SOMAKKA (DEAD) BY LRS versus K.P. BASAVARAJ (DEAD) BY LRS on 13 June 2022

1. The appellant is the own sister of the sole respondent. Theirfather Puttanna had inherited certain properties from his father whichwere ancestral properties and are described as item nos. 1 and 2 ofSchedule ‘A’ to the plaint, whereas property described at item no. 3 wasalleged to be self-acquired property of Puttanna on the basis of occupancyrights. In so far as the property described at Schedule ‘B’, it belonged tothe respondent which the appellant claimed to have purchased.

2. The appellant is the plaintiff in OS No. 2506 of 1991 institutedin the Court of the City Civil Judge, Bangalore, wherein the sole defendantis the respondent herein (brother of the appellant). Primarily, two reliefswere claimed in the said suit; firstly a partition and separate possessionof ¼ (one fourth) share in properties described at item nos. 1 and 2 and½(one half) share in the property described in item no. 3 of Schedule ‘A’

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Ato the plaint; the second relief prayed was for a decree of specificperformance of the agreement and sale dated 25.05.1981 with respectto the property described in Schedule ‘B’ to the plaint.

3. The claim set up by the appellant was that properties describedat item nos. 1 and 2 in Schedule ‘A’ were ancestral properties and,Btherefore, upon the death of her father in 1974, she would be entitled to¼ share and further that the property described as item no.3 of Schedule‘A’ was exclusively occupied by her father who had applied before therevenue authorities for being declared as an occupant and the same waspending at the time when her father died. Later on, it was continued tobe prosecuted by the respondent and it was ordered that his name beCrecorded as occupant as such she would be entitled to ½ share. Withrespect to the relief of specific performance of contract, it was allegedthat she had paid a sum of Rs. 12,000/- for purchasing 1 acre and 10guntas in Survey no. 60 situated on Dyavasandra Village, KrishnarajapuraHobli, Bangalore South Taluk and for which an agreement to sell datedD25.05.1981 was executed. The respondent had placed the appellant inpossession of the said property. Later on, he declined to execute the saledeed despite appellant being always ready and willing to perform herpart of the obligation to the agreement.

4. The respondent contested the suit, filed written statement andEdenied averments made in the plaint. According to the respondent hisfather had already spent substantial amount on the marriage of theappellant. She was also given jewellery worth Rs. 50,000/- and also anadditional sum of Rs. 8,000/-for establishing a stationary-cum-coffeeshop. Other averments made in the written statement were to the effectthat the appellant had access to the savings of her father and that sheFhad secretly utilized the savings of both her and her father’s in purchasingproperty in the name of her husband. In paragraph 15 of the writtenstatement, further details have been mentioned with regard to the propertyacquired by the appellant and also which is received from their father.

5. The respondent, however, admitted that the properties describedGat item nos. 1 and 2 of the Schedule ‘A’ were ancestral properties. It is,further, stated that the property described at item no. 3 of Schedule ‘A’of the plaint was jointly cultivated by him and his father and after thedeath of his father, he was exclusively cultivating the same and upon thecoming of the Mysore (Religious and Charitable) Inams Abolition Act,H

1955[1], he became entitled to occupancy rights and accordingly appliedfor it, which was granted. Further, the respondent denied the allegedagreement to sell and stated that it was a false and fabricated documentand he never received any consideration amount as alleged by theappellant. On such pleadings, it was prayed that the suit be dismissedwith exemplary costs.

6. Parties led evidence, both oral and documentary. The XIXAdditional City Civil Judge, Bangalore vide judgement and order dated02.09.2003 decreed the suit declaring that the appellant was entitled for¼ share in properties described as item nos. 1 and 2 and ½ share in itemno. 3. of Schedule ‘A’ and for separate possession by metes and bounds.It, further, directed the respondent to execute the sale deed in respect ofthe property described in Schedule ‘B’ of the plaint.

7. The respondent preferred an appeal under Section 96 of theCode of Civil Procedure, 1908[2] before the High Court of Karnatakaregistered as RFA No. 214 of 2004. Before the High Court, the counselfor the appellant, gave up the relief for specific performance. The HighCourt vide judgment and order dated 19.08.2006 upheld the ¼ share ofthe appellant in the property described at item nos. 1 and 2 of Schedule‘A’. However, it agreed with the contention of the respondent that theproperty described at item no. 3 of Schedule ‘A’ was jointly cultivatedby the defendant and his father, and therefore, upon death of his father,defendant would get ½ share of his own and the remaining ½ share ofhis father would be divided between his heirs i.e. ¼ to his daughter and¼ to his son. Thus, the appellant would be entitled for ¼ share in theproperty described at item no. 3 of Schedule ‘A’ and not ½ share asdecreed by the Trial Court. To this limited extent the decree of the TrialCourt was modified.

