Karnataka High Court
Sri. Rangappa vs Sri. Thimmappa on 28 September, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.927 OF 2014 (PAR)
BETWEEN:
1. SRI. RANGAPPA,
S/O LATE MURIGEPPA,
AGED ABOUT 42 YEARS,
2. SRI. YOGENDRAPPA,
S/O LATE MURIGEPPA,
AGED ABOUT 39 YEARS,
3. SRI. RAJAPPA,
S/O LATE MURIGEPPA,
AGED ABOUT 37 YEARS,
4. SRI. SIDDALINGAPPA,
S/O LATE MURIGEPPA,
AGED ABOUT 35 YEARS,
ALL ARE R/A KULENUR VILLAGE,
CHANNAGIRI TALUK - 577 213,
DAVANAGERE DISTRICT. ...APPELLANTS
[BY SRI. B.M. SIDDAPPA, ADVOCATE (PH)]
AND:
1. SRI. THIMMAPPA,
S/O LATE HANUMAPPA,
AGED ABOUT 64 YEARS,
R/AT KUNENUR VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
2. SMT. SIDDALINGAMMA,
W/O SIDDALINGAPPA, AGED MAJOR,
R/AT SOMANAGUDDA VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT - 577 522.
3. SMT. PREMAKKA,
W/O GANGAPPA @ GANGADHARAPPA,
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AGED MAJOR, R/AT NANAHALLI VILLAGE,
BANEHAHALLI POST,
CHALLAKERE TALUK - 577 522,
CHITRADURGA DISTRICT.
4. SMT. MANJULAMMA,
W/O KARIBASAPPA, AGED MAJOR
R/AT BASAVANA DEVANAKERE,
SANTHEBENNUR POST, CHANNAGIRI TALUK,
DAVANAGERE DISTRICT.
5. SRI. THIMMAPPA,
S/O SHARANAPPA, AGED MAJOR,
R/AT KULENUR VILLAGE,
SANTHEBENNUR HOBLI,
CHANNAGIRI TALUK - 0577 213,
DAVANAGERE DISTRICT.
6. SMT. SHARADAMMA,
W/O LATE SHARANAPPA, AGED MAJOR,
R/A KULENUR VILLAGE, SANTHEBENNUR HOBLI,
CHANNAGIRI TALUK - 577 213,
DAVANAGERE DISTRICT.
7. SRI. MALLAPPA,
S/O NAGAPPA, AGED MAJOR,
R/AT KULENUR VILLAGE,
SANTHEBENNUR HOBLI,
CHANNAGIRI TALUK - 577 213,
DAVANGERE DISTRICT. ...RESPONDENTS
[BY SRI A.CHANDRA CHUD, ADVOCATE FOR R1 (PH);
NOTICE TO R2 IS HELD SUFFICIENT V/O DTD: 22.02.2019;
R3 TO R7 NOTICE SERVED AND UNREPRESENTED]
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 10.06.2014 PASSED IN
R.A.NO.59/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC.,
CHANNAGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 29.01.2011 PASSED IN
O.S.NO.340/1995 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC.,
CHANNAGIRI.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 30.06.2022, THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE PRONOUNCED THE FOLLOWING:
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JUDGMENT
Challenging judgment and decree dated 10.06.2014 passed by Senior Civil Judge and J.M.F.C., at Channagiri in R.A.no.59/2011, this appeal is filed.
2. Appellants herein were plaintiffs no.1 to 4, while respondents no.1, 5 to 7 herein were defendants and respondents no.2 to 4 herein were plaintiffs no.5 to 7 in original suit. For sake of convenience, they shall hereinafter be referred to by their rank in original suit.
3. O.S.no.340/1995 filed by plaintiffs seeking for partition and separate possession of their 1/4th share in land bearing Sy.no.82 of Kulenoor village, measuring 10 acres 37 guntas including 13 guntas of kharab (hereinafter referred to as 'suit property').
