkkarrao v. Rattansey. In that case applying the Privy
Council's decision the High Court held that a question of
law is substantial as between the parties if the decision
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turns one way or another on the particular view taken of
the law. If the view taken does not affect the decision
then it cannot be substantial as between the parties ;
but it would be otherwise if it did, even though the
question may be wholly unimportant to others. It was
argued before the High Court on the basis of certain
decisions that no question of law can be substantial
within the meaning of S. 110 of the Code of Civil
Procedure unless the legal principles applied in the case
are not well defined or unless there can be some
reasonable divergence of opinion about the correctness
of the view taken and the case involves, a point of law
such as would call for fresh definition and enunciation.
Adverting to those cases Bose C. J., (as he then was)
whom Delivered the judgment of the Court observed as
follows :
"In the first case cited, it was also held that a
misapplication of principles of law does not raise any
substantial question of law so as to attract the operation
of S. 110.......
There can be no doubt that that is a view which
has been held by various High Courts in India, but the
decision cited' omit to consi- der two decisions of' their
Lordships of the Privy Council on this very point which. in
our (1) 1.L.R. (1949) Nag. 224 opinion, very largely
modify the views taken in the cases cited and which of
course it is impossible for us to ignore." (P. 226 of ILR
Nag): (at p. 301 of AIR) case the learned Chief Justice
observed as follows :
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Referring to the Privy Council case the learned
Chief Justice observed as follows:
"In the Lucknow case the only question was
whether the defendant there obtained an
absolute interest or a limited interest under a
will. That again was a question which was of no
interest to anyone outside the parties to the
suit. Nevertheless, their Lordships considered in
both cases that the questions were substantial
questions of law because they were substantial
as between the parties. We can only consider
this to mean that a question of law is substantial
as between the parties if the decision turns one
way or another on the particular view taken of
the law. If it does not affect the decision then it
cannot be substantial as between the parties.
But if it substantially affects the decision then it
is substantial as between the parties though it
may be wholly unimportant to others." (p. 228
of Nag LR): (at p. 302 of AIR)
It may be that in the case before it, the
Nagpur High Court was justified in granting
certificate because of the points involved was
the construction of a deed of compromise and
the High Court had interpreted that deed
differently from the court below. But it seems to
us that some of the observations of Bose C. J.,
are a little too wide. We are prepared to assume
that the learned Chief Justice did not intend to
say that where a question of law raised is
palpably absurd it would still be regarded as a
substantial question of law merely because it
affects the decision of the case one way or the
other. 'But at the same time his observation that
the view taken in the cases cited before him
requires to be modified in the light of the Privy
Council decision would imply that a question of
law is deemed to be a substantial question of
law even though the legal principles applicable
to the case are well defined and there can be no
reasonable divergence of opinion about the
correctness of the view taken by the High Court.
If we, have understood the learned Chief Justice
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right, we think that he has gone further than
was warranted by the decision of the Privy
Council in Raghunath Prasad Singh's case.
(5) The other case relied upon was Rimmalapudi
Subba Rao v. Noony Veeraju. In that case the test of the
kind suggested by Bose 'C.J., was rejected on the
ground that logically it would lead to the position that
even a palpably absurd plea raised by a party would
involve a substantial question of law because the
decision on the merits of the case would be directly
affected by it. What was, however, said was that when a
question of law is fairly arguable, where there is room
for difference of opinion on it or where the Court thought
it necessary to deal with that question at some length
and discuss alternative view, then the question would be
a substantial question of law. On the other hand if the
question was practically covered by the decision of the
highest court or if the general principles to be applied in
determining the question are well settled and the only
question was of applying those principles to the
particular fact of the case it would not be a substantial
question of law.
(6) We are in general agreement with the view
taken by the Madras High Court and we think that while
the view taken by. the Bombay High Court is rather
narrow the. one taken by the former High Court of
Nagpur is too wide. The proper test for determining
whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of
general public importance or whether it directly and
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substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it
is not finally settled by this Court or by the Privy Council
or by the Federal Court or is not free from difficulty or
calls for discussion of alternative views. If the question is
settled by the highest Court or the general. principles to
be applied in determining the question are well settled
and there is a mere question of applying those principles
or that the plea raised is palpably absurd the question
would not be a substantial question of law."
