The High Court
Case Details
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS 26TH THE DAY OF MARCH 2025 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.2511 OF 2010 (DEC-INJ) BETWEEN: 1. SRI MUNIKRISHNAPPA AGED ABOUT 65 YEARS 2. SRI MUNISWAMY AGED ABOUT 63 YEARS 3. SRI VENKATAPPA AGED ABOUT 60 YEARS 4. SRI KANYAPPA AGED ABOUT 58 YEARS ALL ARE SONS OF MUNIYAPPA R/AT DODDATHOGUR VILLAGE BEGUR HOBLI BENGALURU NORTH TALUK-560 100 (BY SRI B.K.CHANDRASHEKAR, ADVOCATE) AND: 1. SRI NANJAPPA SINCE DEAD BY HIS LRS. 1(a) SMT.YELLAMA W/O.NANJAPPA AGED ABOUT 65 YEARS 1(b) SMT.RATHNAMMA D/O.NANJAPPA AGED ABOUT 44 YEARS … APPELLANTS 2 1(c) SRI GULLAPA S/O.NANJAPPA SINCE DEAD BY HIS LRS. 1(c)(a) SMT.NETHRA S. W/O.LATE GULLAPPA AGED ABOUT 37 YEARS 1(c)(b) CHI.SUJAN G. S/O.LATE GULLAPPA AGED ABOUT 16 YEARS 1(c)(c) CHI.MOHAN G. S/O.LATE GULLAPPA AGED ABOUT 14 YEARS 1(c)(d) KUM.MONIKA G. D/O.LATE GULLAPPA AGED ABOUT 12 YEARS R-1(c)(b) to R-1(c)(d) ARE MINORS REP.BY THEIR NATURAL GUARDIAN SMT.NETHRA S., R-1(c)(a) R-1(c)(a) to R-1(c)(d) ARE R/AT DODDATHOGUR VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK 1(d) SMT.KAVITHA D/O.NANJAPPA AGED ABOUT 35 YEARS R-1(a), 1(b) and 1(d) ARE R/AT DODDATHOGUR VILLAGE BEGUR HOBLI BENGALURU SOUTH TALUK 3 1(e) SRI MUNISWAMY SINCE DEAD BY HIS LRS. 1(e)(a) LAKSHMAMMA W/O.LATE MUNISWAMY AGED ABOUT 52 YEARS 1(e)(b) VARALAKSHMI M. D/O.LATE MUNISWAMY 1(e)(c) MANJUNATH M. S/O.MUNISWAMY AGED ABOUT 28 YEARS 1(e)(d) KARTHIK M. S/O.MUNISWAMY AGED ABOUT 26 YEARS 1(e)(e) MUNIRAJU S/O.MUNISWAMY AGED ABOUT 23 YEARS R-1(e)(a) to R-1(e)(e) ARE R/AT NO.1184 , VELANKINI ROAD NEAR YELLAMMA TEMPLE DODDATHOGUR VILLAGE BENGALURU SOUTH TALUK BENGALURU 1(f) SMT.SANJEEVAMMA D/O.LATE NANJAPPA W/O.RAJANNA AGED ABOUT 40 YEARS R/AT HUSKUR SARJAPURA HOBLI ANEKAL TALUK BENGALURU RURAL DISTRICT BENGALURU-560 099 4
Legal Reasoning
1(g) SMT.YELLAMMA D/O.LATE NANJAPPA W/O.MARIYAPPA AGED ABOUT 38 YEARS R/AT CHIKKATHOGURU BEGUR HOBLI ELECTRONIC CITY POST BENGALURU-560 100 2. THE LAND ACQUISITION OFFICER KARNATAKA KAIGARIKA PRADESHABHIVRUDDHI MANDALI (KAIDB) BUILDING 1ST CROSS, GANDHI NAGAR BENGALURU-560 009 … RESPONDENTS (BY SRI N.R.NAIK, ADVOCATE FOR R-1(a) to R-1(d), R-1(f) AND R-1(g); SRI G.L.VISHWANATH, SENIOR COUNSEL FOR SMT.MANASA B.RAO AND SMT.DHRITHI VISHWANATH, ADVOCATES FOR R-1(e)(a) to R-1(e)(e); SRI P.V.CHANDRA SHEKAR, ADVOCATE FOR R-2) THIS REGUALR SECOND APEPAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.11.2008 PASSED IN O.S.NO.508/1998 BY ADDITIONAL II CIVIL JUDGE (JR.DVN.), BENGALURU RURAL DISTRICT, BENGALURU AND JUDGMENT AND DECREE 13.07.2010 PASSED IN RA.NO.24/2009 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND I/C. I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND CONSEQUENTLY DECREE THE SUIT FILED BY THE APPELLANTS. THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: 5 CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR CAV JUDGMENT This Regular Second Appeal is preferred by the plaintiffs being aggrieved by the impugned judgment and decree dated 13.07.2010 passed in RA.No.24/2009 by the Principal District and Sessions Judge and I/c. I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru (for short, 'the first Appellate Court'), wherein the judgment and decree dated 29.11.2008 passed in O.S.No.508/1998 by Additional II Civil Judge (Jr.Dvn.), Bengaluru Rural District, Bengaluru (for short, 'the trial Court'), came to be confirmed dismissing the appeal. 2. For the sake of convenience, the parties shall be referred to as per their status before the trial Court. 3. Brief facts of the case are as under: One Nanjappa was the propositus of the joint family and he had two sons namely, Kanyappa and Jhuttappa. Kanyappa had a son by name, Muniyappa and the plaintiffs are the 6 children of the said Muniyappa. On the other hand, Jhuttappa had two sons, namely, Nanjappa and Munigowdappa. Nanjappa is defendant No.1 before the trial Court and the contesting defendant. 