Karnataka High Court
Smt. Devi Hengsu vs Sri Manjayya on 23 November, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
RSA 1052/2007
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.1052/2007
BETWEEN:
1. Smt. Devi Hengsu
Aged about 60 years,
D/o late Govinda.
2. Sri Venkata
Aged about 45 years,
S/o late Govinda.
Both residing at
Huli Handla,
Thaggarse Village & Post,
Kundapura Taluk. ... APPELLANTS
(By Sri T.N.Raghupathy, Adv.)
AND:
1. Sri Manjayya
Aged about 85 years,
Nephew of Byra,
Residing at Huli Handla,
Malkal, Thaggarse Village & Post,
Kundapura Taluk.
1(a) Chandu Hengsu
Aged 65 years,
Wife.
1(b) Seethu
Aged 45 years,
Daughter.
RSA 1052/2007
2
1(c) Bichu
Aged 42 years,
Daughter.
1(d) Narayan
Aged about 40 years,
Son.
1(e) Sadhu
Aged 38 years,
Daughter.
1(f) Mookambu
Aged 36 years,
Daughter.
1(g) Janardhan
Aged 43 years,
Son.
1(h) Sekhar
Aged 32 years,
Son.
1(i) Babi
Aged 30 years,
Daughter.
1(j) Uday
Aged 28 years,
Son.
All are residing at
Huli Handla, Kelamane, Maika;
Thaggarse Village & Post,
Kundapura Taluk,
Dakshina Kannada District.
2. Sri Kalu Hengsu
Aged about 90 years,
w/o late Govinda.
RSA 1052/2007
3
3. Sri Buddu Hengsu
Aged about 56 years,
4. Parvathi Hengsu
Aged about 54 years,
5. Masthi Hengsu
Aged about 51 years,
6. Sanjeeva
Aged about 44 years,
3 to 6 are the children of late Govinda.
2 to 6 are residing at Huli Handla
Thaggarse village & post,
Kundapura Taluk. ... RESPONDENTS
(By Sri Vyasa Rao K.S., Adv. for R1(a to j);
R2 to R6 - served & unrepresented)
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 19.01.2007 passed in
R.A.No.46/2001 on the file of the Civil Judge, (Sr. Dn.),
Kundapura, dismissing the appeal and confirming the judgment
and decree dated 12.04.2001 passed in OS. No.589/1991 on the
file of the II Addl. Civil Judge, (Jr. Dn.), Kundapura.
This appeal having been heard and reserved for judgment
on 16.11.2021, coming on for 'Pronouncement of Judgment', this
day, the Court delivered the following:
JUDGMENT
1. This appeal is filed by plaintiff nos.2 & 6 challenging the judgment and decree dated 12.04.2001 passed by the II Addl. Civil Judge (Jr.Dn.), Kundapura (hereinafter referred to as 'the Trial Court') in O.S.No.589/1991 and the judgment and decree dated 19.01.2007 passed by the RSA 1052/2007 4 Civil Judge (Sr.Dn.), Kundapura (hereinafter referred to as 'the First Appellate Court') in R.A.No.46/2001, wherein the courts below have dismissed the suit filed by the plaintiffs seeking partition of the suit schedule property into two equal shares and allotment of one share to the plaintiffs with future profits and costs.
2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, plaintiffs had filed the suit in O.S.No.589/1991 before the Trial Court claiming that the suit schedule property belonged to late Govinda and the defendant herein jointly on ancestral muli right. Plaintiffs claim to be the legal heirs of late Govinda and on the ground that late Govinda and the defendant were the joint owners of the suit schedule property, they claimed equal share in the suit schedule property. It is the case of the plaintiffs that inspite of their demand, RSA 1052/2007 5 defendant had failed to partition the suit schedule property, and therefore, they had filed the suit.
