Karnataka High Court

Palpushparaj vs Sumithra on 27 June, 2025

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                                                  RSA No. 1480 of 2013


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                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 27TH DAY OF JUNE, 2025

                                        BEFORE
                       THE HON'BLE MR JUSTICE ASHOK S.KINAGI
                   REGULAR SECOND APPEAL NO. 1480 OF 2013 (PAR)
              BETWEEN:

              1.    PALPUSHPARAJ,
                    S/O LATE JAYARAJU,
                    AGED ABOUT 42 YEARS,
                    R/AT NO.1634, BDA B TYPE
                    AUSTIN TOWN, NEELASANDRA AREA,
                    BANGALORE - 560 047.

              2.    VASANTHA,
                    W/O LATE RAJAGOPAL,
                    AGED ABOUT 48 YEARS,
                    R/AT NO.673, MIDDLE STREET,
                    HUNSUR TOWN, HUNSUR.
Digitally
signed by     3.    SMT. NIRMALA,
SUNITHA K S         W/O DORESWAMY,
Location:           AGED ABOUT 47 YEARS,
HIGH COURT
OF                  R/A NO. 573, MIDDLE STREET,
KARNATAKA           HUNSUR TOWN, HUNSUR.
                                                          ...APPELLANTS
              (BY SMT. K.S. HARSHINI, ADVOCATE FOR
                  SMT. PRATHIMA ANAND, ADVOCATE)

              AND:

              1.    SUMITHRA,
                    W/O LATE VITTAL,
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                                      RSA No. 1480 of 2013


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     AGED ABOUT 46 YEARS,

2.   JAYARAMU,
     S/O LATE H.J. KUMAR,
     AGED ABOUT 26 YEARS,

3.   SOMU
     S/O LATE H.J. KUMAR,
     AGED ABOUT 24 YEARS,
     ALL ARE R/A NO.673/1, MIDDLE STREET,
     HUNSUR TOWN, HUNSUR
                                            ...RESPONDENTS
(BY SRI. RAMESH H.E, ADVOCATE FOR R1 AND R2;
    R3 - SERVED)

     THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 18.6.2013 PASSED IN
R.A.NO.87/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUNSUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 27.8.2011 PASSED IN
O.S.NO.109/2005 ON THE FILE OF THE CIVIL JUDGE & JMFC.,
HUNSUR.

    THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:    HON'BLE MR JUSTICE ASHOK S.KINAGI


                    ORAL JUDGMENT

This Regular Second Appeal is filed by the appellants

challenging the judgment and decree dated 18.06.2013,

passed in R.A.No.87/2011 by the learned Senior Civil

Judge at Hunsur.

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2. For convenience, the parties are referred to based

on their ranking before the trial Court. Appellant Nos.1 and

2 were the plaintiff Nos.1 and 2, appellant No.3 was

defendant No.4, and respondent Nos.1 to 3 were

defendant Nos.1 to 3. The plaintiffs filed a suit against the

defendants for partition and separate possession of a 1/4th

share in the suit schedule property.

3. Brief facts leading rise to the filing of this appeal

are as follows:

It is the case of the plaintiffs that the suit schedule

property originally belonged to one C.Perumal of Hunsur.

He had a daughter by name Papamma and a son named

Jayaraj. The suit schedule property fell to the share of

Jayaraj and other properties were allotted to Papamma.

Jayaraj died leaving behind the plaintiffs as his legal heirs.

Jayaraj and his wife Rajamma are Indian Christians and

are governed by Indian Succession Act, 1925. Plaintiff

Nos.1, 2, one Vittal and defendant No.4 are the children of

Jayaraj. Said Vittal died leaving behind his wife by name

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Sumithra and the children by name Jaramu and somu i.e.,

defendant Nos.1 to 3. The plaintiff and the defendants are

in joint possession and enjoyment of the suit schedule

property and the katha of the property stands in the name

C.Perumal i.e., the father of Jayaraj. The plaintiffs

demanded for partition and separate possession, but the

defendants refused to effect the partition. Therefore, a

cause of action arose for the plaintiffs to file a suit for

partition and separate possession. Hence, prays to decree

the suit.