3.1 It is the case of the plaintiffs that the partition took place between the family members on 26.07.1980. The plaintiffs claimed that they are in peaceful possession and enjoyment of the suit schedule properties, namely four items in different survey numbers as mentioned in the schedule to the plaint. It is admitted that the khatha/revenue entries of the properties has not been changed in the names of the plaintiffs. 3.2 It is the specific plea of the plaintiffs that defendant No.1 has absolutely no manner of right, title and interest over the suit schedule properties, which are fallen to the share of the plaintiffs and they are in peaceful possession and enjoyment of the same. Therefore, defendant No.1 is 7 unnecessarily interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule properties. It is the further plea of the plaintiffs that on 10.10.1998, defendant No.1 along with his henchmen came to the suit property making a claim that he is also the joint owner of the suit schedule properties, which was strongly resisted by the plaintiffs, but defendant No.1 warned that he would come with men and material and take possession of the property as he is the joint owner. Hence, the plaintiffs were constrained to file a Police complaint. It is further case of the plaintiffs that since no protection was extended by the jurisdictional Police on the ground that it is a civil dispute, the plaintiffs were constrained to file a suit seeking relief of partition, declaration and consequential relief of permanent injunction against defendant No.1 over the suit schedule properties. 3.3 Defendant No.1, on appearance, filed detailed written statement denying the claim of the plaintiffs over the suit schedule properties including their right over the same and 8 took up a plea that the entire suit schedule properties belong to his father, Jhuttappa and that Muniyappa, who is none other than the father of the plaintiffs had already relinquished his right over the ancestral properties by executing a registered release deed. Therefore, the plaintiffs or their father do not have any right, title or interest over the suit schedule properties, in view of the registered release deed having been executed way back on 19.03.1956. It is also pleaded by defendant No.1 categorically that in view of the execution of the release deed, defendant No.1 and his brother became the absolute owners and are in possession and enjoyment of the suit schedule properties. Defendant No.1 also pleaded that the plaintiffs are not in possession of any of the suit schedule properties, thereby the entire claim so made by the plaintiffs is not sustainable and is false and frivolous. However, no cause of action arose as the same is made only for the purpose of filing the present case. On these grounds, defendant No.1 sought for dismissal of the suit. 9 3.4 During pendency of the suit, 'the Land Acquisition Officer, KIADB' came to be impleaded. However, no written statement has been filed by defendant No.2 (KIADB). 3.5 On the basis of the pleadings, the trial Court framed the following issues: "1. Whether the plaintiffs prove that they got title over the suit schedule property by virtue of partition deed dated 26.07.1980? 2. Whether the plaintiffs prove that they are in actual possession of the suit schedule property as on the date of the suit? 3. Whether the plaintiffs prove the alleged defendant interfere in the suit schedule property? 4. What order or decree?" 3.6 In order to substantiate their case, plaintiff No.1 got examined himself as PW.1 and other two witnesses as PWs.2 and 3 and got marked documents as Exs.P1 to P5, whereas defendant No.1 examined his son as his Power of Attorney 10 Holder as DW.1 and got marked documents as per Exs.D1 to D7. 3.7 On the basis of the materials placed on record, both oral and documentary, the trial Court did not agree with the contentions put-forth by the plaintiffs and dismissed their suit holding that there was no partition and the same was not acted upon. 3.8 Being aggrieved by dismissal of suit, the plaintiffs preferred an appeal in RA.No.24/2009 on several grounds urged therein. 