4. In plaint, it was stated that one Thimmappa @ Gowda Thimmappa was common ancestor of plaintiffs and defendants who had five sons namely Hanumappa, Nagappa, Murigeppa (plaintiff), Sharanappa and Thimmappa. It was stated that last son Thimmappa died unmarried and issueless. Defendant no.1 was son of Hanumappa, defendants no.2 and 3 -4- son and wife of Sharanappa and defendant no.4 was son of Nagappa. It was stated that plaintiff's father was originally a native of Thirampura. After selling his share in joint family of his brothers, he migrated to Kulenoor. He got married and acquired suit property from one Thimmappa son of Rangappa. During life time of his father, plaintiff had not got registered suit land but had taken possession and continued as such. After his death, all sons of Thimmappa continued in possession of suit property by mutating name of Hanumappa was eldest son who was managing family affairs. Thereafter, original land owner Thimmappa s/o Rangappa executed relinquishment deed in favour of elder son Hanumappa. After his death about 38 years prior to suit, name of defendant no.1 was entered in revenue records. Thereafter, plaintiff took over management of joint family and khata of suit property continued in his name but pahani was in name of plaintiff.
5. Though father of defendant no.4 i.e. Nagappa went out of joint family long back, he was not provided with any portion of suit property. Thereafter about seven years prior to suit, even plaintiff and defendants no.1 to 3 decided to live separately. At that time, they entered into an arrangement to -5- cultivate suit property in bits from east to west for their livelihood. At that time even defendant no.4 was given some portion. It was understood that this arrangement was to continue till regular partition. But when plaintiff came to know that defendant no.1 at instigation of defendant no.4 had got his name entered in revenue records, plaintiff questioned same. On ground that khata and pahani stood in his name and therefore defendant no.1 was absolute owner, right of plaintiff in it was denied, giving rise to cause of action for filing suit.
6. On service of suit summons, defendant no.1 filed written statement admitting relationship between parties. It was stated that propositus Gowda Thimmappa also had a daughter by name Smt.Hiriyamma who was no more but survived by four sons. Averments regarding propositus migrating from Thirampura to Kulenoor and acquisition of and family arrangement in respect of suit property were denied. Death of Hanumappa was admitted but assertion regarding plaintiff taking over management of joint family was denied.
7. It was contended that there was no joint family in existence between plaintiff and defendants. It was stated that plaintiff's father Gowda Thimmappa and his sons Nagappa, -6- Murigeppa, Sharanappa and Thimmappa were residents of Thirampura village, Holalkere Taluk. Only father of defendant no.1 i.e. Hanumappa came out of family and migrated to Kulenoor village for coolie work. He began residing there. Thereafter he got married and his family members continued to reside in said village by doing agricultural coolie work and also by cultivating land of others, raising crop on guttige basis. It was stated that there was no joint family status between father of defendant no.1 and his brothers and suit property was his exclusive property.
8. It was specifically stated that suit property was originally purchased by one Dodderi Thimmappa s/o Rangappa in Government haraju in year 1941. Said Dodderi Thimmappa, a well wisher of father of defendant no.1 had purchased this land on request of father of defendant no.1 by paying amount contributed by father of defendant no.1. Therefore he executed relinquishment deed in favour of father of defendant no.1 on 24.06.1947. Therefore, he became its absolute and independent owner. His name was also mutated in revenue records. After his death, defendant no.1 became its absolute owner right from year 1946-47. As suit property was self acquired property of his -7- father Hanumappa, plaintiff could not seek partition in said property.
9. It was further stated that plaintiff-Murigeppa filed application to Tahsildar for grant of land as landless person. On said application he was granted 03 acres of land in Sy.no.77/2 of Kulenoor village as per SC.no.13/67-68. Thereafter, Murigeppa sold said property to one K. Eqbal Sab. Both at time of grant and sale, it was claimed as his individual property. Said conduct indicated that there was no joint family status between parties. Thereafter he purchased Sy.no.40/3 and Sy.no.40/4 in name of his wife Smt.Basamma, which indicated that there was no joint family status. It was alternatively contended that in case of finding about existence of joint family, then lands bearing Sy.no.72/2 measuring 03 acres and approximately 15 acres in Sy.nos.40/3, 40/4, 72/2 and 54/2 of Kulenoor village were also to be treated as joint family properties and subjected to partition. Thus non-inclusion of all joint family properties and non-joinder of all necessary parties was alleged.
