1. Whether defendant No.6 proves the alleged prior
partition as stated in para 7 of the written
statement?"
9. In order to prove the case, plaintiff herself
P.W.6 and marked documents at Exs.P.1 to P.12. On the
10. The Trial Court based on the pleadings, oral and
iii. Plaintiff proves that she along with defendant
suit schedule property by metes and bounds.
11. Aggrieved, the defendant preferred appeal
the Trial Court and dismissed the suit of the plaintiff.
12. This Court, while admitting the appeal, framed
2. Whether the appellate Court was justified in
coming to the conclusion that the plaintiff was
not the wife of Thammaiah @ Kempegowda,
when his brother's and sister's - (defendants)
did not contest the suit by filing a written
statement?"
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13. Learned counsel for the appellant and learned
counsel appearing for the respondents have been heard on
the substantial questions of law framed by this Court.
14. Learned counsel for the appellant submits that
the First Appellate Court being the last fact finding Court
ought to have rightly appreciated the entire oral and
documentary evidence and considered the documents
produced by the plaintiff, more particularly, Exs.P.8-
Lagnapathrike, Ex.P.9-Marriage invitation, Ex.P.10-
Genealogical Tree, Ex.P.11-marriage gift list and Ex.P.12-
voter's list, which clearly indicate that the plaintiff is the
wife of late Thammaiah @ Kempegowda and corroborated
with the evidence of P.W.2 to P.W.4, who are independent
witness, categorically deposed that the marriage of the
plaintiff with Thammaiah @ Kempegowda was solemnized
at Nittur Kodi Arkeswara Swamy Temple in the year 1982,
supporting the case of the plaintiff, which the Trial Court
on appreciation, rightly arrived at a conclusion that the
plaintiff is the wife of Thammaiah @ Kempegowda and the
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plaintiff is entitled for share in the suit schedule property.
The First Appellate Court has failed to consider the entire
oral and documentary evidence produced by the plaintiff
and doubted the genuineness of Ex.P.8 and P.9, when the
same document is not even referred to the forensic to
verify the veracity, having failed to do so, the First
Appellate Court ought not to have arrived at a conclusion
that Exs.P8 and P9 cannot be believed. Learned counsel
for the appellant submits that the substantial questions of
law need to be answered in favour of the appellant.
15. Per contra, learned counsel for the respondents,
justifying the judgment and decree of the First Appellate
Court, submits that the First Appellate Court has rightly
appreciated the entire pleadings, and evidence and arrived
at a conclusion that the plaintiff is not the wife of the
deceased Thammaiah @ Kempegowda. Drawing the
attention to the cross-examination of P.W.2 to P.W.4, it is
submitted that the evidence of witnesses cannot be relied
upon as they did not stand the testimony of cross-
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examination, and the evidence of D.W.1 to D.W.3 clearly
establishes that Kempegowda died unmarried and the
plaintiff is not the wife of Kempegowda to claim share in
the suit schedule properties.
16. This Court has carefully considered the rival
contentions urged by the learned counsel for the parties
and perused the material on record.
17. Plaintiff, claims to be a wife of Thammaiah @
Kempegowda, contends that their marriage took place in
the year 1982, the plaintiff has claimed her right based on
the status of wife of Thammaiah @ Kempegowda, who was
admittedly a coparcener along with defendant Nos.1 to 4.
The plaintiff, in support of her contention, has produced
the documentary evidence Lagna Patrike at Ex.P.8,
Wedding Card at Ex.P.9, voters list at P.12 to establish her
marital status with Thammaiah @ Kempegowda. In
support of the documentary evidence, the plaintiff has also
relied upon the independent evidence of P.W2 to P.W.4.
P.W.2 is the brother of the plaintiff, P.W.3 is Kemparaju,
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P.W.4 is one Sridharamurthy, who is the son of the priest,
who has performed the marriage of the plaintiff with
Thammaiah @ Kempegowda. P.W.5 -one K.R. Shivanna
and P.W.6-Rathanamma who all deposed in their evidence
that the marriage of the plaintiff was solemnized with
Thammaiah @ Kempegowda at Nittur Kodi Arkeswara
Swamy Temple in the year 1982, which clearly supports
the case of the plaintiff.
18. The credibility of their evidence remains
unshaken in the cross examination and in spite of the
same, the First Appellate Court disbelieved the evidence of
the plaintiff and the documentary evidence produced by
the plaintiff, more particularly the lagna patrike at Ex.P.8
and the wedding card at Ex.P.9, which was on an
undisputed point of time and the plaintiff's evidence
corroborated with the oral and documentary evidence
establishes that the plaintiff is the wife of Thaimmaiah @
Kempegowda. The First Appellate Court, on erroneous
finding, disbelieves these documents and arrives at a
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totally different conclusion and dismisses the suit of the
plaintiff without considering that the Trial Court's
judgment was on thorough examination of all the oral and
documentary evidence.
19. The First Appellate Court being the last fact
finding Court ought to have rightly appreciated the entire
oral and documentary evidence in a proper perspective.
The Apex Court in the case of Santosh Hazari v.
