Chikkaiah and Others vs Gowramma and Others

A.V. Chandrashekara, J.—Concurrent findings are called in question before this court by filing appeal under Section 100, C.P.C. Plaintiffs of on original suit in O.S. 481/89 which was pending on the file of Civil Judge (Junior Divn.), Maddur, are the appellants. Respondents are defendants in the said suit.

During the pendency of the suit, the 1st defendant-Chikkaningamma died and her daughters were brought on record as defendants 2 to 5. The suit was filed for the relief of partition and separate possession in respect of 4 items of agricultural land. The said suit came to be dismissed against which a regular appeal in R.A. 1/00 was filed under Section 96, C.P.C. before the Civil Judge (Senior Divn.), Maddur. The said appeal has also been dismissed by confirming the judgment of the lower court. Hence this appeal is filed by the plaintiffs under Section 100, C.P.C.

The appeal has been admitted to consider the following substantial question of law framed on 12.1.2012:

"1) Whether the appellate court was right in dismissing the appeal without considering the documentary evidence produced by the appellant on record and more particularly Exs. P-9, P-10 and P-11 independently?

2) Whether in the first appeal, the appellate court is obliged to consider and re-appreciate the evidence independently?"

Heard the learned counsel for the appellants. All the respondents are duly served and only respondent No. 2 is represented by an advocate and he is absent.

The facts leading to the filing of the suit before the trial court in O.S. 481/89 are as follows:

"a) One Thoti Gooli Siddaiah) was the propositus. According to the plaintiff he had 3 sons, viz., Chowdaiah, Siddaiah and Goolaiah. Goolaiah died unmarried. The first son-Chowdaiah, according to the plaintiffs, had only one son-Chowdaiah and Kempamma was the wife of Chowdaiah, son of Chowdaiah. Both Chowdaiah and his son Chowdaiah are no more. Kempamma, wife of deceased Chowdaiah is the 1st plaintiff and her 2 sons, Chikkaiah and Jayaraju are plaintiffs 2 and 3.

b) According to the plaintiffs, the 2nd son of Thoti Gooli Siddaiah had a son named K. Siddaiah and the name of the wife of K. Siddaiah was Chikkaningamma, and she is the 1st defendant. Defendants 2 to 5 are the sons of Chikkaningamma and deceased K. Sidddiah. According to the plaintiffs, all the suit schedule properties were Thoti service Inam lands attached to the inferior village office of ''Thoti of Kadukothanahalli village, Maddur Taluk and they were being looked after by the propositus, Thoti Gooli Siddaiah.

c) According to the plaintiffs, after the death of Thoti Gooli Siddaiah, his surviving 2 sons were looking after the lands and rendering service as Thotis. K. Sidaiah being the elder son, chose to file an application seeking re-grant of the lands and accordingly the authorities under the Karnataka Village Offices Abolition Act, 1961, chose to grant the schedule lands in favour of K. Siddaiah. The said grant, according to the plaintiffs has enured to the benefit of the plaintiffs who are members of the joint family consisting of themselves, defendants and K. Siddaiah. They are said to be in joint and constructive possession of the suit schedule properties and are entitled to half share. Since the defendants did non give their half share, plaintiffs were forced to file the suit for partition and separate possession.

d) Defendants have emphatically denied all material averments in the plaint and have called upon the plaintiffs to strictly prove the same. It is their case that Thoti Gooli Siddaiah had only 2 sons, Siddaiah and Goolaiayh and that he had no son by name Chowdaiah. Therefore it is alleged that plaintiffs are not the members of the joint family of deceased Thoti Gooli Siddaiah. It is further averred that the 2nd son of Gooli Siddaiah had married a lady and after his death, his wife is stated to have taken a second husband as per Kudavali custom.

e) It is further averred that K. Siddaiah had applied for re-grant of 4 items of properties in his individual capacity and not on behalf of the plaintiffs. With these pleadings, the defendants had requested the trial court to dismiss the suit.

f) On the basis of the above pleadings, the following issues were framed by the trial court:

"1. Whether the plaintiff proves that the deceased Chowdaiah and deceased K. Siddaiah were members of the joint family?

Whether plaintiff further proves that the suit schedule properties are ancestral properties?

Whether plaintiffs are entitled to 1/2 share in the suit schedule property?

Whether plaintiff are entitled for same profits?

What order or decree?"

Jayaraju-3rd plaintiff is examined as P.W. 1 and 2 witnesses are examined on his behalf. 11 exhibits have been got marked on behalf of the plaintiffs. Deviprasad, son of K. Siddaiah who is the 3rd defendant, is examined as D.W. 1 and 4 witnesses are examined on his behalf. As many as 36 exhibits have been got marked on behalf of the defendants.

g) Ultimately the trial court has answered issue Nos. 1, 3, 4 in the negative and issue No. 2 in favour of the defendants, holding that the schedule properties are ancestral properties of the defendants and plaintiffs have no connection with the lands in question. Accordingly the suit came to be dismissed, as against which an appeal under Section 96, C.P.C. was filed by the plaintiffs in R.A. 1/00. After perusing the grounds raised in the appeal memo and hearing the arguments on both sides, the learned judge of the first appellate court has chosen to dismiss the said appeal by formulating the following four points for consideration, as found in paragraph 9 of the judgment:

1) Whether plaintiffs prove that their grand father Chowdiah was son of Thoti Gooli Siddaiah or not?