10. Defendant no.4 filed separate written statement admitting relationship between parties and plaint averments. It -8- was stated that even he had sought partition of his share and therefore prayed for separating his 1/4th share in suit property.
11. Despite service of suit summons, defendants no.2 and 3 did not entered appearance. They were placed ex-parte.
12. Based on pleadings, trial Court framed following issues:
1. Whether the plaintiff proves that the suit property is joint family property of him and the defendants?
2. Whether the plaintiff proves that he is having 1/4th share in the suit property?
3. Whether the plaintiff is entitled for partition and separate possession of his 1/4th share in the suit property?
4. Whether the 1st defendant proves that the suit property is self acquired property?
5. Whether suit is bad for non-joinder of necessary parties and properties?
6. Whether suit is barred by limitation?
7. What order or decree?
13. During pendency of suit, original plaintiff-Murigeppa died. His children Rangappa, Yogendrappa, Rajappa, -9- Siddalingappa, Siddalingamma, Premakka and Manjulamma were brought on record as legal heirs.
14. Thereafter, plaintiff examined two witnesses as PW.1 and PW.2 and got marked exhibits P1 to P4, while defendant no.1 also examined himself and another as DW.1 and DW.2 and got marked exhibits D1 to D44.
15. On consideration, trial Court answered issues no.1 to 3 in affirmative; issues no.4 to 6 in negative and issue no.7 by decreeing suit holding plaintiffs entitled for partition and separate possession of his 1/4th share in suit property.
16. Aggrieved thereby, defendant no.1 preferred R.A.no.59/2011 on several grounds. It was contended that trial Court failed to appreciate evidence on record in proper perspective and arrived at wrong conclusion. Findings on issues were incorrect and reasons assigned were contrary to judicial principles of law.
17. Based on contentions urged, first appellate Court framed following points for its consideration:
1. Whether the plaintiff proves that the suit schedule property is the joint family property?
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2. Whether the plaintiff proves that he is having 1/4th share of the suit schedule property?
3. Whether the defendant no.1 proves that suit schedule property is the self acquired property of the father of the defendant no.1?
4. Whether the trial Court properly appreciated the materials on record in a proper perspective?
5. Whether the impugned judgment and decree requires interference of this Court?
6. What order or decree?
18. On consideration, first appellate Court answered points no.1, 2 and 4 in negative, points no.3 and 5 in affirmative and point no.6 by allowing appeal setting aside judgment and decree passed by trial Court.
19. Aggrieved by divergent findings this appeal is filed. Since all legal heirs of original plaintiff did not join in filing appeal, they were arrayed as respondents no.2 to 4.
20. Sri. B.M.Siddappa, learned counsel appearing for plaintiffs (appellants) submitted that relationship between parties was admitted. It was also admitted that propositus Gowda
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Thimmappa had five sons among whom, Thimmappa died unmarried and issueless. Therefore, after death of Gowda Thimmappa, other sons were entitled for 1/4th shares each in suit property. It was submitted that suit property was purchased by Gowda Thimmappa by selling properties situated in Thirampura which he got by partition with his brothers. Since father of defendant no.1 was kartha of joint family, it was mutated in his name in year 1947. Therefore it was joint family property of plaintiff and defendants and they were in joint possession and enjoyment of same and plaintiff was entitled for 1/4th share in it. Said claim was also supported by defendant no.4.
21. It was submitted that only ground on which defendant no.1 opposed suit claim was that it was his self acquired property. After trial Court framed seven issues, plaintiff no.2 and PW.2-Siddaramappa were examined to establish plaintiffs claim. Exhibits P1 to P4 record of rights of suit property for years 1979-80 to 1993-94 were marked. On other hand, defendant no.1 examined himself as DW.1 and got marked Exs.D1 to D32. Ex.D1 was certified copy of relinquishment deed of year 1947, Exs.D2 to D9 were mutation registered extracts,
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Ex.D10 was grant certificate of Murigeppa. Exs.D11 to D28 are RTC extracts in respect of suit property and Sy.nos.40/4, 40/3, 22/1, 77/P, 54/2 and 82. Ex.D29 was order of Tahsildar in respect of suit property and Exs.D30 and D31 kandaya receipts and Ex.D32 endorsement issued by Tahsildar in respect of Sy.no.22/1.