8. Aggrieved by the same, the appellant has filed the present appealwith respect to the reduction of her share from ½ to ¼ with respect tothe property described at item no. 3 of Schedule ‘A’. There is no appealby the respondent with respect to the ¼ share given to the appellant bythe Trial Court and affirmed by the High Court with respect to itemnos.1 and 2 of Schedule ‘A’ properties.

9. Heard learned counsel for the parties and perused the materialon record. It may be noticed that this Court, while issuing notice vide 1 In short “Inam Act”

2 In short “CPC”

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AOrder dated 30.07.2007 had confined it to the question of shares of theparties in Item No.3 of Schedule ‘A’ of the property.

10. The only issue thus which survives for our consideration andadjudication is whether the appellant is entitled to ½ share or ¼ share inthe property described at item no. 3 of Schedule ‘A’ property over whichBoccupancy rights under the Inam Act were claimed. Remaining claim ofthe appellant regarding ½ share in item nos. 1 and 2 of Schedule ‘A’ andSchedule ‘B’ properties stand closed at the stage of first appeal beforethe High Court.

11. The Trial Court framed six (6) issues, which read as follows:-C“1. Whether plaintiff proves that suit property are the joint familyproperty of herself and defendant?

2. Whether plaintiff proves that defendant executed an agreementin respect of ‘B’ Schedule property in favour of plaintiff on 25.05.81for a sale consideration of Rs.12,000/-?

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3. Whether suit is barred by limitation?

4. Whether suit is not properly valued and court fee paid isinsufficient?

5. Whether plaintiff is entitled for suit relief?E6. What order or decree?”

12. While dealing with issue no.1, the Trial Court records that,although, the defendant-respondent denied the right, title and interest ofthe appellant in item nos.1 and 2 of Schedule ‘A’ properties, but havingadmitted that his father Puttanna succeeded to item nos.1 and 2, andFthat they were ancestral properties, as such, the appellant would beentitled to ¼ (one fourth) share in item nos.1 and 2 of Schedule ‘A’properties. This finding has been confirmed by the High Court also inappeal and as there is no further appeal by the respondent with respectto item nos.1 and 2 of Schedule ‘A’ properties, the relief granted to theGappellant to that extent stands finalized and closed.

13. Now coming to item no. 3 of Schedule ‘A’ property, it was aDevadaya Inamathi Land. During life time of Puttanna, father of theparties, he was cultivating the same on the basis of Panchashala Guttaand on the coming of the Inam Act, Puttanna filed an application forHgrant of occupancy rights before the Special Deputy Commissioner, Inam Abolition, Bangalore. Later on, the said matter came up before the LandTribunal, Bangalore and during pendency of the said application, Puttannadied. Thereafter, the respondent came on record and he carried forwardthe application, filed by Puttanna for occupancy rights, which ultimatelycame to be granted in his favour.

14. The respondent had set up a specific claim that he wascultivating item no.3 of the Schedule ‘A’ property personally and healone had made the application for occupancy rights and the same beinggranted in his name, it became his self-acquired property.

15. The Trial Court discussed in detail the evidence led by theparties with regard to item no.3 of the Schedule ‘A’ property. It notedthat the appellant (P.W.-1) had stated that the said property was personallycultivated by the father of the parties namely, Puttanna, which was anagricultural land of the Devadaya Inamathi on the basis of a PanchashalaGutta. Puttanna had applied for grant of occupancy rights under theInam Act on 17.04.1971. However, while the matter was pending beforethe Karnataka Land Tribunal, Puttanna died. The respondent got himselfimpleaded as legal representative of late Puttanna and he was, thereafter,granted occupancy rights by the Land Tribunal. The Trial Court furthernoticed that occupancy rights were heritable in nature and it is for thisreason that after death of Puttanna, the respondent could get his namesubstituted and was also successful in obtaining the occupancy rights,but the fact remains that upon the death of Puttanna, the item no.3 ofSchedule ‘A’ property, being heritable in nature, would be inherited byboth his children i.e. the appellant and the respondent and under law,both of them would be entitled to ½ (half) share each. The said propertywould be deemed to be self-acquired property of Puttanna.

