The High Court
Case Details
- 1 - NC: 2025:KHC:4747 RSA No. 236 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO.236 OF 2016 (PAR) BETWEEN: SMT. CHIKKATHAYAMMA @ CHIKKAMAYAMMA W/O LATE THAMMAIAH @ KEMPEGOWDA, D/O DODDAMAYIGOWDA AGED ABOUT 45 YEARS, KONNAPURA VILLAGE, HALGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT - 571421 (BY SRI. SHARATH S GOWDA, ADVOCATE) …APPELLANT Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA AND: SMT. DODDATHAYAMMA SINCE DEAD BY HER LRS 1. SRI. SHANKARA S/O CHOWDEGOWDA AGED ABOUT 48 YEARS 2. SRI. YOGANANDA @ ANANDA S/O CHOWDEGOWDA AGED ABOUT 41 YEARS, 3. SRI. KRISHNA S/O CHOWDEGOWDA AGED ABOUT 36 YEARS, 4. SRI. RAMA S/O CHOWDEGOWDA AGED ABOUT 32 YEARS, RESPONDENT NO.1 TO 4 THE RESIDENTS OF - 2 - NC: 2025:KHC:4747 RSA No. 236 of 2016 KOMMERAHALLI VILLAGE, KASABA HOBLI, MANDYA TALUK, MANDYA – 571402. 5. SMT. JAYASHEELA W/O KEMPEGOWDA AGED ABOUT 48 YEARS, CHANNAPPANNA DODDI VILLAGE, MANDYA TALUK, MANDYA – 571402. …RESPONDENTS (BY SRI. PRAMOD R., ADVOCATE FOR R1 TO R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2014 PASSED IN RA.NO.43/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.08.2007 PASSED IN OS.NO.327/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) MANDYA. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA ORAL JUDGMENT Assailing the judgment and decree in RA No.43/2010 dated 21.04.2014 on the file of the Fast Track Court at
Legal Reasoning
Mandya, (hereinafter referred to as ‘the First Appellate Court’ for short) reversing the judgment and decree in OS No.327/2003 dated 31.08.2007 on the file of the Principal Civil Judge, (Junior Division), Mandya (hereinafter referred - 3 - NC: 2025:KHC:4747 RSA No. 236 of 2016 to as ‘the Trial Court’ for short), the plaintiff is before this Court in this regular second appeal. 2. The parties herein are referred to as per their rank before the Trial Court for the sake of convenience. 3. Brief facts of the case are that, suit for partition and separate possession seeking 1/6th share in the suit schedule property. 4. The family genealogical tree of the parties is culled out as under: Late Chowdegowda Doddathayamma @ Chowdamma Thammaiah @ Kempegowda (D2) Shankar Ananda (D3) Rama Krishna (D4) (D5) Chikkathayamma (Plaintiff) 5. The case of the plaintiff is that she is the wife of one Thammaiah @ Kempegowda, son of Chowdegowda and the marriage solemnized in the year 1982, - 4 - NC: 2025:KHC:4747 RSA No. 236 of 2016 Thammaiah @ Kempegowda died in the year 1986, leaving behind the plaintiff as his only legal heir, after his death the plaintiff and defendant Nos.1 to 4 constitute a Hindu Undivided Family and the suit schedule properties are the ancestral joint family properties of the plaintiff and defendant Nos.1 to 4, and the plaintiff is entitled for share. 6. Suit was contested by defendant No.3 inter alia, denying the relationship of the plaintiff with that of Thammaiah @ Kempegowda, it is contended that he died unmarried. That Kempegowda died intestate, leaving behind the defendants as his only legal heirs and the plaintiff is not the legal heir of Kempegowda. 7. Defendant No.6 filed a separate written statement denying the name of husband of plaintiff as Thammaiah, but it is contended that Kempegowda is the son of Chowdegowa, the original propositus. It is further contended that Kempegowda died unmarried and the plaintiff is not the wife of late Kempegowda and the - 5 - NC: 2025:KHC:4747 RSA No. 236 of 2016 plaintiff, being not the legal heir of late Kempegowda, is not entitled for any share in the suit schedule property. 8. The Trial Court on basis of the pleadings, framed the following issues: “1. Whether the plaintiff proves that she is the wife of chowdegowda? 2. Whether the plaintiff proves that she and defendants 1 to 4 are the co-parceners? 3. Whether the plaintiff proves that she is in joint possession off suit schedule property? 