3.9 The first Appellate Court, after hearing learned counsel for plaintiffs as well as learned counsel for defendants, formulated the following points for consideration: "1. Whether the document marked as Ex.P.1 is a memorandum of partition reiterating the earlier partition as contended by the plaintiffs? 2. Whether any interference is called for by this court? If so to what extent? 11 3. To what reliefs and decree the parties are entitled for?" 3.10 On re-appreciation and re-evaluation of the entire evidence, the first Appellate Court came to the conclusion that the document so relied on by the plaintiffs at Ex.P1 is a partition deed by itself and not a Memorandum of Partition reiterating the earlier partition. It has also come to the conclusion that Ex.P1 is a partition deed in presenti. The first Appellate Court, therefore, came to a conclusion that Ex.P1 is inadmissible in evidence, as the same is not registered under the Registration Act, 1908 (for short, 'the Act') which contemplates mandatory registration under Section 17. Hence, the first Appellate Court did not find favour with the contentions of the plaintiffs and the materials placed on record and also did not find any need or cogent reason to interfere with dismissal of the suit by the trial Court and accordingly, dismissed the appeal preferred by the plaintiffs and 12 consequently, upheld the judgment and decree of the trial Court. 3.11 Being aggrieved by the concurrent findings of dismissal passed by the trial Court as well as the first Appellate Court, the plaintiffs are before this Court questioning the same raising substantial questions of law to be considered by this Court. 4. It is the vehement contention of Sri B.K.Chandrashekar, learned counsel that the impugned judgments and decree passed by the trial Court and the first Appellate Court are illegal and contrary to the materials placed on record, both oral and documentary. He further contends that both the Courts have not appreciated the documentary evidence produced by the plaintiffs as well as defendant No.1. The trial Court as well as the first Appellate Court have totally failed to appreciate Ex.P1, the original paalu patti which talks about the partition having been effected earlier between the 13 parties and the plaintiffs and their father having enjoyed the suit schedule properties by way of an oral partition. Despite production of Ex.P1, this aspect has been conveniently ignored and brushed aside by both the Courts, which is illegal and unsustainable. 4.1 Learned counsel further contends that the trial Court as well as the first Appellate Court have conveniently ignored to look into the contents of Ex.D2, the original release deed dated 19.03.1956 and committed a gross error in not framing any proper issue on the said release deed. It is also vehemently contended by learned counsel that the first Appellate Court has failed to appreciate both Exs.P1 and D2 and though has come to the conclusion in the reasoning that the issue with regard to validity of genuineness of the binding effect of Ex.D2 not being framed, the trial Court has not justified in observing the same has been acted upon and it has further held that the observation so made in respect of Ex.D2 is not sustainable in law. Learned counsel contends that the 14 first Appellate Court by making such observation with regard to validity of Ex.D2, dismissed the appeal by affirming the suit, which is unsustainable, illegal and same is liable to be set-aside and reversed by this Court. 4.2 Learned counsel contends that on a plain reading of Ex.P1, it is apparently clear that there was an oral partition between Sri Muniyappa, the father of the appellants and two sons of Jhuttappa and therefore, the factum of oral partition between these two branches of the family of Nanjappa came to be reduced into writing as per Ex.P1. Therefore, he vehemently contends that the said document Ex.P1 is only a mere statement of fact of reiteration and therefore, this document does not require any registration much less as contemplated under Section 17(1)(b) of the Act. He further contends that both the Courts have committed a serious error in appreciating Ex.P1 and have failed to understand the document to be paalu patti, which is a statement and 15 reiteration of earlier partition between the parties and not a fresh partition deed by itself. 