Karnataka High Court
Basanna @ Basanagouda S/O Late ... vs Smt.Gangamma D/O Veeranna on 23 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2508, 2021 (1) AKR 612
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.7315/2009
BETWEEN:
1. Basanna @ Basanagouda
S/o. Late Narsingappa
Age: 51 years,
2. Suganagouda S/o Basanna
Age: 30 years,
3. Gurunath S/o Basanna
Age: 26 years,
All are Agriculturists and
R/o Heggasanahalli Village,
Taluka and District Raichur - 586 213
.... Appellants
(By Sri Ajay Kumar A.K., Advocate)
AND:
1. Smt. Gangamma Since deceased LRs are already on record
i.e. Respondent No.2 to 4 Amended as per
D/o Veeranna
order dated:13.11.2015
Age: 72 years
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2. Smt Hanumamma
W/o Alleged Mallappa
3. Mounesh S/o Alleged Mallappa
Minor U/g of Natural Mother
All are R/o Kushtagi Road
Sindhanur, Dist. Raichur - 586 124.
4. Smt Sidamma W/o Neelkanta Reddy
Age: 42 years, Occ: Household and Agri.,
R/o Purtipli Village, Tq. & Dist. Raichur - 586 112
... Respondents
(R1 is deceased
R2 to R4 are LRs of R1
Sri Mahantesh Patil, adv. For R2 and R3
Sri Basavaraj R. Math, Adv. For R4)
This Regular Second Appeal is filed under section
100 of Civil Procedure Code, praying to allow the appeal
by setting aside the judgment and decree dated:
13.12.2007 passed in O.S.No. 46/2001 by learned Prl.
Civil Judge (Sr.Dn.) Raichur and confirming the same
by the appellate court in R.A.No.6/2008, dated
31.10.2009 passed by Addl. Dist. Judge, Raichur.
This appeal having been heard, Reserved for
Judgment and coming on for Pronouncement of
Judgment this day, this Court delivered the following:
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JUDGMENT
This appeal lays challenge to the judgment and decree dated 31.10.2009 in R.A.No.6/2008 passed by Addl. Dist. Judge, Raichur wherein the first appellate Court dismissed the appeal confirming the judgment and decree dated 13.12.2007 passed in O.S.No.46/2001 by the learned Prl. Civil Judge (Sr.Dn.) Raichur.
2. The appellants are defendant Nos.1 to 3 and respondent Nos.1 to 3 are the plaintiff Nos.1 to 3 and respondent No.4 was defendant No.4 before the trial Court. For the sake of convenience, the parties will be referred to as plaintiffs and defendants as per their respective ranks before the trial Court.
3. The brief case of the plaintiffs before the trial Court was that the plaintiffs instituted suit in O.S.No.46/2001 for partition and separate possession. The plaintiffs contention before the trial Court was that 4 the common ancestor Suganna had two sons late Narsingappa and Basanna. Plaintiff No.1 is the widow of said Basanna. She had daughter by name Siddamma and a son by name Mallappa. Plaintiff No.2 is the widow of Mallappa and plaintiff No.3 is the son of Mallappa.
4. The said Narsingappa had children by name Basanna-defendant No.1, Ramalingamma-defendant No.2 and Surochana-defendant No.3. It is contended that the suit properties were standing earlier in the name of Narsingappa and Basanna. On their death, they were mutated in the name of defendant No.1 behind the back of plaintiffs. The plaintiffs and defendants are in joint possession of the suit properties. They have got half share in the suit properties. When the dispute arose between the parties, plaintiffs demanded their share, but defendants refused to give share. Hence, plaintiffs filed the suit. The suit properties are agricultural land bearing Sy.No.31 5 measuring 9 acres 33 guntas and Sy.No.107/1 measuring 8 acres 16 guntas and two house properties bearing Panchayat No.1-46 and 1-47 of Heggasanahalli village, Raichur.