4. Whether the defendant proves that Kempegowda died unmarried? 5. Whether the plaintiff is entitled for relief of partition as prayed for? 6. Whether the plaintiff is entitled for mesne profits as prayed for? 7. What decree or order? Addl. Issue 1. Whether defendant No.6 proves the alleged prior partition as stated in para 7 of the written statement?” - 6 - NC: 2025:KHC:4747 RSA No. 236 of 2016 9. In order to prove the case, plaintiff herself examined as P.W.1, examined 5 witnesses as P.W.2 to P.W.6 and marked documents at Exs.P.1 to P.12. On the other hand, defendants examined three witnesses as D.W.1 to D.W.3 and marked documents at Exs.D.1 and D.2. 10. The Trial Court based on the pleadings, oral and documentary evidence arrived at a conclusion that : i. Plaintiff proves that she is the wife of Thammaiah @ Kempegowda; ii. Plaintiff proves that she and defendant Nos.1 to 4 are the coparceners; iii. Plaintiff proves that she along with defendant Nos.1 to 4 constituted a Hindu Undivided Family and by judgment and decree, the Trial Court arrived at a conclusion that the plaintiff is entitled for 1/6th share in the suit schedule property by metes and bounds. - 7 - NC: 2025:KHC:4747 RSA No. 236 of 2016 11. Aggrieved, the defendant preferred appeal before the First Appellate Court, the First Appellate Court, while re-appreciating and re-considering the entire material on record, reversed the judgment and decree of the Trial Court and dismissed the suit of the plaintiff. Aggrieved by which, the plaintiff is before this Court in this regular second appeal. 12. This Court, while admitting the appeal, framed the following substantial questions of law on 14.02.2020, which reads as under: “1. Whether the appellate Court was justified in holding that the marriage of the plaintiff with Thammaiah @ Kempegowda, was not proved in the light of the oral evidence as well as documentary evidence adduced by the plaintiff? 2. Whether the appellate Court was justified in coming to the conclusion that the plaintiff was not the wife of Thammaiah @ Kempegowda, when his brother's and sister’s – (defendants) did not contest the suit by filing a written statement?” - 8 - NC: 2025:KHC:4747 RSA No. 236 of 2016 13. Learned counsel for the appellant and learned counsel appearing for the respondents have been heard on the substantial questions of law framed by this Court. 14. Learned counsel for the appellant submits that the First Appellate Court being the last fact finding Court ought to have rightly appreciated the entire oral and documentary evidence and considered the documents produced by the plaintiff, more particularly, Exs.P.8- Lagnapathrike, Ex.P.9-Marriage invitation, Ex.P.10- Genealogical Tree, Ex.P.11-marriage gift list and Ex.P.12- voter’s list, which clearly indicate that the plaintiff is the wife of late Thammaiah @ Kempegowda and corroborated with the evidence of P.W.2 to P.W.4, who are independent witness, categorically deposed that the marriage of the plaintiff with Thammaiah @ Kempegowda was solemnized at Nittur Kodi Arkeswara Swamy Temple in the year 1982, supporting the case of the plaintiff, which the Trial Court on appreciation, rightly arrived at a conclusion that the plaintiff is the wife of Thammaiah @ Kempegowda and the - 9 - NC: 2025:KHC:4747 RSA No. 236 of 2016 plaintiff is entitled for share in the suit schedule property. The First Appellate Court has failed to consider the entire oral and documentary evidence produced by the plaintiff and doubted the genuineness of Ex.P.8 and P.9, when the same document is not even referred to the forensic to verify the veracity, having failed to do so, the First Appellate Court ought not to have arrived at a conclusion that Exs.P8 and P9 cannot be believed. Learned counsel for the appellant submits that the substantial questions of law need to be answered in favour of the appellant.
