Karnataka High Court
Shri Chandrappa Shankareppa Malakatti vs Smt Gurawwa W/O Appanna Malakatti on 23 January, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA NO.2569 OF 2007
BETWEEN
SHRI CHANDRAPPA SHANKAREPPA
MALAKATTI
SINCE DECEASED BY HIS LRs
a) SMT.DUNDAWWA
W/O CHANDRAPPA MALAKATTI
AGE:72 YEARS, OCC:HOUSEHOLD WORK
R/O SANKESHWAR-591313
TALUK:HUKERI, DIST:BELGAUM
b) SRI MALLAPPA
S/O CHANDRAPPA MALAKATTI
AGE:54 YEARS, OCC:SERVICE
R/O SANKESHWAR-591313
TALUK:HUKERI, DIST:BELGAUM
c) SRI SHANKAR
S/O CHANDRAPPA MALAKATTI
SINCE DECEASED BY HIS LRs
i) SMT.KALLAWWA W/O SHANKAR MALAKATTI
AGE:32 YEARS, OCC:HOUSEHOLD WORK
R/O HARAGAPUR-591309
TALUK:HUKERI, DIST:BELGAUM
ii) SONTESH S/O SHANKAR MALAKATTI
AGE:14 YEARS, OCC:STUDENT
R/O HARAGAPUR-591309
2
TALUK:HUKERI, DIST:BELGAUM
M/G MOTHER SMT.KALLAWWA
W/O SHANKAR MALAKATTI
iii) MAHANTESH S/O SHANKAR MALAKATTI
AGE:12 YEARS
OCC:STUDENT
R/O HARAGAPUR-591309
TALUK:HUKERI DIST:BELGAUM
M/G MOTHER SMT.KALLAWWA
W/O SHANKAR MALAKATTI,
d) SRI SHIVANAND S/O CHANDRAPPA MALAKATTI
AGE:37 YEARS, OCC:AGRICULTURE
R/O SANKESHWAR-591313
TALUK:HUKERI, DIST:BELGAUM
e) SMT.KASTURE, W/O KEMPANNA NANDAGAVI
AGE:45 YEARS, OCC:HOUSEHOLD WORK
R/O GOTUR-591309
TALUK:HUKERI, DIST:BELGAUM
f) SMT.SUSHILA
W/O LAXMAN SHENDRE
AGE:40 YEARS
OCC:HOUSEHOLD WORK
R/O HOLE HITNI-591309
TALUK:HUKERI, DIST:BELGAUM
. . .APPELLANTS
(BY SRI M.G.NAGANURI, ADV.)
AND:
1. SMT.GURAWWA W/O APPANNA MALAKATTI
SINCE DECEASED R2 TO 5 ARE TREATED AS LRs
2. SMT.BALAWWA SIDDAPPA MALAKATTI
AGE:MAJOR, OCC:HOUSEHOLD
R/O KUMBARGALLI, SANKESHWAR-591313
TALUK:HUKERI, DIST:BELGAUM
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3. SMT.GANGAWWA W/O BASAPPA PATIL
AGE:MAJOR, OCC:HOUSEHOLD
R/O GOTUR-591309
TALUK:HUKERI, DIST:BELGAUM
4. SMT.MAHADEVI BALAPPA HUDDAR
AGE:47 YEARS, OCC:HOUSEHOLD
R/O NEAR B.K.KORE COLLEGE
CHIKODI-591201
DIST:BELGAUM
5. SMT.SHANTAWWA
W/O BHARAMAPPA SANKESHWARI
AGE:MAJOR, OCC:HOUSEHOLD
R/O BASARGE-416502
TALUK:GANDHINGLAJ, DIST:KOLHAPUR
6. SHRI GANAPATI ADIVEPPA LABBI
AGED 42 YEARS, OCC:BUSINESS
R/O KUMBARGALLI, SANKESHWAR-591313
TALUK:HUKERI, DIST.:BELGAUM
7. SHRI MALLAPPA APANNA HATTAROTTI
AGE:66 YEARS, OCC:AGRICULTURE
R/O KUMBARGALLI, SANKESHWAR-591313
TALUK:HUKERI, DIST:BELGAUM.
... RESPONDENTS
(BY SMT.PALLAVI, ADV. FOR SRI SRINAND A.PACHCHAPURE,
ADV. FOR R2 TO 5
SERVICE OF NOTICE H/S IN RESPECT OF R6 & R7)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 13.07.2007 PASSED IN
R.A.NO.84/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
HUKKERI, DISMISSING THE APPEAL FILED U/S 41 RULE 1 R/W
SEC.96 OF CPC BY CONFIRMING THE JUDGMENT AND DECREE
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DATED 29.10.2005 PASSED IN O.S.NO.170/2000 ON THE FILE
OF THE CIVIL JUDGE (JR.DN.) SANKESHWAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal filed under Section 100 of CPC is directed against the concurrent findings given by the Court of Civil Judge (Jr.Dn.), Sankeshwar, in O.S.No.170/2000 and affirmation thereof in the Regular Appeal No.84/2005. The appellant herein was the plaintiff in the said suit and respondents were the defendants in the said suit. Parties will be referred to as the plaintiff and defendants as per their ranking given in the Trial Court.