4. The defendant on service of suit summons, had entered appearance and filed a detailed written statement denying the plaint averments. It has been specifically contended on behalf of the defendant that the suit schedule property did not belong to late Govinda and the defendant jointly, and the defendant was never in joint possession and enjoyment of the suit schedule property with the plaintiffs. It is also specifically contended that the ancestors of Govinda and the ancestors of the defendant who are the members of Aliyasanthana family belonged to separate Kavaru and the family property which was held on leasehold rights under Mookambika Temple, Kollur, was partitioned between three Kavarus comprising of Marli, grandmother of the defendant and the grandmother of one Nandayya about 100 years ago. It is also further pleaded that the suit schedule property was granted to one late Baira on Darkhast who is the maternal uncle of the defendant for the benefit of his branch family, and RSA 1052/2007 6 therefore, the other branch family members do not have any right over the suit schedule property. Defendant is the son of Venkamma who also had one daughter by name Chikkamma and the said Chikkamma had died without any issues. Defendant's mother - Venkamma is the sister of Baira. After the death of Baira in the year 1946 and after the death of Chikkamma in the year 1970, the defendant has been enjoying the suit schedule property which is within the knowledge of the plaintiffs. It was also contended that the possession of the defendant was adverse to the interest of the plaintiffs, and therefore, he had perfected his right over the suit schedule property also by way of adverse possession, and accordingly, had prayed to dismiss the suit.
5. Based on the rival pleadings, the Trial Court had framed the following issues:
Issues
1) Whether the plaintiffs prove that the plaint 'A' schedule property was jointly owned by Govinda and defendant on mooli right?
2) Whether the plaintiffs prove that Govinda had any right, title or interest over the suit land?RSA 1052/2007 7
3) Whether the defendant proves that the suit land was granted to his maternal uncle heirs on Darkasth for and on behalf of his branch family?
4) Whether the partition of the family lands of the ancestors of the defendant and Govidna as pleaded is true?
5) Whether the defendant proves that he had perfected his right over the suit land by adverse possession?
6) Whether the plaintiffs are entitled to 1/2 share in the suit 'A' schedule lands with mesne profit as sought for?
7) What order or decree?
6. During the course of trial, plaintiff no.6 was examined as PW-1 and another witness by name Venka Poojary was examined as PW-2 and four documents were produced and marked on behalf of the plaintiffs at Exs.P-1 to P-4. In support of the defence, Smt. Chandu who is the wife of the defendant was examined as DW-1 and nine documents were produced and marked at Exs.D-1 to D-9. After completion of the evidence, the arguments of both sides were heard by the Trial Court and during the course of arguments, defendant along with his notes of arguments had submitted a genealogy tree which reads as under: RSA 1052/2007 8 RSA 1052/2007 9
7. The Trial Court on appreciation of oral and documentary evidence available on record, answered Issue nos.1 to 3 and 5 to 6 in the negative and Issue no.4 in the affirmative and by its judgment and decree dated 12.04.2001, dismissed the suit. The Regular Appeal filed by the plaintiffs was also dismissed by the First Appellate Court by its judgment and decree dated 19.01.2007. Being aggrieved by the same, plaintiffs 2 & 6 have approached this Court in this Regular Second Appeal.
8. This Court, on 12.06.2009 while admitting the appeal for hearing, has framed the following substantial question of law:
"Whether the courts below were justified in holding that Sanna Marli and Venkamma are not sister in view of the recitals in Ex.D5 where the defendant has referred to Govinda as his brother?