5. The defendant No.1 filed written statement denying the relationship of the plaintiffs. It is contended that the grandfather of defendant No.1- Suganna died long back leaving behind his two sons Narsingappa-father of defendant No.1 and Basanna who died intestate as bachelor. The share of Basanna in the joint family came to be succeeded and inherited by defendant No.1. The family of defendant No.1 was having only inam land i.e. Sy.No.31 measuring 9 acres 33 guntas and Sy.No.107/1 measuring 8 acres 16 guntas is self-acquired property of defendant No.2, and it is purchased out of the funds provided by his mother Kamalamma. So, other members of the family have no right in the property. The land was re-granted in the 6 name of Narsingappa and Basanna by Land Tribunal. After the death of Basanaa who died without marrying and as a bachelor, only defendant No.1 is having right over the properties. Plaintiff No1. has no status of wife. The mother and sisters have also share in the suit properties. The plaintiffs are never in possession of the suit properties.
6. Defendant Nos.2 and 3 adopted written statement filed by defendant No.1 by filing memo.
7. Defendant No.4 who got impleaded subsequently filed separate written statement. She has contended that she is only daughter of Basanna who is the son of Suganna. She denied the contention of plaintiffs that plaintiff No.1 is the wife of Basanna and her mother. She contended that she has got half share in the suit properties. It is further contended by her plaintiffs and defendant Nos.1 to 3 have colluded together to defeat the rights of defendant No.4. With 7 these contentions, she prayed to dismiss the suit and allot her share in the suit properties.
8. On the basis of above pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiffs prove that the plaintiff No.1 is the legally wedded wife of late Basanna and plaintiff No.2 is the legally wife of the Mallappa s/o late Basanna and plaintiff No.3 is the son of plaintiff No.2 and late Mallappa?
2. Whether the plaintiffs prove that they are entitled to a share in all the suit schedule properties and if so, to what share?
3. Whether the plaintiffs are entitled to partition and separate possession of their share in all the suit schedule properties, and if so, to what share?
4. Whether the defendants prove that the suit land Sy.No.107/1 is the self acquired property of late Suganagouda/defendant No.2?8
5. Whether the valuation of the suit made for payment of court fee is proper and the court fee paid is proper and sufficient?
6. Whether the suit of the plaintiff is in time?
7. What order or decree?
Addl. Issues:
1. Whether defendant No.4 proves that defendant No.4 is only legal heir and successor of late Basanna?
2. Whether defendant No.4 proves that she has got 1/2 share in the suit schedule properties except the land Sy.No.107/1 measuring 8 acres 16 guntas?
3. Whether defendant No.4 is entitled for relief as prayed?9
9. In order to prove their case, the plaintiff No.1 got examined herself as PW.1 and got examined two more witnesses as PW.2 and PW.3 and have got marked 18 documents at Ex.P1 to Ex.P18 and closed their side. On the other hand, defendant No.1 got examined as DW.1 and four other witnesses as DW.2 to DW.5 and got marked 22 documents as Ex.D1 to Ex.D.22. After hearing the arguments the trial Court decreed the suit. Aggrieved by the same regular appeal was preferred in R.A.No.6/2008. The First Appellate Court also dismissed the said appeal.
10. Aggrieved by the same, this regular second appeal is preferred. In the memorandum of appeal no separate grounds of appeal are stated by the appellants. They have simply stated the case of the plaintiffs and defendants and findings of both the Courts. It is contended in the memorandum of appeal that the 10 appeal is preferred on the substantial questions of law stated at para-10, page-9 of memorandum of appeal.
11. Therefore, it appears the appellants assume that substantial questions of law stated by them are the grounds of appeal.
12. This Court admitted the appeal and framed the following substantial question of law on 01.10.2010, which reads as under:
"Whether the courts below were justified in granting a decree for partition on the premise that plaintiff No.1, Gangamma is the wife of Basanna when the evidence was not forthcoming in support of such a contention?"
13. Heard Sri Ajaykuma A.K., leaned counsel for the appellants and Sri Mahantesh Patil, learned counsel for respondent Nos.2 and 3 and Sri Basavaraj R. Math, learned counsel for respondent No.4.