2. One person by name Shankareppa had two sons by name Appanna and Chandrappa. Both of them are no more. This Chandrappa was alive when the suit was filed by him in the year 2000. Appanna was already dead when the said suit bearing O.S.No.170/2000 was filed. Defendant No.1 Guravva, 5 was wife of the deceased Appanna and defendant Nos.2 to 5 are her children.
3. Sy.No.118/12B/1 measures 1.39 acres and Sy.No.118/12B/2 measures 2 acres of land. These two sub- Snumbers have been carved out of the original Sy.No.118/12B. The deceased Appanna was the owner of this land based on conferment of occupancy right in his favour by the Land Tribunal. Similarly, Chandrappa the plaintiff was stated to be in possession of 2 acres of land on the basis of the Land Tribunal's order. According to the plaintiff, one single application was filed by himself and his brother Appanna, jointly seeking conferment of occupancy right in respect of 3.39 acres and this application was filed before the Land Tribunal. According to him, Land Tribunal conferred occupancy rights jointly in his favour as well in favour of his elder brother Appanna and therefore they were in joint possession of the entire extent of land in Sy.No.118/12B. According to him, Appanna could not have alienated any land in Sy.No.118/12B without first offering the 6 same to him, as the plaintiff had preferential right under Section 22 of the Hindu Succession Act. As Appanna chose to alienate 1 acre of land each in Sy.No.118/12B/1 without first offering to him, he had to file a suit for seeking preferential right under Section 22 and for mandatory injunction with a direction to reconvey the property in his favour by receiving the consideration as mentioned in the sale deeds executed in favour of defendants No.6 and 7. Relief of permanent injunction had also been sought against the defendants 6 and 7 on the ground that they could not have interfered with the joint possession, since the purchasers were strangers. With these pleadings he had filed a suit for the reliefs of declaration that he had preferential right and for consequential reliefs of mandatory injunction and permanent injunction.
4. Defendants 1 to 5 had appeared before the Court and had engaged an advocate by name K.B.Huddar. Defendants 6 and 7 being purchasers of the property had engaged a 7 Counsel by S.D.Kaboori. In the written statement, the averment that the property in question was jointly enjoyed by the plaintiff and deceased Appanna and that conferment of occupancy right was a joint right and that there was no partition of this property has been specifically denied. According to them, there was a partition between Chandrappa and Appanna in the year 1996 and this property bearing Sy.No.118/12B/1 had fallen to the share of Appanna and that he was competent to alienate the property. It is further averred that no preferential right could be claimed as the land in question was not inherited either by Chandrappa or by Appanna. With these pleadings they had requested for dismissal of the suit.
5. On the basis of the above pleadings, following issues came to be framed:
1) Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit lands as on the date of suit?8
2) Whether the plaintiff proves that the construction made by the defendants for his peaceful possession and enjoyment of the suit lands?
3) What order or decree?
Additional Issues:
1) Whether the plaintiff proves his actual lawful possession over entire RS No.118/12/B measuring 4 acres as on the date of suit?
2) Whether the plaintiff proves the obstruction by the defendants 6 and 7 as alleged?
3) Whether the plaintiff further proves that he has got preferential right to purchase 1 acre 39 guntas of now numbered as 118/12B/1 from Appanna and his LRs defendants 1 to 5?
4) Whether the defendants prove the partition between plaintiff and his brother deceased Appanna by metes and bounds?9
5) Whether the plaintiff proves his readiness and willingness to purchase RS No.118/12B/1 from defendants?
6) Whether the suit is bad for not seeking declaration to set aside the sale deeds executed in favour of defendant No.6 and 7?
7) Whether the suit is bad for not seeking declaration to set aside M.E.No.2055?
8) Whether the plaintiff is entitled for the relief of permanent injunction against defendant No.6 and 7?
9) Whether the plaintiff is entitled for mandatory injunction as sought for?
10) What order or decree?
6. Chandrappa himself has been examined as PW1 and one Tajaji Bhosale has been examined as PW2 and 4 exhibits have been got marked on behalf of the plaintiffs. In all 7 witnesses have been examined on behalf of the defendants 10 inclusive of defendant No.4. 14 exhibits have been got marked on behalf of the defendants.