22. It was submitted that defendant no.4 examined as DW.2 got marked tax paid register extracts and kandaya receipts as Exs.D33 to D43 and also got marked RTC in respect of suit property for year 1993-94 as Ex.D44.
23. It was submitted that defendants specific pleading as per para-10(b) of written statement was that father of defendant no.1 paid money for purchase of suit property in Government auction to Dodderi Thimmappa. Thereafter, said Dodderi Thimmappa executed Ex.D1-relinquishment deed in favour of father of defendant no.1. However, there was no evidence led to substantiate manner of generation of said amount by father of defendant no.1.
24. It was submitted that first appellate Court erroneously concluded severance of joint family status by
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referring to alienation of land bearing Sy.no.77/2 and purchase of Sy.nos.40/3 and 40/4. Relying upon division Bench decision of this Court in case of S.B.Sampat Kumar v/s S.B.Parasmal and Another1, it was submitted that plea of non-inclusion cannot be raised against individual properties of wife of coparcener. It was further submitted that there was specific admission by DW.1 that as per RTCs produced, properties of Rathnamma were her self acquired properties.
25. It was further submitted that as on date of deposition i.e. on 25.09.2010, age of deponent was 60 years. Hence, as on date of execution of Ex.D1, deponent was not born. In fact, DW.1 admitted in cross-examination about this factual position. Therefore, DW.1 was incompetent to depose about events occurring prior to his birth. Attention was also drawn to admission that during life time of his father, there was no partition between father of defendant no.1 and his brothers. He also admitted that his father was managing family affairs after death of his grandfather and Sharanappa, Nagappa and plaintiff were residing in Kulenoor. It was contended that said evidence would destroy contention of defendant no.1 that there was 1 2021 (5) KCCR 1107
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severance of joint family and purchase of suit property in name of defendant no.1 was as his self acquired property. Relying upon decision of Hon'ble Supreme Court in case of Srinivas Krishnarao Kango v/s Narayan Devji Kango and Others2, it was submitted that burden of establishing property as self acquired property would be on party claiming it to be so. It was further submitted that admission regarding other brothers also residing in Kulenoor and admission regarding existence of joint family property, burden of proof would shift upon defendant to establish that suit property was self acquired property of defendant no.1. Observation of first appellate Court that only because father of defendant no.1 was kartha and there was no partition among family members, it cannot be presumed that property acquired by him was for benefit of joint family. It was submitted that even observation that land bearing Sy.no.77/2 granted to plaintiff as per EX.D10 would also be for benefit of joint family was contrary to record as grant was exclusively in name of plaintiff. It was submitted that in absence of pleadings regarding non-inclusion of all joint family properties and filing of counter claim by defendant no.1, first appellate Court erred in 2 AIR 1954 SC 379
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drawing adverse inference against plaintiff on basis of grant of Sy.no.77/2. Even presumption regarding separation of material fact by plaintiff would also be unsustainable. It was further submitted that there was absolute failure on behalf of defendant no.1 to establish that money for acquisition of suit property was his own earning.
26. In para-33, first appellate Court observed that since no sale deed was executed during life time of father of plaintiff and plaintiff failed to prove possession of suit property prior to execution of Ex.D1, it was established that suit property was not purchased by father of plaintiff and hence not joint family property, was contrary to findings of trial Court. It was submitted that without traversing reasons assigned by trial Court, first appellate Court arrived at such conclusion. Absence of cross- examination suggesting that Gowda Thimmappa did not have any property at Thirampura would probabilise plaintiff's case based on entries in Exs.P1 to P4-record of rights wherein name of plaintiff was shown in cultivator's column. Considering said evidence, trial Court concluded that suit property was joint family property and decreed plaintiff's claim.
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27. Insofar as Ex.D1 relying upon Division Bench decision of this Court in Ranganayakamma v/s K.S.Prakash3, it was submitted that relinquishment deed can only be executed between joint family members and in case it is from third party it could only be under a conveyance.
28. On above grounds, learned counsel sought for answering substantial questions of law framed, in favour of appellants and for allowing appeal.