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14. Sri Ajaykumar A.K., learned counsel for the appellants argued that out of two lands, the land bearing Sy.No.31 is an Inam land granted to Narasingappa and Basanna and Sy.No.107/1 is self- acquired property of defendant No.2. Only the house properties are ancestral properties. It is argued that both the Courts did not consider the cross-examination properly. The plaintiffs have not stated date of marriage ceremony. The plaintiffs have to prove their case on their own strength, they cannot take weakness of the defendants case. The learned counsel further argued that there is no evidence led to show the relationship of plaintiffs with Basanna. Even in plaint, it is not stated how many legal heirs are there and not stated that plaintiff No.1 is wife and others are the daughters of said Basanna. The marriage ceremony of plaintiff No.1 with late Basanna is not proved. The burden is on the plaintiffs to prove the relationship with defendants. Both the Courts only on some stray sentence, calling it 12 as admission, decreed the suit, which is not tenable in the eye of law. The appeal filed by defendant Nos.1 to 3 in R.A.No.6/2008 and the appeal filed by defendant No.4 in R.A.No.8/2008 both are dismissed without properly considering the evidence. The learned counsel further agued that PW.1 and PW.2 have admitted that they do not know contents of the affidavit evidence filed by them. The author of Ex.P2/Transfer Certificate is not examined to prove it. The Courts have not properly considered the proof of documentary evidence. Defendant No.2 is absolute owner of one of the suit land as it is purchased by him and it is his self-acquired property. The learned counsel argued that the plaintiffs have failed to prove their case. Both the Courts have committed illegality when there is no evidence to prove the relationship. In support of his arguments, the learned counsel relied upon the decisions of the Hon'ble Supreme Court in the case of Rathnamma and others 13 vs. Sujathamma and others reported in AIR 2020 SC 541 wherein at para-17 and 18 observed as under:
"17. In the present case, the plaintiff has not proved custom of marriage to her mother's brother and/or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, no judicial notice can be taken of a custom as argued by the learned counsel for the plaintiff. In the absence of any pleading or proof of custom, the argument that in Vokkaliga community, such marriage can be performed cannot be accepted as no judicial precedent was brought to the notice of the Court that such a custom exists in the Vokkaliga community nor there is any instance quoted in evidence of existence of such custom.
18. The burden to prove the marriage was on the plaintiff. The plaintiff has failed to prove the marriage. The entire case is based upon an agreement of marriage in which there is no assertion regarding solemnization of the customary ceremonies or the rites or that the parties had performed saptpadi in the manner contemplated under Section 7 of the Act, therefore, the plaintiff cannot succeed the estate of Hanumanthappa on the basis of a marriage which she has failed to prove."
Another decision of the Hon'ble Supreme Court in the case of Union of India and Others vs. Vasavi Co- 14 operative Housing Society reported in (2014) 2 SCC 269 wherein at para 19 observed as under:
"19. We notice that the above principle laid down by this Court sought to be distinguished by the High Court on the ground that none of the above- mentioned judgments, there is any reference to any statutory provisions under which revenue records referred therein, namely, revenue register, settlement register, jamabandi registers are maintained. The High Court took the view that Ext.A-3 has evidentiary value since the same has been prepared on the basis of Hyderabad record of Rights in Land Regulation, 1358 Fasli. It was also noticed that column 1 to 19 of Pahani Patrika is nothing but record of rights and the entries in column 1 to 19 in Pahani Patrika shall be deemed to be entries made and maintained under Regulations."
The learned counsel also relied upon another decision of the Hon'ble Supreme Court in the case of Puttanna Shetty (deceased) by LRs and Others vs Padma Shetty (deceased) by LRs and Others reported in 2007 (3) KCCR 2107 wherein at para 9 observed as under:
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"9. In AIR 1968 SC 1413 (Gopal Krishnaji Ketkar v. Mohammed Haji Latif) the Supreme Court would notice the consideration of evidence. In fact, a party in possession of best evidence has not chosen to place best evidence by way of examination of grahasta or by way of filing memo. In that situation, the Court ruled against that party who has not chosen to place the best evidence. These two Judgments support the plaintiff. Even otherwise, an admission particularly in civil matter dealing with properties has to be clear and it has to be read in the light of the pleadings and the other evidence available on record. One stray sentence cannot be picked up for holding against the plaintiff in property matter as has been done in the case on hand."
15. With these arguments, the learned counsel prayed to allow the appeal.
16. Against this, the learned counsel for the defendants Sri Mahantesh Patil argued that, to prove the marriage of plaintiff No.1 with late Basanna, the plaintiffs got examined PWs.1 to 3. The trial Court at para-20 of the judgment has clearly considered the evidence of the parties in this regard. Both the Trial Court and the First Appellate Court considered both oral and documentary evidence and relationship of the 16 plaintiffs with the defendants and given concurrent findings. The said finding is the finding of fact and not law. Both the Courts have given valid reasons and answered the issues properly. The learned counsel further submitted that as per Section 100 of CPC, no substantial question of law arise in this case as held by Hon'ble Supreme Court in the case of Nazir Mohamed vs. J.Kamala and Others reported in AIR 2020 SC 4321 wherein at para 31, 37, 38, 39 and 40 it is held as under:
31. 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.17
The substantial question of law on which a second appeal 2(2006) 5 SCC 545 shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172] 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 [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] 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 [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p.