7. After hearing the arguments from the learned Counsel appearing for the parties, issue Nos.1, 2 and additional issues 1 to 3, 5, 8 and 9 have been answered in the negative and additional issue No.4 has been answered in the affirmative. It is held that additional issues 6 and 7 do not survive for consideration. Ultimately, the suit came to be dismissed by a considered judgment dated 29.10.2005, as against which a Regular Appeal was filed before the Court of Senior Civil Judge, Kukkeri, in R.A.No.84/2005 under Section 96 of CPC. Several grounds had been urged before the Appellate Court. After hearing the learned Counsel appearing for the parties, the learned Judge has chosen to dismiss the appeal and thereby the judgment and decree of the trial Court has been upheld. It is these concurrent findings which have been called in question on various grounds as set out in the appeal memo.
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8. It is contended that the trial Court has not properly analysed oral and documentary evidence in right perspective and that Ex.D1 evidencing the alleged partition is inadmissible in evidence and that the same could not have been countenanced as a document evidencing partition in the eye of law. It is further contended that when the Land Tribunal has chosen to grant occupancy right jointly in favour of the deceased plaintiff and deceased Appanna, there could not have been alienation of the undivided share without making first offer to the plaintiff in terms of Section 22 of Indian Succession Act. The trial Court is stated to have adopted a wrong approach to the real state of affairs and that stray admissions culled out from the mouth of plaintiff and their witnesses have been blown out of proportion in order to make out a case for the defendants though there is no specific averment to that effect in the written statement. The trial Court is not stated to have tested the evidence on the touchstone of intrinsic probabilities. The judgment and 12 decree of the trial Court as well as the First Appellate Court are stated to be opposed to law, facts and probabilities.
9. Several substantial questions of law have been proposed in pages Nos.11 and 12 of the appeal memo filed under Section 100 of CPC.
a) Whether the Lower Appellate Court has committed an error in dismissing the Appeal filed by the Appellant and confirming the Judgment and Decree of the trial Court without re-appreciating the oral and documentary evidence, only relying upon Judgment reported in AIR 2007 Gauhati 70 wherein the partition was proved but in the present case the plea of partition setup by the Defendants is not proved?
b) Whether the Courts below are justified in law in accepting the plea of partition set up by the Respondents/Defendants and holding that they have proved partition between the Appellant and his deceased brother Appanna, relying upon the document Ex.D1 which is 13 not registered and not proved and even not pleaded in the written statement of the Defendants?
c) Whether the Courts below have committed an error in holding that the Plaintiffs claim with respect to preferential right against the Defendants 1 to 5 is not tenable in law?
d) Whether the Lower Appellate Court is correct in holding that the Trial Court has not committed any error in framing issues?
e) Whether the Courts below have committed an error in not granting decree for permanent injunction against the Defendant No.6 and 7, when there was no partition between the Plaintiff and his deceased brother and the Defendant No.6 and 7 who are the strangers cannot acquire any right over the suit land or any portion of it and consequently they have no right to intrude into the suit properties?
10. During the pendency of the appeal, Chandrappa died and his legal representatives have been brought on 14 record. Even Guravva, the first respondent died during the pendency of this appeal and hence her legal representatives have been brought on record.
11. Arguments of the learned Counsel for the appellants have been heard at length in regard to admission.
12. Admittedly, the trial Court has come to the conclusion that there were ancestral properties of the plaintiff and his deceased brother and had been put into partition long prior to the filing of application before the Land Tribunal. If really the Land Tribunal had granted joint occupancy right, in the said order marked as Ex.D7 dated 30.03.1977, it would not have been mentioned as 1/2 each. In page No.2 of Ex.D7, the order of the Land Tribunal names of Appanna and Chandrappa are mentioned and below their names it is mentioned as "1/2 each".
13. What is argued before this Court by the learned Counsel for the appellants is that this cannot be construed as 15 partition. I am unable to accept this contention for the reason that the parties had already partitioned their ancestral properties and were living separately enjoying their divided shares separately. It is also forthcoming that the jointness of the family had been severed long prior to the filing of the application before the Land Tribunal in Form No.1 seeking conferment of occupancy right.
14. If really the family was joint, as sought to be contended by the learned Counsel for the appellants herein, plaintiff alone should have filed an application seeking conferment of occupancy rights for and on behalf of the joint family. The very fact that Chandrappa also joined Appanna in filing application in Form No.1 would go to show that they had mutually divided this tenanted land equally amongst themselves. Both the trial Court and the First Appellate Court have given a categorical finding in regard to the partition of this property also.
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15. Even if it is admitted that ExD1 is an inadmissible document and that could not have been relied upon by the trial Court and affirmed by the First Appellate Court when overwhelming admissions are culled out from the mouth of PW1 and other witnesses. Those admissions cannot be called as stray admissions by any stretch of imagination. They are virtually admissions within the purview of Section 17 of the Evidence Act.