16. The Trial Court further considered Exts. P-2 to P-36, whichwere receipts of payment of Panchashala Gutta and the revenue byPuttanna i.e. to say that Puttanna was throughout cultivating item no.3of Schedule ‘A’ property on the basis of Panchashala Gutta. Ext. P-37was also relied upon by the Trial Court, which was a document of theRTC extract to show that the said land was recorded as Inam land andPuttanna was cultivating the same. Exts. P-2 to P-36 reveal that Puttannahad been cultivating the said land since 1955 continuously. Exts. P-38and P-39 were copies of the applications, filed by late Puttanna beforethe Special Deputy Commissioner, Inam Abolition, Bangalore. Exts. P-40 and P-41 were copies of the notices issued by the Revenue Authorities A

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Acalling upon him to appear for consideration of his applications for grantof occupancy rights. Further, Exts. P-42 and P-43 were copies of thestatements given by one G.K. Gurunath and the respondent before theLand Tribunal, Bangalore. Ext. P-44 is the statement of one Narasimhaiahand Ext. P-45 is the order of the Land Tribunal, Bangalore grantingoccupancy rights in favour of the respondent.B

17. The Trial Court further proceeded to consider the statementof the respondent, who entered the witness box as DW-1. He had set upa case that he was jointly cultivating item no.3 of the Schedule ‘A’ propertyalong with his father and, as such, after death of his father, he wasexclusively cultivating the said land. He also stated that he had appliedCfor grant of occupancy rights before the Special Deputy Commissionerand, as such, rights were granted in his name. He denied that appellantwas in joint possession of item no.3 of Schedule ‘A’ property. He claimedthe said property to be his self-acquired.

18. The Trial Court discussed the cross-examination of respondent

18. The Trial Court discussed the cross-examination of respondent D(DW-1) thread-bare. The Trial Court noticed the admission of therespondent (DW-1) from his cross-examination as follows:

“(i) Item No.3 of ‘A’ schedule property was given to Puttanna onbasis of Panchashala Gutta.

(ii) Puttanna during his life time was paying the revenue andEcultivating the said land.(iii) Respondent had applied as legal representative in theproceedings initiated by Puttanna for grant of occupancy rights.(iv) Before the Land Tribunal, respondent DW-1 has stated thathis father Puttanna was cultivating the said property and after hisFdeath, he is claiming occupancy rights being the legalrepresentative.”

19. The Trial Court further relied upon a statement of oneNarasimhaiah marked as Ext. P-44, given before the Land Tribunal,wherein he stated that he knew Puttanna, and that he was cultivatingthe said land.G

20. The Trial Court also noticed that even the order grantingoccupancy rights, passed by the Land Tribunal (Ext. P-45) clearlymentions that the respondent was claiming occupancy rights on basis ofthe fact that his father was cultivating the land and that after his death,he is entitled for occupancy rights being his legal heir and representative.H

21. On such material, the Trial Court came to the conclusion thatitem no.3 Schedule ‘A’ property was the acquisition of Puttanna himselfand that upon his death, it would be inherited in equal shares by his heirsbeing both his children, the appellant and the respondent.

22. On the above findings the Trial Court decreed the claim of theappellant to be having half share in item no.3 of Schedule ‘A’ propertyvide judgment dated 02.09.2003.

23. Respondent preferred an appeal before the High Court underSection 96 CPC registered as RFA No. 214 of 2004. Before the HighCourt, the appellant gave up her claim regarding specific of performancewith respect to Schedule ‘B’ property. The High Court vide judgmentdated 19.08.2006 confirmed the finding relating to ¼ share to the appellantwith respect to item nos.1 and 2 of Schedule ‘A’ properties. It, however,went on to modify the decree of the Trial Court relating to item no.3 ofSchedule ‘A’ property by reducing the share of appellant from ½ to ¼.

24. The High Court in a very cursory and cryptic manner, partlyallowed the first appeal. It did not consider the evidence considered bythe Trial Court. Neither did it deal with the statements or the otherdocumentary evidence on record and only on a bald statement of therespondent, which according to it, was mentioned in the order of theLand Tribunal that respondent was jointly cultivating the said land alongwith his father held that it became a joint family estate and, accordingly,reduced the share of the appellant to ¼ (one fourth) from 1/2 (one half).