557) "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 fact of the case it would not be a substantial question of law."
37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) 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 18 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.
(ii) 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.
(iii) 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.
(iv) 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, 19 but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
38. With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and/or precedents.
39. It is nobody's case that the decision rendered by the First Appellate Court on any material question, violated any settled question of law or was vitiated by perversity. It is nobody's case that the evidence taken as a whole does not reasonably support the finding of the First Appellate Court, or that the First Appellate Court interpreted the evidence on record in an absurd and/or capricious manner. It is also nobody's case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle.
40. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant- Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent- Plaintiff had acquired title over the suit premises. 20
There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted.
17. The learned counsel further argued that the contention of defendant Nos.1 to 3 that the Basanna died bachelor is nullified by the admission of the defendants. Defendant No.4 came on record as daughter of the said Basanna. Her evidence is not denied by the defendant Nos.1 to 3. That itself proves that the Basanna was a married person. The learned counsel argued that there are absolutely no evidence or grounds to interfere with the judgments of both the Courts and prays to dismiss the appeal.
18. I have considered both the judgments, evidence on record and decisions relied by both the sides.
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19. It is settled principle of law that when a person files a suit, the initial burden is on him/her to prove his/her case.
20. In order to prove their case, plaintiff No.1 got examined herself as PW.1. In her examination-in-chief she has stated the relationship of her husband-Basanna with defendants. She has also stated that suit properties were undivided joint family properties. She has produced the documents which are at Exs.P1 to P.17. She has produced death certificate of Basanna at Ex.P3 and transfer certificate of Mallappa, wherein the name of Basanna is shown as his father. She has produced the khasra pahani and records of rights in respect of suit properties and mutation extracts. She has also produced the property extract of the house. Though she was cross-examined at length there is nothing in her statement so as to disbelieve her evidence. She has clearly stated that Basanna i.e. her 22 husband died when he was living jointly with Narasingappa. She has stated that she do not know whether Kamalamma had given money to purchase the land to defendant No.2. She has stated that her marriage was performed at Heggasanahalli but she cannot state the rituals performed at the marriage she is 10 to 12 years and after four years of marriage she went to her husband's house. She denied the suggestion that Basanna died without marrying any one. Simply because se shad stated that she cannot say what are all written in the affidavit it does not mean that whatever she deposed is false. Admittedly, she is illiterate and has put her thumb impression on deposition. The examination in chief affidavit is in English language. But she has clearly stated about the suit properties and also relationship. She has clearly stated that her son Mallappa studied at Heggansahalli, which corroborate at Ex.P2. Some suggestions were made to her, she denied them.
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21. To corroborate her evidence she has examined two witnesses. PW.2-Narasappa and PW.3- Nagappa of Heggasanahalli village. Both have stated that plaintiff No.1 is the legally wedded wife of Basanna and her relationship with plaintiffs and defendants. Nothing is elicited in the cross examination of both witnesses. Some suggestions were made to this PW.2 that one Bhojegouda filed suit against the defendants but such suggestions were not made to PW.1. Simply because they were not tell the exact date, month and year of the marriage. Their evidence cannot be disbelieved. In fact PW.3 was a member of school betterment committee. Their evidence that they were of the said village is not denied. They are the resident of Heggasanahalli . Their age also indicate that aged about 60 and 75 years. In view of Section 50 of the Evidence Act, the relationship of a person can be proved by examining the witnesses who have got special means 24 or knowledge about the relationship of the parties to the suit. Absolutely there are no reasons to show why their evidence should not be believed. Against this, the defendant No.1 got examined himself as DW.1. In his examination-in-chief affidavit, he has reiterated written statement contention, but his cross-examination reveals that somehow he is trying to put forward false defence.