9. Learned Counsel for the appellants submitted that the suit schedule property was granted to late Baira who had two sisters by name Marli and Venkamma. Late Govinda is the son of late Marli and the plaintiffs are the RSA 1052/2007 10 children of late Govinda. The defendant is the son of late Venkamma who is the other sister of late Baira. He submitted that after the death of Baira, the suit schedule property devolves upon the children of his sisters since late Baira as well as the plaintiffs and defendant are members of Aliyasanthana family. He has referred to Exs.D-5, D-6 & D-7 and points out that in the said documents, there is a reference that late Govinda was the nephew of late Baira and Govinda is the brother of the defendant. These documents are undisputed documents under which the occupancy rights of the agricultural property belonging to Kollur Mookambika Temple was granted in favour of the members of Aliyasanthana family of the plaintiffs and the defendant. He has submitted that in the said documents, there is a specific admission with regard to the relationship of defendant, late Govinda and late Baira by the defendant, and therefore, having regard to Order XII Rule 6 CPC, the suit is required to be decreed on the basis of the said admission. He has relied upon the following judgments in support of his case. RSA 1052/2007 11
i) Sri Ravinder Pal Singh Vs Hanif A Haroon - AIR 2004 DEL 383;
ii) Raj A.Menda Vs Rani Rasamani Real Estate - AIR 2007 KAR 560;
iii) Premsuk Das Assaram Vs Udairam Gungabux -
ILR 1918 45 CAL 138.
10. Per contra, learned Counsel for the defendant submits that the plaintiffs failed to plead and prove that their grandmother - Marli was the sister of Baira and after the death of Baira, the suit schedule property which has been granted to him has devolved to the plaintiffs as well as the defendant who are the surviving legal representatives of Smt. Marli and Smt. Venkamma who are allegedly the sisters of Baira. He refers to the genealogical tree produced by him before the Trial Court and submits that Baira had only one sister by name Venkamma and Govinda S/o Sanna Marli belongs to a separate Kavaru. He submits that the three Kavarus have separated about 100 years ago after a partition was effected in respect of the agricultural properties which was held by the Kutumba on RSA 1052/2007 12 leasehold rights. He refers to the cross-examination of PW- 1 and submits that there is a specific admission to the effect that Baira and Venkamma are brother and sister. He submits that the plaint is bereft of basic facts and in the absence of any pleadings on the basis of the evidence produced by the parties, no relief can be granted to them. In support of this submission of his, he has relied upon the judgment of this Court in the case of RUDRAWWA VS BALAWWA & ANOTHER - 1967(1) KLJ 71. He submits that the observation made in Ex.D-5 cannot be considered as an admission by the defendant as the said observation is made by the Land Tribunal while granting occupancy rights of the lands claimed under Section 48A of the Karnataka Land Reforms Act, 1961. He submits that Ex.D-6 is the Form No.7 filed by the defendant and there is no reference to the relationship between Govinda and late Baira in the said document. He has relied upon the judgment in the case of GURNAM SINGH (D) BY LR'S AND OTHERS VS LEHNA SINGH (D) BY LR'S - 2019(1) KAR.L.R. 728, and submits that in exercise of the powers under Section RSA 1052/2007 13 100 CPC, the High Court cannot re-appreciate the evidence and the jurisdiction of the High Court to entertain the second appeal is confined only when the second appeal involves a substantial question of law. He submits that the substantial question of law framed in this appeal cannot be said to be a substantial question of law at all. In this regard, he has referred to paragraphs 13.1 and 15.1 of the said judgment. Learned Counsel for the respondent has also relied upon the judgment of the Hon'ble Supreme Court in the case of C.DODDANARAYANA REDDY (DEAD) BY LRS & ORS. VS C.JAYARAMA REDDY (DEAD) BY LRS & ORS. in Civil Appeal No.2165/2009 and relies upon paragraphs 25 to 28 of the said judgment, to contend that the finding of fact cannot be interfered with in a second appeal unless the findings are perverse and unless a substantial question of law arises for consideration. He has also referred to Section 100(5) of CPC and submits that Regular Second Appeal is required to be heard on the substantial question of law framed and the respondent shall at the RSA 1052/2007 14 hearing of the appeal be allowed to argue that the case does not involve such substantial question of law.
11. I have carefully considered the rival arguments addressed on both sides and also perused the material available on record.