17. In the light of the judgments referred to above,
I have carefully examined the arguments advanced by the
learned counsel appearing for the parties and I have given
my anxious consideration with regard to the registered
sale deeds referred to at Exs.P.5 to P.7 wherein it is not
disputed that the plaintiff has been shown as the vendor
along with the original defendant in the aforementioned
sale deeds. It is also to be noted that both the plaintiff and
original defendant - Fakirappa were the signatory to the
aforementioned sale deeds at Exs.P.5 to P.7 and in the
sale deeds it is shown that the husband of the plaintiff as
Nagappa which makes it clear that the plaintiff as well as
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original defendant were in the possession of the joint
family properties.
18. In the backdrop of these aspect, I have
carefully examined the findings recorded by the Trial Court
at issue No.1 wherein the onus to prove the relationship
with the deceased Nagappa Sannamani was cast on the
plaintiff. In this regard, the plaintiff has produced the
relevant documents, particularly, Exs.P.5 to P.7 wherein
the plaintiff herself and the original defendant have
executed the registered sale deed.
19. It is also to be noted that both the Courts below
have solely relied upon Ex.D.2 - birth certificate of one
Revati wherein it has been shown that one Anasavva as
the mother and Nagappa as the father. It is forthcoming
from Ex.D.3 that the brother of the original defendant -
Nagappa Sannamani has died on 15.04.1999 and
therefore at no stretch of imagination a child would be
born to a dead person. In this regard, it is also to be noted
as to how the defendants were able to get the Ex.D.2 -
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NC: 2025:KHC-D:175
birth certificate of Revati from KIMS Hospital Hubballi. The
genuineness of the document itself is doubtful and further
a perusal of the evidence of DW.1 to DW.4 makes it clear
that except making allegation against the plaintiff that the
plaintiff is not the legally wedded wife of the brother of the
original defendant however, nothing has been shown by
the defendants to establish that the said Nagappa died as
a bachelor, in the suit.
20. Taking into consideration the factual aspects on
record and the findings recorded by both the Courts below,
I am of the view that both the Courts below have
misconstrued the factual aspect on record and have
arrived at a wrong conclusion that the plaintiff is not the
wife of the late Nagappa Sannamani. In that view of the
matter, the Trial Court though places reliance on Ex.D.2 as
sole testimony to dismiss the suit of the plaintiff, however
the First Appellate Court has not properly re-appreciated
the evidence on record as required under Order XLI Rule
31 of CPC in terms of the judgment of the Hon'ble
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Supreme Court in the case of Santosh Hazari vs.
Purushottam Tiwari (deceased) by LRs.7
21. Having taken note of the submission made by
the learned counsel appearing for the parties and the
findings recorded by both the Courts below, I am of the
view that both the Courts below were misguided with the
document referred to at Ex.D.2 and both the Courts below
have failed to analyse the same in the right perspective
and how the defendants were able to get the said Ex.D.2
from KIMS Hospital at Hubballi is made known today also.
No discussion has been made in this regard and therefore
taking into consideration the name of the plaintiff has
been shown in Exs.P.5 to P.7 which has been executed
during 1999, I find force in the submission made by the
learned counsel appearing for the appellant that both the
Courts below have committed an error in dismissing the
suit of the plaintiff.
(2001) 3 SCC 179
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22. In the result, the substantial questions of law
referred to above favour the plaintiff and accordingly I
pass the following:
ORDER
i) The appeal is allowed;
ii) The judgment and decree dated 06.01.2018 in
R.A.No.176/2016 on the file of the Senior Civil
Judge and JMFC at Kundgol is hereby set aside;
iii) The judgment and decree dated 06.10.2016 in
O.S.No.43/2008 on the file of the Civil Judge
and JMFC at Kundgol, dismissing the suit of the
plaintiff is hereby set aside;
iv) The suit of the plaintiff is decreed and the
plaintiff is entitled for ½ share in respect of the
suit schedule properties;
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v) Accordingly, the Registry is directed to draw the
decree in terms of the observations made
hereinabove.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
CT:ANB