22. DW.1 has clearly admitted that their father Narasingappa was given in adoption so they have got surname as Halemani. He has clearly admitted hat plaintiff husband is called as Annaji by surname. Para No.1, he has clearly admitted that his father and husband of plaintiff No.1 are brothers. He has expressed his ignorance that said Siddamma is a daughter of his uncle. Even he has stated that he cannot say how his name is mutated to the record of rights as a owner. He has admitted that he has not given instruction to his advocate that he has got three 25 sisters. He is admittedly a Central Government employee. He had denied suggestion that husband of plaintiff was working as a Pujari, but he admits that land Sy.No.31 belongs to temple. He also admits that it was Inam land. He also admits that his father was not a Purjari. He has admitted that name of Annaji is rounded and Halemani is written. So, his evidence indicated that somehow he trying to suppress the truth. But his witnesses DW.2 clearly indicates that somehow the defendants tried to deny the relationship.
23. DW.2-Narayanappa admitted in his cross- examination that, they came to Heggasanahalli about 25 years back. Therefore, he will not have any knowledge about the marriage of plaintiff with Basanna. DW.2 is originally from Paale village, Gadwal taluk Andra Pradesh. But he states that he denied suggestion that defendant No.1 father has gone in adoption to one Halemani family. This is totally against the admission 26 of DW.1, wherein he has clearly admitted that his father Narasingappa was given in adoption to Halemani family. So this person do not have any knowledge about the relationship of family of plaintiffs and defendants. He has further stated that he do not know whether the plaintiff No.1 is the wife of uncle of defendant No.1. he also do not know whether defendant No.1 is doing any service or works in the Post Office. He also express his ignorance he do not know defendant No.1 has got any property from his father's father. He again says that he do not know plaintiff No.1 is the wife of defendant No.1's uncle and he has got two children. He also do not know plaintiff No.2's husband Mallappa. He also stated that he do not know this Mellappa has got a son by name Mounesh. He has stated that he has not doing any agriculture work and he has sold his land, but he cannot say to whom he sold the land.
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24. So this type of evidence of DW.2 clearly indicates that he do not know anything about the relationship of plaintiffs family or the defendants family.
25. Next witness for the defendants is DW.3- Mallikarjun. He has filed his examination-in-chief affidavit. His age is shown as 49 years. In the cross examination he has stated that he has studied SSLC in the year 1982. So it appears that he do not have knowledge about marriage of plaintiff No.1 with Basanna. He has clearly admitted that he has not having any other lands in his name and contents of examination in chief that he is owning Sy.No.150 measuring 8 acres is a false statement. He state about selling of Sy.No.107 in favour of defendant No.2 by his father's father-Shivanna in the year 1980. Admittedly, he was a minor, he could not have any knowledge about the said sale deed. He has also clearly admitted that plaintiff No.1's husband Basanna died about 3 years 28 back of he giving evidence. He do not know the age of the Basanna at the time of death. He has stated that defendant No.1 is not related to him. So his evidence will not help defendants to prove the relationship.
26. The defendants also examined one person by name Siddanagouda as DW.4. He has stated that defendant No.1's family owning item No.1 and item No.2 is self-acquired property of defendant No.2. In his examination-in-chief affidavit he supports defendants. But in the cross-examination he states he do not know whether defendant No.1's father had gone in adoption to Halemani family. He has clearly admitted that plaintiff's husband is also called as Halemani. But in subsequent cross examination he denies the plaintiffs case. His cross examination reveals that he do not know anything about the relationship of defendants and plaintiffs. His admission that the plaintiff husband is also called as Halemani cannot be construed as stray sentence. 29
27. It is pertinent to note here that Smt.Siddamma-defendant No.4 came on record in the suit subsequently stating that she is a daughter of deceased-Basanna. In fact she also challenged the finding of the trial Court by filing regular appeal. But her appeal also came to be dismissed. In her cross examination by plaintiffs admitted that Narasingappa is brother of her father Basanna. She has also admitted that her father is also called as Annaji Basanagouda. Narasingappa is also called as Halemani. The evidence of defendant No.4 that she is daughter of said Basanna is not denied by the defendant Nos.1 to 3 by cross- examining her. That itself nullifies stand of defendant Nos.1 to 3 that Basanna died as a bachelor or not married. Defendant No.4 that her father Basanna is also called as Annaji and father brother is Narasingappa who is none other than the brother of plaintiff No.1's husband. Not denying the evidence of defendant No.4 30 that Narasingappa's brother was a married person and this defendant No.4 was born to him. Not cross examining the defendant No.4 by defendant Nos.1 to 3 is a fatal to the defence of defendant Nos.1 to 3. On the other hand, it strengthens and proves the case of the plaintiffs that Basanna brother of Narasingappa was a married person and plaintiff No.1 is his wife. The appeal filed by defendant No.4 also came to be dismissed. The said defendant No.4 has not filed any regular second appeal.