29. On other hand, Sri. A. Chandra Chud, learned counsel appearing for respondent no.1 (defendant no.1) submitted that plaintiff's case in brief was that his father Gowda Thimmappa had five sons among whom Thimmappa died unmarried. Plaintiff-Murigeppa claimed that Gowda Thimmappa came out of joint family and migrated from Thirampura to Kulenoor village. There he acquired suit property from one Thimmappa s/o Rangappa but did not get it registered in his name even though he took possession. After death of plaintiff's father, property was standing in name of Hanumappa father of defendant no.1 as he was 'kartha' of joint family. Original owner 3 AIR 2005 KAR 426
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thereafter executed relinquishment deed in favour of father of defendant no.1, but it was joint family property and therefore plaintiff was entitled for share in it.
30. It was however submitted that actual fact was that though father of defendant no.1 - Hanumappa was belonging to joint family of Gowda Thimmappa, he came out of joint family, migrated to Kulenoor village, worked as coolie and cultivated land belonging to others on guttige basis. In 1941, his acquaintance Dodderi Thimmappa s/o Rangappa purchased suit property in Government auction, with money given by him. On said consideration, Dodderi Thimmappa executed relinquishment deed on 24.06.1947 transferring suit property in favour of father of defendant no.1. It was submitted that since suit property was acquired by father of defendant no.1 from third party and not from his ancestors, it was his self acquired property and plaintiff was not entitled for share in it. It was submitted that after execution of relinquishment deed, khata was transferred in name of father of defendant no.1 as per MR.no.500. After his death, it was mutated in name of defendant no.1 in terms of order passed by Tahsildar as per Ex.D29, which was well within knowledge of plaintiff. Though said order was passed prior to suit, same was
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neither referred to nor explained in plaint. In fact, Ex.D29 was also referred to in Ex.P4. Even then no appeal was filed against said order and revenue records stand in name of defendant no.1 till this day. Hence, plaintiff was not entitled for share in suit property.
31. Apart from above it was submitted that plaintiff had given application to Tahsildar, Channagiri for grant of land. In application he had stated that he was a landless person. On basis of said application, Tahsildar granted 03 acres of land in Sy.no.77/2 in Kulenoor village as per SC.no.13/1967-68-Ex.D10. It was submitted that though plaintiff claimed that he was member of joint family, he had not mentioned about said property in plaint. He however claimed it to be his independent property, during cross-examination. Thereafter on 16.04.1994, plaintiff sold said property to one K. Eqbal Sab as per Exs.D5 and D6 mutation extracts, on same day he purchased lands bearing Sy.no.40/3 measuring 03 acres 02 guntas and Sy.no.40/4 measuring 03 acres 01 gunta from said K. Eqbal Sab in name of his wife Smt.Basamma. Nature of transaction clearly indicates that property purchased in name of plaintiff's wife was from proceeds of sale of Sy.no.77/2. Therefore said properties were
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also required to be added as suit properties. However plaintiff filed suit for partition only in respect of suit property. Trial Court decreed suit only on assumption based on revenue entry in column-12(2) of record of rights showing name of plaintiff without appreciating documentary evidence of defendant no.1.
32. It was submitted that there was specific admission in plaint para-5 that about seven years prior to suit, due to misunderstanding, plaintiff and defendants decided to live separately and cultivate suit property in separate bits for their livelihood. Even defendant no.4 examined as DW.2 admitted during cross-examination that he did not know extent of property held by father of plaintiff in Thirampura. Considering these facts, first appellate Court allowed appeal. It was submitted that findings of first appellate Court regarding nature of suit property was a finding of fact by reference to evidence and on basis of proper conclusions. It was submitted that plaintiff failed to plead and establish that father of defendant no.1 had no income for paying consideration to acquire suit property and that such consideration came out of nucleus of joint family. Therefore there was no basis for contention that findings
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suffered from perversity. Hence, prayed for answering both substantial questions of law in affirmative and dismissed appeal.
33. Heard learned counsel on both side and perused record.
34. This appeal was admitted on 11.07.2014 to consider following substantial questions of law:
"1. Whether first appellate Court is right in law in reversing the judgment and decree passed by the trial Court without there being any illegality, perversity and capriciousness in the finding recorded by the trial Court?