3.1. Defendant Nos.2 and 3 filed a written statement

denying the averments made in the plaint, except for the

fact that C.Perumal was the original owner of the suit

schedule property and the relationship between the

parties. It is denied that subsequent to the death of

Perumal, Smt. Papamma and Jayaraj became the absolute

owners of the suit property. During the lifetime of their

father, he had given the suit property to the husband of

defendant No.1 H.J.Kumar @ Vittala Shanthakumar and

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was asked him to manage the family and to perform the

marriage of all their children. The husband of defendant

No.1 spent Rs.6,00,000/- for performing the marriage of

all his brothers and sisters. He has also renovated the

existing house by spending Rs.1,00,000/- and has paid

taxes of about Rs.60,000/-. Hence, it is contended that

subsequent to the death of Kumar, defendant Nos.1 to 3

are enjoying the suit property. The plaintiffs, inspite of

knowing that defendant No.1 is a widow, have filed this

false suit with an intention to harass her. Hence, prays to

dismiss the suit.

3.2. The Trial Court, based on the above said

pleadings, framed the following issues:

1) Whether the plaintiffs prove that suit schedule property is the joint family property of the plaintiffs and the defendants and they are in joint possession?

2) Whether the defendants prove that Papamma and Jayaraju were given the suit schedule property to the husband of 1st defendant under oral agreement and the

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defendants are in exclusive possession of the same?

3) Whether the defendants prove that this Court has no pecuniary jurisdiction to try this suit?

4) Whether the plaintiffs prove that they are entitled 1/4th share each in the suit schedule property?

5) Whether the plaintiffs are entitled for mesne profits?

6) What order or decree?

3.3. The plaintiffs, to substantiate their case,

plaintiff No.1 examined himself as PW-1, examined one

witness as PW.2 and marked 01 document as Ex.P1. On

the other hand, defendant No.1 examined as DW.1,

examined one witness as DW.2 and marked 01 document

as Ex.D1. The trial Court, after recording the evidence,

hearing both sides, and assessing the verbal and

documentary evidence, answered issue Nos.1 and 4 in the

affirmative, issue Nos.2 and 3 in the negative, issue No.5

answered accordingly and issue No.6 as per final order.

The suit of the plaintiffs was decreed and it was ordered

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and decreed that the plaintiffs were entitled for a 1/4th

share in respect of the suit schedule property.

3.4. Defendant Nos.1 to 3, aggrieved by the

judgment and preliminary decree dated 27.08.2011

passed in O.S.No.109/2005, preferred an appeal in

R.A.No.87/2011. The First Appellate Court, after hearing

the learned counsel for the parties, has framed the

following points for consideration:

1) Whether the appellants have made out sufficient ground to condone the delay in filing the appeal?

2) Whether the plaintiffs prove that suit schedule property is the absolute property of Jayaraj? If so, whether the plaintiffs are entitled for 1/4th share?

3) What order?

3.5. The First Appellate Court, after re-assessing the

verbal and documentary evidence, answered point Nos.1

and 2 in the affirmative and point No.3 as per the final

order. Consequently, the appeal was allowed, the

judgment and decree passed in O.S.No.109/2005 was set

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aside. Consequently, the suit filed by the plaintiffs was

dismissed. Plaintiff Nos.1, 2 and defendant No.4,

aggrieved by the judgment and decree passed in

R.A.No.87/2011, has filed this regular second appeal.

4. This Court, on 17.07.2014, admitted the appeal

to consider the following substantial questions of law :

1) Whether the reasons assigned by the appellate Court to interfere with the judgment of the trial Court are enough to sustain the judgment?

2) Whether the evidence on record is sufficient to decide the issue as to whether the parties are Christians or Hindus, if not, whether the appellant needs to be given an opportunity to lead additional evidence?

5. Heard the arguments of Miss. K.S.Harshini, for

Smt.Pratima Anand, learned counsel for the plaintiffs and

Sri Ramesh H.E, learned counsel for the defendants.

6. Learned counsel for the plaintiffs submits that

the First Appellate Court, while reversing the judgment

and decree passed by the trial Court, has not properly

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framed the points for consideration, and she also submits

that the First Appellate Court has not assigned any

reasons for reversing the judgment and decree passed by

the trial Court. She also submits that the First Appellate

Court has not recorded the findings on whether the parties

to the suit are Hindus or Christians and without recording

the same, has committed an error in dismissing the suit of

the plaintiffs. She also submits that the judgment and

decree passed by the First Appellate Court, is not in

compliance with Order XLI Rule 31 of CPC.

7. To buttress her arguments, she has placed a

reliance on the judgment of the Hon'ble Apex Court in the

case of H. SIDDIQUI (D) BY LR VS A. RAMALINGAM reported

in AIR 2011 SC 1492. Hence, on these grounds, she

prays to allow the appeal.