4.3 Learned counsel further contends that defendant No.1 has relied upon Ex.D2, release deed dated 19.03.1956. However, it was the duty of the trial Court to frame an issue on the validity or effectiveness or binding nature of the said deed and it would have been the onus on defendant No.1 to establish and prove the same. Both the Courts having not framed any such issue on Ex.D2, the release deed, the entire judgment and decree is vitiated and the same requires to be set-aside and reversed. Consequently, the suit of the plaintiffs to be allowed in toto. 4.4 Learned counsel, on the basis of these submissions, contends that it is a well established rule of law that once a partition has taken place between the parties as oral or written and the same is acted upon and thereafter, the paalu patti, statement or memorandum is executed or put in writing by 16 the parties, the question of such document whatever nomenclature it is called, need not be registered and would not come within the purview of Section 17 of the Act. Learned counsel further contends that after the release deed executed in the year 1956, in order to maintain good relationship, peace and harmony, the plaintiffs executed paalu patti, which is in furtherance of the oral partition and thereby lost three properties only with an intention to maintain amicable relationship between the family members, who are admittedly related to each other. It is also contended by learned counsel that the plaintiffs have only taken four properties, whereas defendant No.1 gets nine properties. Therefore, defendant No.1 got more properties than that of the plaintiffs. Hence, learned counsel for plaintiffs contends that the trial Court as well as the first Appellate Court have not properly considered Exs.P1 and D2 while rendering the impugned judgments and decree. Under these circumstances, he contends that both the Courts have miserably failed to appreciate these two 17 important documents and have committed a serious error in dismissing the suit. 4.5 Learned counsel relied on the following judgments in support of his case: i) Thulasidhara & another v. Narayanappa & Others in Civil Appeal No.784/2010 [DD.01.05.2019]; ii) Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. in Civil Appeal No.7764/2014 [DD.31.07.2020]; iii) Kale & Others v. Deputy Director of Consolidation reported in 1976 AIR 807; iv) Rangappa vs. Jayamma reported in ILR 1987 KAR 2889; v) Sheetal Prasad (Dead) through LRs. & Ors. v. Ram Krishna & Ors. in Second Appeal No.877/2004 [DD.08.05.2017]; 18 vi) Jagdish Singh v. Natthu Singh reported in AIR 1992 SC 1604; vii) Bondar Singh and Others vs. Nihal Singh and Others reported in ILR 2003 KAR 2253; viii) Kashmir Singh v. Harnam Singh and Anr. reported in 2008 AIR SCW 2417. 5. Per contra, Sri G.L.Vishwanath, learned Senior Counsel representing some of the legal representatives defendant No.1 vehemently contends that there is no illegality, perversity, arbitrariness or any error apparent on the face of the records or non-appreciation of the materials placed before the Court and therefore, the judgments and decree rendered by both the Courts are justifiable. Hence, he sustains the impugned judgments and decree passed by both the Courts. 5.1 It is the vehement contention of learned Senior Counsel that the trial Court going into the details of Ex.P1, the partition deed so also taking into consideration of Ex.D2, the 19 release deed has clearly and categorically come to the conclusion that Ex.P1, partition deed is not a reiteration or a statement of earlier partition, but a partition deed by itself. Therefore, it is vehemently contended that Ex.P1 which is now tried to portray as paalu patti is not reiteration of earlier partition between the family members but it is the partition deed executed on the said date i.e. 26.07.1980 providing certain rights. Therefore, it is