12. From the pleadings, oral and documentary evidence available on record, it is very clear that the dispute in this case is with regard to the rights of the parties in suit schedule property. The plaintiffs have pleaded in their plaint that the suit schedule property is their ancestral property and it belonged to their father late Govinda and the defendant jointly. However, they have not pleaded as to how late Govinda and the defendant jointly held the suit schedule property. The plaintiffs have not pleaded the inter se relationship of the parties with the original owner of the suit schedule property viz., late Baira and they have not pleaded as to how they would succeed to the property belonging to Baira as per the provisions of the Madras Aliyasanthana Act, 1949.
RSA 1052/200715
13. The plaint is bereft of basic facts which would go to show the relationship of the parties and their right and title over the suit schedule property. On the other hand, the defendant has filed the written statement contending that the suit schedule property was granted to late Baira and the mother of the defendant - Venkamma was the only sister of late Baira. He has also contended that Venkamma's daughter Chikkamma had died somewhere in the year 1970 and after her death, the defendant alone had succeeded to the property of late Baira who is his maternal uncle. Therefore, as rightly contended by the learned Counsel for the defendant, in the absence of basic pleadings, any amount of evidence cannot fill the lacuna in the pleadings. The Division Bench of this Court in Rudrawwa's case (supra) has held that the scope of the suit is determined by the pleadings in the case. Any amount of evidence cannot fill up the lacuna in the pleadings. If the case is not pleaded, the same cannot be permitted to be proved.
RSA 1052/200716
14. In so far as the contention of the plaintiffs that having regard to the observation in the order - Ex.D-5 passed by the Land Tribunal, the relationship between the defendant, late Govinda and late Baira has been proved and the said observation would amount to an admission made by the defendant under Order XII Rule 6 CPC, and therefore, the suit was required to be decreed is concerned, I am of the considered view that the said endorsement or observation made in the order passed by the Land Tribunal at Ex.D-5 cannot be considered as an admission by the defendant with regard to his relationship with late Govinda and late Baira. The said endorsement or observation is made by the Land Tribunal while considering Form No.7 filed for grant of occupancy rights of the agricultural property belonging to Kollur Mookambika Temple and even if it is presumed to be true, it cannot be held that Govinda's mother - Marli was the direct sister of late Baira having regard to the genealogy tree produced by the defendant before the Trial Court, which remains uncontroverted by the plaintiffs. A perusal RSA 1052/2007 17 of the genealogical tree which is not objected by the plaintiffs at any point of time either before the Trial Court or before the First Appellate Court would go to show that the plaintiff's mother belonged to a separate Kavaru and Venkamma was the only sister of late Baira.
15. The only substantial question of law framed by this Court is, whether the courts below were justified in dismissing the suit having regard to Ex.D-5, where the defendant has referred Govinda as his brother. A perusal of Ex.D-5 would go to show that nowhere it is observed that there is an admission by the defendant that Govinda was his brother. Govinda was the son of Marli who is the sister of late Baira. It is not the case of the plaintiffs that late Govinda and defendant are the direct brothers. From the perusal of the genealogical tree produced by the defendant, it is clear that the defendant and Govinda are cousin brothers and members of Aliyasanthana family and they belonged to two different Kavarus. Therefore, on the basis of Ex.D-5, it cannot be construed that there is an admission by the defendant with regard to the relationship RSA 1052/2007 18 of the plaintiffs with late Govinda and late Baira. An admission on the basis of which a decree could be passed under Order XII Rule 6 CPC should be specific and without any ambiguity. By raising presumption on the basis of a vague endorsement or observation made in a document which relates to some other proceedings, it cannot be held that the defendant has admitted the relationship of late Govinda with Baira or that the defendant and late Govinda are brothers.