8. Per contra, learned counsel for the defendants

submits that the First Appellate Court has substantially

complied Order XLI Rule 31 of CPC and has discussed the

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entire evidence on record. The judgment and decree

passed by the First Appellate Court is just and proper and

does not call for any interference. Hence, on these

grounds, he prays to dismiss the appeal.

9. REG. SUBSTANTIAL QUESTIONS OF LAW NO.1 AND 2:

Substantial questions of law Nos.1 and 2 are discussed

together as they are interlinked with each other to avoid

the repetition of facts.

10. The plaintiffs filed a suit for partition and

separate possession on the grounds that the suit schedule

property was owned and possessed by Perumal, and after

his demise, the plaintiffs and the defendants, being the

legal heirs, have succeeded to the suit schedule property.

The plaintiffs and the defendants are tenants in common

and no partition has been effected between them. The

defendants filed a written statement contending that the

plaintiffs have no right to acquire the share in the suit

schedule property. The plaintiffs to substantiate their case,

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plaintiff No.1 was examined as PW.1 and PW.1 reiterated

the plaint averments in the examination-in-chief and got

marked one document as Ex.P1. On the other hand,

defendant No.1 was examined as DW.1, and he reiterated

the written statement averments in the examination-in-

chief and got marked one document as Ex.D1. The trial

court, after recording the evidence, held that the suit

schedule property is the joint family property of the

plaintiffs and the defendants, and they are in joint

possession of the same and held that the plaintiffs are

entitled to a 1/4th share each in the suit schedule property.

The defendants aggrieved by the judgment and

preliminary decree passed in O.S.No.109/2005, preferred

an appeal in R.A.No.87/2011, wherein the First Appellate

Court, after hearing the learned counsel for the parties,

framed the following points for consideration:

1) Whether the appellants have made out sufficient ground to condone the delay in filing the appeal?

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2) Whether the plaintiffs prove that suit schedule property is the absolute property of Jayaraj? If so, whether the plaintiffs are entitled for 1/4th share?

3) What order?

11. From the perusal of the points for consideration

framed by the First Appellate Court, the First Appellate

Court has misdirected itself and failed to consider the point

or issue involved in the suit for determination, "Whether

the parties to the suit are Hindus or Christians?" The

Hon'ble Apex Court in the case of H. SIDDIQUI (Supra),

considering the provisions contained under Order XLI Rule

31 of CPC, had observed that the said provisions provide

guidelines for the Appellate Court to proceed and decide

the appeal. It is further observed that the said provisions

provide guidelines for the appellate court as to how the

court has to proceed and decide the case. The provisions

should be read in such a way as to require that the various

particulars mentioned therein should be taken into

consideration. Thus, it must be evident from the judgment

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of the appellate court that the court has properly

appreciated the facts/evidence, applied its mind and

decided the case considering the material on record.

12. In para 18 of the judgment of H.SIDDIQUE

(Supra) case, the Hon'ble Apex Court, after considering its

several judgments observed that:

"18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that

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of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."

(Emphasis Supplied)

13. The First Appellate Court has not properly

framed the points for consideration and has not assessed

the evidence on record properly, except recording the

submissions of the learned counsel for the parties. It has

not applied its mind while reversing the judgment and

decree passed by the trial Court. The First Appellate Court

did not record any sufficient reasons for reversing the

judgment and decree passed by the trial Court. The

judgment and decree passed by the First Appellate Court

is contrary to the proposition laid down by the Hon'ble

Apex Court in the case of H.SIDDIQUE (Supra). Hence, on

this ground alone, the impugned judgment is liable to be

set aside. The First Appellate Court did not record whether

the parties to the suit were Christians or Hindus, without

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recording the findings regarding the status of the parties,

proceeded to set aside the judgment passed by the trial

court. Hence, the impugned judgment is liable to be set

aside.

In view of the above discussion, I answer substantial

question of law No.1 in the negative and substantial

question of law No.2 in the affirmative.

14. In view of the aforesaid facts and

circumstances, I proceed to pass the following:

ORDER

i. The Regular Second Appeal is dismissed.

ii. The judgment and decree passed in

R.A.No.87/2011 dated 18.06.2013 on the file of

the learned Senior Civil Judge, Hunsur is set aside.

iii. Appeal in R.A.No.87/2011 is restored.

iv. The First Appellate Court is directed to dispose of

the appeal in compliance with Order XLI Rule 31 of