25. The only discussion made by the High Court in the impugnedjudgment is reproduced hereunder:

“The contention of the defendant that the properties were givento plaintiff during the lifetime of her father. Therefore, not entitledto any share in the estate of her father by way of succession is anuntenable contention and not a triable defence. Whatever theproperties gifted to her during his lifetime constitute separateproperties of the plaintiff and such a gift/assignment does notdeprive the right of the plaintiff to seek share by way of successionafter the demise of the father. Item No.3 of ‘A’ schedule propertyis an agricultural land and it was Devadaya Inamathi land cultivatedby the father of the plaintiff. He had made an application in FormNo.1 for grant of occupancy rights. The defendant also made anapplication in Form No.7 for grant of occupancy rights in respect A

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Aof the same land. Ex.P-5 is the order of the Land Tribunal, inwhich, it categorically mentions that the defendant had made astatement before the Tribunal that the land was jointly cultivatedby himself and by his father. Therefore, it becomes a joint familyestate.

BIn that view, after the demise of the father, the defendant and hisfather are entitled to the notional share of 1-1/2 each and theplaintiff would be entitled to the 1/4th share in Item No.3 of ‘A’schedule property and not half share as claimed.”

26. Section 96 of the CPC provides for filing an appeal from originalCdecree. Further Order XLI Rule 31 of the CPC provides for the contentsof the judgment of the First Appellate Court. According to it, the judgementof the Appellate Court shall be in writing and would include the pointsfor determination, the decision thereon, the reasons for the decision andwhere the decree is reversed or varied, the relief to which the appellantis entitled. Section 96 and Order XLI Rule 31 of the CPC are reproducedDbelow:

“Section 96-Appeal from original decree.

(1) Save where otherwise expressly provided in the body of thisCode or by any other law for the time being in force, an appealEshall lie from every decree passed by any Court exercising originaljurisdiction to the Court authorized to hear appeals from thedecisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with theFconsent of parties.

(4) No appeal shall lie, except on a question of law, from a decreein any suit of the nature cognizable by Courts of Small Causes,when the amount or value of the subject-matter of the originalsuit does not exceed 2 [ten thousand rupees.]”

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Order XLI Rule 31

“Contents, date and signature of Judgment”

The Judgment of the Appellate Court shall be in writing and shallstate-(a) the points for determination;(b) the decision thereon;(c)Hthe reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant isentitled, and shall at the time that it is pronounced be signed anddated by the Judge or by the Judges concurring therein.”

27. It has been a matter of debate in a catena of decisions as towhat would be the scope, power and duty of the First Appellate Court indeciding an appeal under Section 96 CPC read with Order XLI Rule 31CPC. We briefly deal with the law on the point.

28. Learned Judge V.R. Krishna Iyer, J., [as he then was aJudge of the Kerala High Court] in 1969, while deciding the case betweenKurian Chacko vs. Varkey Ouseph[3], dealing with a similar judgmentof the First Appellate Court which had been disposed of by a brief order,observed as follows:

“…2. An appellate court is the final court of fact ordinarily andtherefore a litigant is entitled to a full and fair and independentconsideration of the evidence at the appellate stage. Anythingless than this is unjust to him and I have no doubt that in thepresent case the learned Subordinate Judge has fallen far short ofwhat is expected of him as an appellate court.”

29. Further following the above, there have been a series ofjudgments by this Court; 29.1 In Santosh Hazari vs. Purushottam Tiwari[4] (relevantportion of para 15) is reproduced below:

“15…The appellate court has jurisdiction to reverse or affirm thefindings of the Trial Court. First appeal is a valuable right of theparties and unless restricted by law, the whole case is thereinopen for rehearing both on questions of fact and law. The judgmentof the mind and record findings supported by reasons, on all theissues arising along with the contentions put forth, and pressed bythe parties for decision of the appellate court. …while reversing afinding of fact the appellate court must come into close quarterswith the reasoning assigned by the Trial Court and then assign itsown reasons for arriving at a different finding. This would satisfythe court hearing a further appeal that the first appellate courthad discharged the duty expected of it.”