to be acted on that said date of execution of the partition i.e. 26.07.1980. It is also contended that as per Ex.P1, there is only 'A' schedule property, which is mentioned and there is no 'B' schedule property. Under the circumstance, he contends that when a document is executed by the parties where rights are being provided in the guise of the partition, it requires mandatory registration under the Act. Since Ex.P.1 is not a registered document, it is inadmissible in nature. This aspect of the matter has been clearly appreciated and carefully analysed by the trial Court and a finding is given that the said document cannot be taken into consideration 20 even for collateral purposes and therefore, it is inadmissible in evidence. 5.2 In the second limb of argument, learned Senior Counsel contends that Ex.D2, the release deed is executed by Late Muniyappa, the father of the plaintiffs in favour of defendant No.1 and his brother and the said document is a registered document dated 19.03.1956. He further contends that this document is very much within the knowledge of the plaintiffs and so also it was within the knowledge of their father, Muniyappa as he is the party to the said document and Late Muniyappa himself having relinquished his rights in favour of defendant No.1, the question of plaintiffs getting any right over the relinquished properties does not arise. Hence, no rights flow to the plaintiffs which did not exist in favour of their father. 5.3 Learned Senior Counsel vehemently contends that when the suit is filed by the plaintiffs asserting the partition 21 having taken place or their rights over the suit schedule property, the onus is on the plaintiffs to prove and establish the same. Firstly, to show that the properties are ancestral and joint family properties and they remain in the nature of joint family or that it was the partition between the family members and acted upon or that pursuant to the release deed in the year 1956, there was jointness and reunion of the family, thereby making it once again joint family properties. All these aspects have not been pleaded or elaborated by the plaintiffs in their pleadings. In fact, he contends that Ex.D2, the release deed has been conveniently suppressed by the plaintiffs in their plaint. It is only after defendant No.1 took up his plea in his written statement. The theory is being concocted or made up to cover and overcome the registered release deed which unfortunately the plaintiffs are unsuccessful in doing and so also, the release deed being a registered document quite prior to the alleged Ex.P1, paalu patti, the same would not come to their aid and benefit. 22 5.4 Learned Senior Counsel further contends that pursuant to registered release deed, defendant No.1 has been in peaceful possession and enjoyment and the revenue entries are in the name of defendant No.1, which are not disputed. It is also contended that no satisfactory explanation is given as to why the brother of defendant No.1 is not made as a party to the suit proceedings. It is also vehemently contended by learned Senior Counsel that at the stage of the second appeal, a new case has been put and canvassed with regard to Ex.D2, the release deed to have been proved and established by defendant No.1. He further contends that all these aspects have been elaborately gone into by the trial Court as well as the first Appellate Court and all the issues framed have been negatived against the plaintiffs and decided in favour of defendant No.1. 