28. I have perused the judgment of Trial Court and the First Appellate Court. Both the Courts have raised proper points for consideration and discussed both oral and documentary evidence. Both the Courts have believed the evidence of PW.2 and PW.3 as a opinion evidence in respect of relationship of the plaintiffs with the deceased-Basanna. PW.2 is a person who attended the marriage. Both the Courts have 31 assigned the reasons as to why the evidence of PWs.2 and 3 should be believed. There is no basis to hold that they are the interested witnesses. The evidence of plaintiff is strengthen by admission made by defendant No.1 and his witnesses. Defendant No.4 evidence also nullify the defence of defendant Nos.1 to 3 that Basanna was unmarried and he died as a bachelor.
29. The First Appellate court considered the documentary evidence produced by the plaintiffs. There is no cross examination by defendants 1 to 3 on the documentary evidence at Ex.P1 to P3. This amounts to admission by the defendants, the said documentary evidence corroborates the case of the plaintiffs as to the relationship of the plaintiffs with Basanna as pleaded by them. Both the Courts have concurrently came to a conclusion that plaintiffs have proved their case and the relationship with the defendants.
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30. Defendant No.2 was a minor. He could not purchase the property when he has no income. There is no evidence that defendant No.1's mother paid any amount to purchase the item No.2 property. Admittedly item No.1 property is ancestral property of defendants' father i.e. it belongs to Narasingappa and Basanna. When there is no evidence to show any independent income or source of income for defendants 1 to 3 to purchase item No.2 property and when there is a nucleus sufficient to purchase property, then it can be held that item No.2 is also a joint family property of plaintiffs and defendants. The plaintiffs and defendants being two branches of the undivided family each equally entitled for half share.
31. The principles stated in the decisions relied by the counsel for the appellants are not disputed and those principles are settled principles stated by Hon'ble 33 Supreme Court. But they are not applicable to the pleadings evidence and facts of this case.
32. The admission made by the defendants 1 to 3 is not a stray sentence. The evidence is to be read as a whole. The Court so as to call it as admission it must be clear and unambiguous. Here the admission made by the defendants DW.1 and witnesses regarding relationship of plaintiff No1 with Basanna is not a stray sentence. The defendants No.1 to 3 have not clarified such admission by re-examination. The effect of admission in the cross examination on vital issues involved in the suit cannot be brushed aside as a stray sentence. The cumulative effect of cross examination of defendant Nos.1 to 3 and not denying the evidence of DW.4 clearly indicates that the truth has come out in the cross-examination of defendant Nos.1 to 3 evidence. Apart from that the plaintiffs' have adduced legally admissible evidence to prove their case. They have 34 produced the evidence of persons who have got special means of knowledge about the relationship of plaintiff No.1 with Basanna. The same is admissible under Section 50 of the Evidence Act. Viewed from any angle if the pleadings and evidence in this case are considered then it is evident that the plaintiffs have successfully proved their case.
33. The First Appellate Court on re-appreciating the evidence and by giving valid reasons dismissed both the regular appeals filed by the defendant Nos.1 to 3 and defendant No.4 separately by a common judgment. The First Appellate Court has discussed both oral and documentary evidence and arrived at a decision holding that plaintiffs have proved their case and are entitled for relief. Accordingly, the First Appellate Court confirmed the decree passed by the Trial Court. The judgment of the First Appellate Court is neither illegal nor perverse. I find absolutely no grounds to interfere with the 35 concurrent findings of Trial Court and the First Appellate Court. Hence, the substantial question of law is answered accordingly. The appeal being devoid of merits, is liable to be dismissed. Hence, I pass the following:
ORDER The appeal is dismissed.
The judgment and decreed dated 31.10.2009 passed in R.A.No.6/2008 by the Addl. Dist. Judge, Raichur, is hereby confirmed.
In view of the facts and circumstances of the case, both the parties shall bare their own costs.
Send back the Trial Court Records to the concerned Courts forthwith.
Sd/-
JUDGE sdu