16. From the reading of Order XII Rule 6 CPC, it is very clear that the admission of fact has to be made either in the pleading or otherwise in oral or in writing and it is only based on such admissions, a judgment of admission could be passed. In the case on hand, the fact situation is completely different and the plaintiffs intend to contend that an endorsement/observation made in the order passed by the Land Tribunal at Ex.D-5 is required to be considered as admission by the defendant. The principles in the judgments relied upon by the plaintiff are undisputed and I am in respectful agreement with the RSA 1052/2007 19 same. However, in the absence of admissions of fact as provided under Order XII Rule 6 CPC, the said judgments relied upon by the plaintiffs would not be applicable to the facts of the present case.
17. The Hon'ble Supreme Court in the case of HARYANA FINANCIAL CORPORATION & ANOTHER VS M/S.JAGDAMBA OIL MILLS & ANOTHER - (2002)3 SCC 496 has held that the judgments are required to be relied upon as precedents only if the same are applicable to the fact situation of the case. Since I have already held that by relying upon Ex.D- 5, it cannot be held that the defendant has admitted that late Govinda was his brother, I am of the considered view that the substantial question of law framed by this Court is required to be answered in the negative.
18. The Hon'ble Supreme Court in Gurnam Singh's case (supra), has observed in paragraph 13(1) as under:
"13.1 .........However, in Second Appeal under Section 100 of the CPC, the High Court, by impugned judgment and order has interfered with the RSA 1052/2007 20 Judgment and Decree passed by the First Appellate Court. While interfering with the judgment and order passed by the first Appellate Court, it appears that while upsetting the judgment and decree passed by the First Appellate Court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that High Court has not at all appreciated the fact that the High Court was deciding the Second Appeal under Section 100 of the CPC and not first appeal under Section 96 of the CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:RSA 1052/2007 21
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on in-admissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in second appeal."
19. Further, in the very same judgment at paragraph 15.1, the Hon'ble Supreme Court referring to the substantial question of law framed by the High Court in the said matter has observed that the substantial question of law cannot be said to be the substantial question of law at all and as rightly contended by the learned Counsel for RSA 1052/2007 22 the respondent, a reading of Section 100(5) of CPC would make it clear that the respondent is entitled to argue and prove that the substantial question of law framed by the Court would not arise for consideration in the said case. I am aware that the proviso to Section 100(5) of CPC provides that at the time of hearing of the appeal, if this Court feels that in addition to the substantial question of law already framed by this Court, if any other substantial question of law arises for consideration, the same is required to be considered. However, after appreciating the arguments addressed on both sides and also on consideration of the oral and documentary evidence available on record, I am of the considered opinion that no other substantial question of law arises for consideration in this appeal.
20. Before parting with the case, it is necessary to observe here that even if the case of the plaintiffs is presumed to be true, the suit schedule property which is a Darkasth land granted to late Baira becomes his absolute property, and therefore, the same devolves upon his lineal RSA 1052/2007 23 descendants as provided under Section 18 of the Madras Aliyasanthana Act, 1949, and will not revert to the plaintiffs who claim to be the members of Santhathi Kavaru of late Baira. There is no pleading or material to the effect that late Baira was not married or he had died issueless. In the absence of the same, no relief could be granted to the plaintiffs. Section 36(5) of the Aliyasanthana law provides that only the joint family or ancestral property which are allotted to a Male under the partition would devolve or revert to the members of nearest Santhathi Kavaru, and therefore, even otherwise, the plaintiffs are not entitled for the releifs sought for in the suit.
21. The Trial Court as well as the Appellate Court, after appreciation and re-appreciation of the oral and documentary evidence available on record, have rightly dismissed the suit filed by the plaintiffs seeking partition of the suit schedule property. The said judgment and decrees which are impugned in this appeal do not suffer from any material irregularity or illegality nor the said RSA 1052/2007 24 judgment and decrees could be termed as perverse in nature which calls for interference by this Court in exercise of its power under Section 100 CPC. Under the circumstances, I find no merit in this appeal. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE KK