Purushottam Tiwari1 (Santosh Hazari) has clearly laid
down that the appeal under Section 96 of the CPC is a
valuable right and the First Appellate Court has to carefully
appreciate the entire oral and documentary evidence,
when a reversal is made by the First Appellate Court
should be more cautious. The First Appellate Court while
reversing the finding of fact must come into the close
quarters with the reasoning assigned by the Trial Court
and then assign its own reason for arriving at a different
finding. This would satisfy the Court hearing the further
(2001) 3 SCC 179
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appeal that the First Appellate Court had discharged the
duty accepted by it. The Apex Court in the case of
Santosh Hazari stated supra at paragraph No.15 held as
under:
"15. A perusal of the judgment of the trial
court shows that it has extensively dealt with
the oral and documentary evidence adduced by
the parties for deciding the issues on which the
parties went to trial. It also found that in
support of his plea of adverse possession on
the disputed land, the defendant did not
produce any documentary evidence while the
oral evidence adduced by the defendant was
conflicting in nature and hence unworthy of
reliance. The first appellate court has, in a very
cryptic manner, reversed the finding on
question of possession and dispossession as
alleged by the plaintiff as also on the question
of adverse possession as pleaded by the
defendant. The appellate court has jurisdiction
to reverse or affirm the findings of the trial
court. First appeal is a valuable right of the
parties and unless restricted by law, the whole
case is therein open for rehearing both on
questions of fact and law. The judgment of the
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appellate court must, therefore, reflect its
conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court. The task of an appellate
court affirming the findings of the trial court is
an easier one. The appellate court agreeing
with the view of the trial court need not restate
the effect of the evidence or reiterate the
reasons given by the trial court; expression of
general agreement with reasons given by the
court, decision of which is under appeal, would
ordinarily suffice (See Girijanandini Devi v.
Bijendra Narain Choudhary [AIR 1967 SC
1124] ). We would, however, like to sound a
note of caution. Expression of general
agreement with the findings recorded in the
judgment under appeal should not be a device
or camouflage adopted by the appellate court
for shirking the duty cast on it. While writing a
judgment of reversal the appellate court must
remain conscious of two principles. Firstly, the
findings of fact based on conflicting evidence
arrived at by the trial court must weigh with
the appellate court, more so when the findings
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are based on oral evidence recorded by the
same Presiding Judge who authors the
judgment. This certainly does not mean that
when an appeal lies on facts, the appellate
court is not competent to reverse a finding of
fact arrived at by the trial Judge. As a matter
of law if the appraisal of the evidence by the
trial Court suffers from a material irregularity
or is based on inadmissible evidence or on
conjectures and surmises, the appellate court
is entitled to interfere with the finding of fact.
(See Madhusudan Das v. Narayanibai [(1983)
1 SCC 35 : AIR 1983 SC 114] ) The rule is --
and it is nothing more than a rule of practice --
that when there is conflict of oral evidence of
the parties on any matter in issue and the
decision hinges upon the credibility of
witnesses, then unless there is some special
feature about the evidence of a particular
witness which has escaped the trial Judge's
notice or there is a sufficient balance of
improbability to displace his opinion as to
where the credibility lie, the appellate court
should not interfere with the finding of the trial
Judge on a question of fact. (See Sarju
Pershad Ramdeo Sahu v. Jwaleshwari Pratap
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Narain Singh [1950 SCC 714 : AIR 1951 SC
120] ) Secondly, while reversing a finding of
fact the appellate court must come into close
quarters with the reasoning assigned by the
trial court and then assign its own reasons for
arriving at a different finding. This would
satisfy the court hearing a further appeal that
the first appellate court had discharged the
duty expected of it. We need only remind the
first appellate courts of the additional
obligation cast on them by the scheme of the
present Section 100 substituted in the Code.
The first appellate court continues, as before,
to be a final court of facts; pure findings of fact
remain immune from challenge before the High
Court in second appeal. Now the first appellate
court is also a final court of law in the sense
that its decision on a question of law even if
erroneous may not be vulnerable before the
High Court in second appeal because the
jurisdiction of the High Court has now ceased
to be available to correct the errors of law or
the erroneous findings of the first appellate
court even on questions of law unless such
question of law be a substantial one."
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20. The findings of the First Appellate Court is
legally unsustainable and the First Appellate Court was not
justified in holding that the marriage of the plaintiff with
Thammaiah @ Kempegowda was not proved when there
were sufficient and reliable documents and oral evidence
produced by the plaintiff to substantiate that she is the
wife of Thammaiah @ Kempegowda.
21. The Trial court, by the judgment and decree,
granted share to the mother and excluded the daughter,
who was defendant No.6 and awarded 1/6th share. Now in
light of the death of the mother, the share needs to be
divided among the other coparceners who are plaintiff and
defendant Nos.2 to 6 and accordingly, they are entitled for
1/6th share and plaintiff and defendant Nos.2 to 6 are
entitled for 1/6th share. For the forgoing reasons, the
substantial questions of law framed by this Court are
answered in favour of the appellant/plaintiff and this Court
pass the following:
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ORDER
i. The regular second appeal is allowed.
ii. Judgment and decree of the First Appellate
Court is set aside and the judgment and
decree of the Trial Court stands modified
holding that the plaintiff and defendant Nos.2 to
6 are entitled for 1/6th share.
iii. Decree to be drawn accordingly.
Sd/-
________________________
JUSTICE K.S. HEMALEKHA
MBM