5.5 It is vehemently contended by learned Senior Counsel that the present proceedings are filed under Section 100 of CPC and therefore, the scope of Section 100 of CPC is 23 very narrow and this Court cannot go into the facts of the case or new facts put up in this second appeal which have not been pleaded or placed before both the Courts below and there being concurrent finding of fact after appreciation of the evidence, both oral and documentary, there is very little to be considered and decided by this Court only as to whether if there is any substantial question of law to be considered in the case on hand, which according to learned Senior Counsel is in the negative. Therefore, it is the vehement contention of learned Senior Counsel that the judgment and decree passed by the trial Court, affirmed by the first Appellate Court is absolutely justifiable and does not call for any interference, much less at the stage of the second appeal under Section 100 of CPC to go back to the facts of the case, which have already been considered by the first Appellate Court in details. Hence, he seeks dismissal of this appeal and consequently, to affirm the judgments and decree passed by both the Courts. 24 5.6 Learned Senior Counsel relied on the following judgments in support of his case: i) S Arumugham & another v. Rajshekhar in Regular Second Appeal No.5384/2010 [DD.22.07.2022]; ii) Madasamy Thevar S. v. A.M.Arjuna Raja reported in 2000(3) Law Weekly 793, Madras High Court; iii) S.Subramanian v. S.Ramaswamy and Others reported in (2019)6 SCC 46; iv) Roshan Singh v. Zile Singh reported in AIR 1988 SC 881; v) Sita Ram Bhama v. Ramatar Bhama reported in (2018)15 SCC 130; vi) Sri P.Anjanappa and Others v. Sri A.P.Nanjundappa and Others in RFA.No.700/1998 [DD. 30.08.2005]; 25 vii) Hullappa v. The State of Karnataka, through Deputy Commissioner, Bidar and Others reported in AIR 2013 KAR 37; viii) Thakamma Mathew v. M.Azamathulla Khan reported in 1993 Supp (4) SCC 492; ix) Om Prakash and Others vs. Ram Kumar and Others reported in (1991)1 SCC 441; x) Shiv Kumar Sharma vs. Santosh Kumari reported in 2007(8) SCC 600; xi) Land Acquisition Officer & Mandal Revenue Officer v. V.Narasaiah reported in (2001)3 SCC 530; xii) Pushpalatha N.V. vs. V.Padma and Ors. reported in 2019(1)KCCR 256. 6. Sri N.R.Naik, learned counsel representing some of the legal representatives of defendant No.1 and Sri P.V.Chandra Shekar, learned counsel for defendant No.2- KIADB support the case of defendant No.1 and sustain the 26 impugned judgments and decree passed by the trial Court as well as the first Appellate Court and adds that the onus is absolutely on the plaintiffs to establish and prove the case and not to rely upon the weakness of the defendants. It is also contended by him that it was for the plaintiffs to prove as to whether there was subsequent reunion of the joint family and the status of joint family having revived by placing cogent materials on record. However, the same having not done either by way of oral evidence or documentary evidence, it cannot be construed and presumed that the joint family status revived to the benefit of plaintiffs. He also contends that the plaintiffs have suppressed facts with an intention to take a favourable order but have been unsuccessful in establishing their case. Hence, he seeks dismissal of the appeal. 7. This Court vide order dated 04.02.2021, formulated following substantial question of law for consideration: "i) Whether the Courts below could have decided the suit filed by the plaintiffs without framing 27 an issue on the validity of the registered Release Deed-Ex.D2 dated 19.03.1956 put forward by the defendants?" 8. I have heard learned counsel Sri K.B.Chandrashekar for appellants-plaintiffs and Sri G.L.Vishwanath, learned Senior Counsel appearing on behalf of some of the legal representatives of respondent No.1-defendant No.1, Sri N.R.Naik, learned counsel appearing on behalf of some of the legal representatives of respondent No.1-defendant No.1 and Sri P.V.Chandra Shekar, learned counsel for respondent No.2-defendant No.2. 9. One Nanjappa being the propositus and the relationship of the plaintiffs and defendant No.1 are not in dispute. The question before the trial Court and the first Appellate Court is only with regard to whether Ex.P1 is a memorandum of partition reiterating earlier oral partition? and whether Ex.D2, the release deed executed by the father of the plaintiffs is binding? These two documents have been 28 elaborately and exhaustibly dealt with by the trial Court and the first Appellate Court. It is not in dispute that the plaintiffs relied on Ex.P1 and did not make any mention of Ex.D2, which is an earlier executed document by the father of the plaintiffs with defendant No.1 and his brother. 