2. Whether the appellate Court is right in rejecting the suit declining decree for partition on the opinion that acquisition of properties by the 1st defendant's father was his self acquisition, when the plaintiff has proved he had no income and that the consideration to acquire schedule properties was out of nucleus of the joint family."
35. Insofar as scope of interference with judgments of trial Court under Section 100 of C.P.C., Hon'ble Supreme Court in case of Karnataka Board of Wakf v/s Anjuman-E-Ismail Madris-Un-Niswan4 has held:
4
(1999) 6 SCC 343
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"13. In Ramanuja Naidu v/s V. Kanniah Naidu and Anr. [(1996) 3 SCC 392] this Court held:
"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166] this Court held:
"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
............
17. In the narration of facts of this case in the paragraphs hereinabove, we have referred to minimal facts of the case only to show that the question involved in the suit as well as in the appeal was a pure question of fact. The recitals in the documents produced by the plaintiff itself established on their face the facts necessary to settle the question in dispute, without even having to interpret the contents of the documents. The two courts below have correctly understood the same. In the instant case, if the learned Judge of the High Court felt that
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there was a need for examining the evidence to find out whether the findings of the lower courts were either perverse or not borne out of records then we would have expected him to refer to and discuss the evidence in detail, pointing out the fatal error committed by the courts below in their finding of fact. In the instant case, the High Court after quoting extensively from certain judgments of this Court and without pointing out how the ratio of those judgments applied to the facts of the present case, reversed the concurrent finding which, in our opinion, was wholly unwarranted. The trial court noted the specific admissions made by PW 1 during the course of his cross-examination which clearly negatived the case of the plaintiff/appellant. It also came to the conclusion that the evidence of PW 1 with reference to lack of opportunity given to the plaintiff was "clearly false". The first appellate court during the course of its judgment held that the plaintiff at the first appellate stage had filed a fabricated affidavit in support of its application under Order 41 Rule 27 CPC for additional evidence, and directed that steps should be taken to impound the affidavit in question and to keep the affidavit in safe custody for further action in the matter against the persons concerned. If really the High Court had applied its mind to the facts of the case, as understood by the two lower courts, then certainly it should have commented upon the above circumstances relied upon by the lower courts. All these facts noted above give us an impression that the High Court has interfered with the concurrent findings of the two courts below in a routine and casual manner by substituting its subjective satisfaction in the place of the lower courts."
36. As noted above, main basis for urging perversity was that there was no evidence to establish that father of defendant
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no.1 was having independent income to acquire suit property. Admission by DW.1 that his father's brothers were also residing in Kulenoor was ignored. Further, defendant no.1 admitted that he was not born at time of execution of Ex.D1. Therefore he was incompetent to depose about Ex.D1. Even fact that name of plaintiff Murigeppa was reflected in Exs.P1 to P4-record of rights of suit property from year 1979-80 to 1993-94 was not considered.
37. But it is a fact that there is insufficient pleading about when Gowda Thimmappa migrated to Kulenoor, how and when he purchased properties there and why Dodderi Thimmappa executed Ex.D1-relinquishment deed in favour of father of defendant no.1.
38. Further, defendant no.4 who supported plaintiff and examined as DW.2 admitted that he was unaware about extent of properties held by his father, was unaware which of them were sold and to whom. Suggestion that his father sold 04 acres of arecanut garden land and came to Kulenoor was denied.
39. Ex.D1 discloses that auction purchaser Dodderi Thimmappa obtained suit property for father of defendant no.1.
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It also discloses that from date of purchase, suit property was in possession and enjoyment of father of defendant no.1 and was therefore relinquished in favour of father of defendant no.1. Ex.D1 is not disputed. Above recital would probabilise version of defendant no.1. Therefore even if defendant no.1 was not born as on date of its execution, recitals would aid case of defendant no.1 more than that of plaintiff. Plaintiff vaguely claims suit property was purchased by his father by selling his share in his joint family before coming to Kulenoor. There is no material placed on record to support such claim. There is no assertion or explanation about father of plaintiff being acquainted with Dodderi Thimmappa s/o Rangappa. Therefore mere admission by DW.1 about brothers of his father also residing in Kulenoor would not be sufficient to hold that suit property was joint family property. Even contention that defendant no.1 failed to lead evidence to substantiate his contention that his father had given money to auction purchaser Dodderi Thimmappa s/o Rangappa to purchase suit property in auction would also not benefit plaintiff since it is settled law that plaintiff as to succeed on own
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merits and cannot take advantage of weakness of defendants case. In Rangammal v/s Kuppuswami,5 it is held:
"21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which clearly lays down that:
"101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.