16. Admittedly the entire extent of land in Sy.No.118/12B had been purchased by Appanna vide Ex.D12 the sale deed. The very fact of both the parties filing applications seeking conferment of occupancy right, would show that the purchase had been made jointly and hence both of them had contributed the funds jointly to purchase the property. This inference cannot be considered as ill- founded.
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17. PW1 Chandrappa was alive when the evidence was commenced. He has been examined as PW1. He has admitted in his cross-examination that he has put up a house in the land which has fallen to his share. He has further admitted that he had dug a well in the land bearing Sy.No.118/12 i.e., the land allotted to him. He has further admitted a suggestion as true that he has dug the well and put up a pump by availing financial assistance on his own from the Society. Further he has deposed that he was growing sugarcane in the land allotted to him. One more important admission culled out from his mouth is found in page No.8 of his cross-examination. He has admitted the suggestion as true to the effect that application in Form No.7 was filed by Appanna including his name thinking that there would be difficulty in alienating the properties relating to Sy.No.118/12. PW1 has gone to the extent of giving an explanation to the effect that they have been residing separately only for the purpose of mess i.e., cooking. This cannot be considered as a plausible explanation since they 18 had already partitioned all ancestral properties of their family. Therefore, the separate living was not for any inconvenience amongst the members of the joint family, but because of an unequivocal partition which had taken place. PW1 has admitted that after the death of Irappa his Legal representatives viz., Nagavva and Neelavva have already sold 1/3 share of the land. This admission is found in page No.14. If there was no partition and if undivided 1/3rd share had been sold by Neelavva and Nagavva, it is ununderstandable as to how that alienation was not challenged seeking preferential right under Section 22 of Hindu Succession Act.
18. In fact, PW2 Tajaji Bhosale, who hails from the same Village has admitted that plaintiff has dug a well in his land pertaining to Sy.No.118/12B which has fallen to his share and that is his land. He has further admitted that an electric pump set has been installed to the well dug in the portion of the land belonging to the plaintiff. He has further 19 admitted that defendants 6 and 7 have already been living in the properties purchased by them and they have constructed their respective residential houses.
19. No credence could be attached to the evidence of PW2 because he has specifically deposed in the cross- examination that he does not know the contents of the affidavit filed in lieu of examination-in-chief and that he does not know reading in Kannada and writing in Kannada. He has further deposed that he did not give any information to the Advocate who has prepared the affidavit in lieu of examination in chief.
20. Suffice to state that the trial Court and the First Appellate Court have taken these important admissions culled out from the mouths of PWs.1 and 2 to probabilise the case of the defendants and there was a partition between Chandrappa and Appanna, in respect of the tenanted land also and therefore, the Land Tribunal chose to grant ½ share each to both of them. The trial Court has properly analysed 20 the oral and documentary evidence in right perspective and has assessed the same on the touchstone of intrinsic probabilities. This Court does not find any infirmity or illegality in the approach adopted by the trial Court and the cogent reasons given by the First Appellate Court to affirm the factual findings of the trial Court.
21. The First Appellate Court, being the final Court of facts, has also reassessed the entire evidence and thereby it has concurred with the judgment of the trial Court. The First Appellate Court has done its duty keeping in mind the responsibility of the First Court dealing with an appeal under Section 96 in the light of the principles reiterated by the Hon'ble Supreme Court in the case of Santhosh Hazari Vs. Purushottam Tiwari reported in AIR 2001 SC 965. As the trial Court has taken lot of pains in giving factual findings after proper evaluation of the evidence and the First Appellate Court has reiterated the same, no substantial question arises in this case. The important admission culled out from the 21 mouth of PW1 has also been referred to in page No.15 of the judgment of the Trial Court.
22. Viewed from any angle, the judgments of the trial Court as well as the Appellate Court are neither opposed to law or facts or probabilities. The substantial questions of law as proposed by the learned Counsel for the appellants in the appeal memo are not substantial questions of law in reality within the purview of Section 100 of CPC. Even otherwise this Court, while looking to the records, does not find the existence of any substantial questions of law and accordingly, no interference is absolutely called for. There is no scope for interfering with the well reasoned factual finding given by the Trial Court and concurrence of the same by the First Appellate Court and hence the appeal is liable to be dismissed.
23. Accordingly, the appeal filed challenging the judgments and decrees dated 29.10.2005 passed in 22 O.S.No.170/2000 by the Civil Judge (Jr.Dn.), Sankeshwar, and R.A.No.84/2005 dated 13.07.2007 by the Civil Judge (Sr.Dn.), Hukkeri, is dismissed as not fit for admission. Judgments of O.S.No.170/2000 and R.A.No.84/2005 are affirmed. No costs.
SD/-
JUDGE.
JT/-