10. Though it is claimed by the plaintiffs that Ex.P1 is only a paalu patti, which is reiteration of an earlier oral partition, does not require registration as contemplated under Section 17 of the Act, the same is not agreed by the trial Court as well as the first Appellate Court. This document Ex.P1 has been discussed by both the Courts and have come to a conclusion that Ex.P1 is a partition deed in presenti. Therefore, when the partition deed talks about the present and executed in the present by providing certain rights, the same requires to be registered under Section 17 of the Act and the said document having not been registered, it is not admissible in evidence. Therefore, the trial Court and the first Appellate Court by dealing with Ex.P1 elaborately by appreciating the 29 contents of the document, held that Ex.P1 is an inadmissible evidence. 11. Secondly, coming to the aspect of Ex.D2, the release deed, nothing prevented the plaintiffs to disclose the release deed in the pleadings as it is the case of the plaintiffs that by virtue of the release deed, they get certain properties. If that was the situation, the plaintiffs ought to have mentioned the release deed in their pleadings and should have come clean with the contents of the release deed and the properties released and if any retained. It is also seen that this registered document of release deed is not questioned or challenged by the plaintiffs till date. This aspect has been considered by both the trial Court as well as the first Appellate Court while deciding the matters. 12. In a suit filed for partition or for that matter any other suit, the onus is always on the plaintiffs to prove and establish and it is a fundamental rule of law that the plaintiffs cannot rely/stand on the weakness of the defendants. 30 Therefore, the plaintiffs having failed to establish Ex.P1 to be a paalu patti in pursuance to an oral partition deed, cannot now try to rely on the document produced by defendant No.1 at Ex.D2 to substantiate their case, as it was not the case of the plaintiffs initially or even later questioning the release deed Ex.D2. 13. Learned counsel for plaintiffs has heavily relied upon the judgments with regard to the paalu patti or memorandum of partition reiterating earlier partition not required to be registered under the Act. This aspect of the matter and the law laid down by the Hon'ble Apex Court are not disputed. But, unfortunately, for the plaintiffs, the same is not applicable to the present facts and circumstances of the case for the reasons stated by the trial Court as well as the first Appellate Court. This Court does not find any good ground or cogent reason to differ with the said findings of both the Courts. 14. Under the circumstances, the present appeal which is filed to consider the substantial questions of law has to be 31 seen by this Court to decide as to whether the question of law framed by this Court as stated earlier is to be answered in the affirmative or negative. This Court sitting in the second appeal is required to consider the substantial question of law under Section 100 of the CPC, which is limited in scope to decide not only mere question of law but substantial question of law, hence, it will have to be very circumspect and careful in not venturing into analysing or re-appreciating the question of fact which has already been decided by the first appellate Court, which is the last Court for appreciation of question of facts and analysation of the evidence and unless there is a grave error committed by the first appellate Court in not appreciating any evidentiary matter which are placed by the parties before both the Courts and having not considered the same which are admitted by the parties available on record, this Court would not interfere in the judgment passed by the Court below on the question of fact. When two Courts have already considered the question of fact and the question of law 32 