Legal Reasoning
15. Per contra, learned counsel for the respondents, justifying the judgment and decree of the First Appellate Court, submits that the First Appellate Court has rightly appreciated the entire pleadings, and evidence and arrived at a conclusion that the plaintiff is not the wife of the deceased Thammaiah @ Kempegowda. Drawing the attention to the cross-examination of P.W.2 to P.W.4, it is submitted that the evidence of witnesses cannot be relied upon as they did not stand the testimony of cross- - 10 - NC: 2025:KHC:4747 RSA No. 236 of 2016 examination, and the evidence of D.W.1 to D.W.3 clearly establishes that Kempegowda died unmarried and the plaintiff is not the wife of Kempegowda to claim share in the suit schedule properties. 16. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record. 17. Plaintiff, claims to be a wife of Thammaiah @ Kempegowda, contends that their marriage took place in the year 1982, the plaintiff has claimed her right based on the status of wife of Thammaiah @ Kempegowda, who was admittedly a coparcener along with defendant Nos.1 to 4. The plaintiff, in support of her contention, has produced the documentary evidence Lagna Patrike at Ex.P.8, Wedding Card at Ex.P.9, voters list at P.12 to establish her marital status with Thammaiah @ Kempegowda. In support of the documentary evidence, the plaintiff has also relied upon the independent evidence of P.W2 to P.W.4. P.W.2 is the brother of the plaintiff, P.W.3 is Kemparaju, - 11 - NC: 2025:KHC:4747 RSA No. 236 of 2016 P.W.4 is one Sridharamurthy, who is the son of the priest, who has performed the marriage of the plaintiff with Thammaiah @ Kempegowda. P.W.5 -one K.R. Shivanna and P.W.6-Rathanamma who all deposed in their evidence that the marriage of the plaintiff was solemnized with Thammaiah @ Kempegowda at Nittur Kodi Arkeswara Swamy Temple in the year 1982, which clearly supports the case of the plaintiff. 18. The credibility of their evidence remains unshaken in the cross examination and in spite of the same, the First Appellate Court disbelieved the evidence of the plaintiff and the documentary evidence produced by the plaintiff, more particularly the lagna patrike at Ex.P.8 and the wedding card at Ex.P.9, which was on an undisputed point of time and the plaintiff's evidence corroborated with the oral and documentary evidence establishes that the plaintiff is the wife of Thaimmaiah @ Kempegowda. The First Appellate Court, on erroneous finding, disbelieves these documents and arrives at a - 12 - NC: 2025:KHC:4747 RSA No. 236 of 2016 totally different conclusion and dismisses the suit of the plaintiff without considering that the Trial Court’s judgment was on thorough examination of all the oral and documentary evidence. 19. The First Appellate Court being the last fact finding Court ought to have rightly appreciated the entire oral and documentary evidence in a proper perspective. The Apex Court in the case of Santosh Hazari v. Purushottam Tiwari1 (Santosh Hazari) has clearly laid down that the appeal under Section 96 of the CPC is a valuable right and the First Appellate Court has to carefully appreciate the entire oral and documentary evidence, when a reversal is made by the First Appellate Court should be more cautious. The First Appellate Court while reversing the finding of fact must come into the close quarters with the reasoning assigned by the Trial Court and then assign its own reason for arriving at a different finding. This would satisfy the Court hearing the further 1 (2001) 3 SCC 179 - 13 - NC: 2025:KHC:4747 RSA No. 236 of 2016 appeal that the First Appellate Court had discharged the duty accepted by it. The Apex Court in the case of Santosh Hazari stated supra at paragraph No.15 held as under: “15. A perusal of the judgment of the trial court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the - 14 - NC: 2025:KHC:4747 RSA No. 236 of 2016 appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings - 15 - NC: 2025:KHC:4747 RSA No. 236 of 2016 are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayanibai [(1983) 1 SCC 35 : AIR 1983 SC 114] ) The rule is — and it is nothing more than a rule of practice — that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap - 16 - NC: 2025:KHC:4747 RSA No. 236 of 2016 Narain Singh [1950 SCC 714 : AIR 1951 SC 120] ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.” - 17 - NC: 2025:KHC:4747 RSA No. 236 of 2016 20. The findings of the First Appellate Court is legally unsustainable and the First Appellate Court was not justified in holding that the marriage of the plaintiff with Thammaiah @ Kempegowda was not proved when there were sufficient and reliable documents and oral evidence produced by the plaintiff to substantiate that she is the wife of Thammaiah @ Kempegowda. 21. The Trial court, by the judgment and decree, granted share to the mother and excluded the daughter, who was defendant No.6 and awarded 1/6th share. Now in light of the death of the mother, the share needs to be divided among the other coparceners who are plaintiff and defendant Nos.2 to 6 and accordingly, they are entitled for 1/6th share and plaintiff and defendant Nos.2 to 6 are entitled for 1/6th share. For the forgoing reasons, the substantial questions of law framed by this Court are answered in favour of the appellant/plaintiff and this Court pass the following: - 18 - NC: 2025:KHC:4747 RSA No. 236 of 2016
Decision
ORDER i. The regular second appeal is allowed. ii. Judgment and decree of the First Appellate Court is set aside and the judgment and decree of the Trial Court stands modified holding that the plaintiff and defendant Nos.2 to 6 are entitled for 1/6th share. iii. Decree to be drawn accordingly. Sd/- ________________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 31