3 AIR 1969 Ker 316

4 (2001) 3 SCC 179 para 15

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A29.2 In H.K.N. Swami vs. Irshad Basith[5], this Court againreiterated the same principle in paragraph 3 of the judgment:

“3. The first appeal has to be decided on facts as well as on law.In the first appeal parties have the right to be heard both onquestions of law all issues and decide the case by giving reasons.BUnfortunately, the High Court, in the present case has not recordedany finding either on facts or on law. Sitting as the first appellatecourt it was the duty of the High Court to deal with all the issuesand the evidence led by the parties before recording the findingregarding title.”

C29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar[6]considering the previous judgment recorded its view in paras 18 and 19which are reproduced hereunder:

“18. In our considered opinion, the High Court did not deal withany of the submissions urged by the appellant and/or the respondentDnor it took note of the grounds taken by the appellant in groundsof appeal nor made any attempt to appreciate the evidence adducedby the parties in the light of the settled legal principles and decidedcase law applicable to the issues arising in the case with a view tofind out as to whether the judgment of the Trial Court can besustained or not and if so, how, and if not, why.E19. Being the first appellate court, it was the duty of the HighCourt to have decided the first appeal keeping in view the scopeand powers conferred on it under Section 96 read with Order 41Rule 31 CPC mentioned above. It was unfortunately not done,thereby, resulting in causing prejudice to the appellant whoseFvaluable right to prosecute in the first appeal on facts and lawwas adversely affected which, in turn, deprived him of a hearingin the appeal in accordance with law. It is for this reason, weunable to uphold the impugned judgement of the High Court.”

29.4 Very recently, this Court in 2022 (to which one of us, BrotherGAbdul Nazeer, J. was a member) in Manjual and others vs.Shyamsundar and Others[7], reiterated the same view in para 8 thereof,which is reproduced hereunder:

5 (2005) 10 SCC 2436 (2015) 1 SCC 3917 (2022) 3 SCC 90H

“8. Section 96 of the Code of Civil Procedure, 1908 (for short,‘CPC’) provides for filing of an appeal from the decree passedby a court of original jurisdiction. Order 41 Rule 31 of the CPCprovides the guidelines to the appellate court for deciding theappeal. This rule mandates that the judgment of the appellate courtshall state (a) points for determination; (b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, therelief to which the appellant is entitled.

Thus, the appellate court has the jurisdiction to reverse or affirmthe findings of the Trial Court. It is settled law that an appeal is acontinuation of the original proceedings. The appellate court’sjurisdiction involves a rehearing of appeal on questions of law aswell as fact. The first appeal is a valuable right, and, at that stage,all questions of fact and law decided by the Trial Court are openfor re-consideration. The judgment of the appellate court must,therefore, reflect conscious application of mind and must recordthe court’s findings, supported by reasons for its decision in respectof all the issues, along with the contentions put forth and pressedby the parties. Needless to say, the first appellate court is requiredto comply with the requirements of Order 41 Rule 31 CPC andnon-observance of these requirements lead to infirmity in thejudgment.”

30. From the above settled legal principles on the duty, scope andpowers of the First Appellate Court, we are of the firm view and fullyconvinced that the High Court committed a serious error in neither formingthe points for determination nor considering the evidence on record, inparticular which had been relied upon by the Trial Court. The impugnedjudgment of the High Court is thus unsustainable in law and liable to beset aside.

31. The next question which arises is that where the judgment ofthe Appellate Court is being set aside on the ground of non-considerationof the evidence on record, the matter would normally be required to beremanded to the First Appellate Court, whether in the facts and A

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Acircumstances this case requires a remand. In the facts and circumstancesof the present case, we find that the suit was instituted in the year 1991,more than three decades ago; the evidence discussed by the Trial Courtis neither disputed nor demolished by the learned Counsel for therespondent. As such, we do not find any good reason to remand thematter to the High Court. We are of the view that in order to put aBquietus to the litigation and relieve the parties from any further harassment,we set aside the judgment of the High Court and confirm the judgmentand decree of the Trial Court to the extent it relates to item no. 3 ofSchedule ‘A’ property described in the plaint, i.e. to say that the appellantand the respondent would be entitled to ½ share each in the said property.CThe Trial Court shall accordingly proceed to draw out the proceedingsfor final decree of partition.

32. The appeal is accordingly allowed. There shall be no order asto costs.

DDivya Pandey(Assisted by : Rakhi, LCRA)

Appeal allowed.

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