to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record as regards substantial question of law. 15. It is also relevant to note that the release deed is dated 19.03.1956 and paalu patti is claimed to be dated 26.07.1980 alleged to be reiterating the earlier partition. No such partition is placed on record; no materials to show that the partition has taken place; nobody has adduced with regard to such a partition and the same having been acted upon. The plaintiffs have filed the suit in the year 1998 i.e. after a period of 40 years from the date of the registered release deed and after a period of 18 years from the date of so called paalu patti, which is claimed to be reiteration of the partition deed effected much earlier. The huge delay is also to be taken into consideration in filing the suit, for which, no explanation is 33 provided. The fact also remains that admittedly, the revenue entries are not in the names of the plaintiffs in respect of any properties. This itself belies the theory put-forth by the plaintiffs. These aspects have been well considered by the trial Court as well as the first Appellate Court. If it is the case of the plaintiffs that there is a joint family status, there is no material to produce on record to show when the parties are reunited and when they started living together as a joint family. The relevant portion of Ex.P1 reads as follows: "…………………F ¢£À F PɼÀPÀAqÀ ¥ÀAZÁ¬ÄvÀgÀ ¸ÀªÀÄPÀëªÀÄ £ÀªÀÄä, £ÀªÀÄä C£ÀĨsÀªÀzÀ jÃvÁå J.µÉqÀÆå$ï zÁUÉ 1£Éà PÀ£ÉߥÀà£À M§â£Éà ªÀÄUÀ ªÀÄĤAiÀÄ¥Àà ©. µÉqÀÆå$ïzÁUÉ 2£Éà dÄlÖ¥Àà£À ªÀÄPÀ̼ÀÄ 1£Éà £ÀAd¥Àà 2£Éà ªÀÄĤUÉÆëAzÀ¥Àà JA§ÄzÁVAiÀÄÆ JgÀqÀÄ ¨sÁUÀUÀ¼ÁV «AUÀr¹PÉÆAqÀÄ vÀ$Á MAzÉÆAzÀÄ ¥ÀAZÁ¬ÄÛ ¥Á®Ä ¥ÀnÖAiÀÄ£ÀÄß ªÀiÁrPÉÆAqÀÄ ºÀAaPÉÆArgÀÄvÉÛêÉ. F $ÁUÁAiÀÄÄÛ DAiÀiÁ µÉqÀÆå$ïzÁgÀgÉà CªÀgÀªÀgÀgÀ ¨sÁUÀzÀ ¸ÉÆvÀÛUÀ¼À ¨Á§vÀÄÛ PÀAzÁAiÀÄ ªÀUÉÊgÉ ¥ÁªÀw ªÀiÁqÀÄvÁÛ SÁvÉ ªÀÄvÀÄÛ ¥ÀºÀtÂAiÀÄ£ÀÄß ªÀUÁð¬Ä¹PÉÆAqÀÄ EµÀÖ §AzÀ jÃwAiÀÄ°è DAiÀiÁ µÉqÀÆå$ïzÁgÀgÀ ¨sÁUÀzÀ ¸ÉÆvÀÄÛUÀ¼À°è zÉÆgÉAiÀħºÀÄzÁzÀ ¤¢ü, ¤PÉëÃ¥À , d®, vÀgÀÄ, ¥ÁµÁuÁ¢ü, CµÀÖ¨sÉÆÃUÀ vÉÃd ¸ËªÀÄåAUÀ½UÀÆ D¢ PÀæAiÀiÁ¢ ªÀåªÀºÁgÀ ZÀvÀĵÀÖAiÀÄåAUÀ½UÀÆ CªÀgÀªÀgÉà ªÀiÁ°ÃPÀgÁV ¥ÀÄvÀæ ¥ËvÀæ ªÀA±À¥ÁgÀA¥ÀgÀåªÁV ¸ÀÄR¢AzÀ C£ÀĨsÀ«¹PÉƼÀÀÄzÀÄ…………………." 16. The first relief sought in the plaint is admittedly for partition, but the second relief is for permanent injunction. If 34 that is the case of the plaintiffs that they had partitioned the properties and were in their respective peaceful possession and enjoyment of their respective shares, then there was no need for the plaintiffs to seek for relief of permanent injunction. Admittedly, no documentary entries/revenue entries are available in the names of the plaintiffs. Therefore, the theory put-forth by the plaintiffs is hard to believe. The trial Court and the first Appellate Court have rightly appreciated the same and negatived the contentions of the plaintiffs, which in my opinion, does not call for interference. 17. In view of the above, the appellants have neither made out a good case or given cogent reason or placed any material to consider the substantial question of law framed by this Court in their favour. Having given my thoughtful consideration to the entire materials placed on record and the submissions of learned counsel for appellants as well as the respondents, I do not find any good ground to consider the question of law in favour of the appellants by disturbing the 35 concurrent finding of fact arrived at by the trial Court and the first Appellate Court. Accordingly, this appeal does not deserve any meritorious consideration of the substantial question of law. Accordingly, I proceed to pass the following: i) ii)
Decision
ORDER The appeal preferred by the appellants-plaintiffs is dismissed; The impugned judgment and decree 13.07.2010 passed in RA.No.24/2009 by the Principal District and Sessions Judge and I/c. I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, confirming the judgment and decree dated 29.11.2008 passed in O.S.No.508/1998 by Additional II Civil Judge (Jr.Dvn.), Bengaluru Rural District, Bengaluru, is hereby affirmed; iii) Costs made easy. Sd/- (PRADEEP SINGH YERUR) LB JUDGE