22. In view of this legal position of the Evidence Act, it is clear that in the instant matter, when Respondent 1-plaintiff pleaded that the disputed property fell into the share of the plaintiff by virtue of the sale deed dated 24-2-1951, then it was 5 (2011) 12 SCC 220
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clearly for Respondent 1-plaintiff to prove that it was executed for legal necessity of the appellant while she was a minor. But, the High Court clearly took an erroneous view while holding that it is the appellant- defendant who should have challenged the sale deed after attaining majority as she had no reason to do so since Respondent 1-plaintiff failed to first of all discharge the burden that the sale deed in fact had been executed for legal necessity of the minor's predecessor mother was without the permission of the court. It was not the appellant-defendant who first of all claimed benefit of the sale deed or asserted its genuineness, hence the burden of challenging the sale deed specifically when she had not even been dispossessed from the disputed share, did not arise at all."
40. Insofar as contention of appellant regarding entry of name of plaintiff's father in record of rights of suit property, Ex.D29 discloses that after contest, Tahsildar passed order that name of defendant no.1 was required to be entered in revenue records. Though said order was passed prior to filing of suit, there is absolutely no mention about same in plaint.
41. About entry of name in revenue records, Hon'ble Supreme Court in Sawarni v. Inder Kaur6, has held: 6
(1996) 6 SCC 223
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"...Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment. ..."
42. Since plaintiff failed to lead specific evidence to substantiate that Gowda Thimmappa migrated from Thirampura to Kulenoor and acquired suit property, first appellate Court cannot be held to be in error in ignoring name of plaintiff's father in revenue records from year 1979 to 1994.
43. Thus there was sufficient basis for conclusion by first appellate Court that suit property was individual property of father of defendant no.1 and was not his joint family property. It has considered all evidence available to arrive at said conclusion.
44. This Court in S.B.Sampat Kumar's case (supra) while considering plea of non-inclusion held in para-24 that in absence of evidence that property belong to propositus it was not necessary to include it in suit. However in instant case,
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sequence of events on 16.04.1994, wherein plaintiff sells land bearing Sy.no.77/2 belonging to him to K. Eqbal Sab and on same day purchasing lands bearing Sy.nos.40/3 and 40/4 from K. Eqbal Sab in name of his wife clearly establish link between sale and purchase. If there was no partition, then property belonging to plaintiff was required to be shown in common hotchpotch. Therefore, ratio in S.B.Sampat Kumar's would not be of much assistance to appellants.
45. Insofar as ratio of decision in Srinivas Krishnarao Kango's case as indeed held that proof of existence of joint family does not lead to presumption that property held by any member of family is joint. But, it has held that said presumption would arise where it is established that family possessed of some joint property which from its nature and relative value could have formed nucleus from which property in question may have been acquired, burden would shift upon party alleging self acquisition to establish it. Admittedly, plaintiff has neither pleaded nor led evidence about extent and nature of property held by Gowda Thimmappa. Even defendant no.4 stated that he was unaware about joint family holding, their nature, whether they were sold and to whom. This evidence would rule out
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existence of joint family nucleus. In any case, there was no pleading or evidence to establish that father of defendant no.1 had availed funds from such nucleus. Further, there cannot be any two opinions about ratio in Ranganayakamma's case (supra).
46. In instant case, Ex.D1 is a registered instrument of relinquishment meeting legal requirements. Therefore said decision would be of no help to appellants.
47. Therefore, both substantial questions of law require to be answered in affirmative and against appellants.
48. Hence, I pass following:
ORDER i. Appeal is dismissed with costs.
ii. Judgment and decree dated 10.06.2014 passed by Senior Civil Judge and J.M.F.C., at Channagiri in R.A.no.59/2011 is confirmed.
Sd/-
JUDGE GRD