2) Whether plaintiffs are entitled for share in the suit properties?

3) Whether judgment and decree passed by the Trial Court is capricious and calls for interference?

4) What Order?

h) Hence the plaintiffs are aggrieved by the concurrent findings.

REASONS

Substantial question of law Nos. 1 and 2:

"Normally the second appellate court will not interfere with the concurrent findings of the courts below unless the evidence placed on record is wholly misinterpreted or law has been misapplied to proved facts. Normally the second appellate court will be slow in interfering with concurrent factual findings. What is argued before this court by the learned counsel for the appellants is that the trial court and the first appellate court have not properly analyzed Exs. P9, P10 and P11 which are material documents having a great bearing on the stand taken by the plaintiffs. It is argued that the trial court and the first appellate court could not have rejected Ex. P9-voter''s list issued by the Tahsildar, Malavalli Taluk, on 28.1.1989 in which the name of deceased Thoti Gooli Siddaiah and his son, K. Siddaiah and that of his wife, Chikkaningamma found a place. The son of K. Siddaiah is mentioned as S. Rudrappa."

It is true that the son of Chikkaningamma is shown as one of the members living along with K. Siddaiah and his wife during the year 1970. The genological tree furnished before the trial court does not disclose the name of the father of 2nd plaintiff as Budguppa Chowdaiah. To a specific suggestion put to P.W. 1-Jayaraju that his family was called as Budguppa Chowdaiah family, he has answered in the negative. On the other hand, P.W. 1 has asserted that he was Jayaraju, son of Chowdaiah and not son of Budaguppa Chowdaiah If the assertion of P.W. 1 as found in the cross-examination is accepted, incorporation of the name of Chikkaiah as the son of Budguppa Chowdaiah in Ex. P-9 (voter''s list) does not have any credence at all. Even otherwise, voter''s list will have a very limited probative value, unless it is made out that the person against whom it is sought to be enforced was the author of the same or had given instructions.

Even otherwise if somebody were to reside with a family unconnected to him for quite some time, no presumption would arise that such person was a member of that family. In the light of denial of the suggestion put to PW-1 in paragraph 5 of his deposition on 22.2.1994 and in the light of other circumstances, the trial court and the first appellate court are absolutely justified in not attaching much credence to Ex. P-9.

Learned counsel for the appellants has vehemently relied on Ex. P-10, mahazar drawn by the then jurisdictional revenue inspector on 25.10.1990. It is a certified copy stated to have been issued to the plaintiff on 19.11.1990. On a plain reading of the contents of Ex. P-10, it appears that deceased K. Siddaiah had made a statement before the revenue authorities that plaintiffs were members of a joint family consisting of himself and other plaintiffs and that they had half share in the schedule property. No steps have been taken to summon the original of Ex. P-10. Whether the signature purported to be found on it was that of K. Siddaiah should have been established to the hilt; but no such attempt is made. The purpose for which the said mahazar was drawn and whether statements were actually recorded, are not forthcoming. Therefore the trial court and the first appellate court have not attached much significance to it.

Learned counsel for the appellants have heavily relied on Ex. P-11, post card said to have been written by the 3rd defendant-Deviprasad to the 2nd plaintiff on 17.7.1970 to contend that it would conclusively establish the existence of joint family between the plaintiffs and defendants. Both the courts have not attached much importance to this document and have ignored it on the ground that such letter was written out of respect and it does not convey in any manner about the existence of joint family inclusive of the plaintiffs and their share in the suit schedule properties. On the other hand, the trial court and the first appellate court have considered the documents produced by the defendants.

Ex. D-13 is an order passed by the concerned Tahsildar in HQA.CR.34/1979-80 granting all the schedule lands in favour of deceased K. Siddaiah under Section 5 of the Karnataka Village Offices Abolition Act, 1961. Ex. D-14 is another order dated 11.7.1986 on the basis of service records of K. Siddaiah relating to rendering inferior village services as Thoti, reiterating the grant made earlier in HYPERLINK "http://HQA.CR.34/"1979-80. The claim of the plaintiffs is that after the death of their father, deceased Siddaiah was looking after the family. There was no occasion for him to act on behalf of the family before their father''s death as he was junior to Chowdaiah. As rightly pointed out by the trial court and the first appellate court, it is not the case of the plaintiffs that their father was not well versed and that Siddaiah though junior, was looking after the family. Therefore conduct will have to be taken into consideration relating to their dealings at the disputed point of time. Except Exs. P-9 and P-11, there is no other acceptable evidence placed on record by the plaintiffs to show that there was joint family relationship between them and the defendants.

Even otherwise, the 3rd plaintiff in his cross-examination has admitted that his father has solemnized the marriage of plaintiffs 2 and 3 and the wedding cards were printed in his name. If really Siddaiah was managing the family, the wedding cards would have been in the name of the eldest member of the family in the natural course. As rightly pointed out by the trial court, it is not so in the present case. The evidence of PW-1 and PW-2 does not indicate that there was any relationship between them and the defendants by conduct.

The learned judge of the trial court as well as first appellate court have not attached much significance o the evidence of PW-2 and PW-3 since it does not come within Section 50 of the Evidence Act which speaks about relationship. Per contra, D.W. -2, Eraiah,, D.W. -3, Chikkanna, D.W. -4, Puttamadaiah and D.W. -5, Doddamadegowda have specifically deposed that the name of the father of the plaintiff was Budguppa Chowdaiah from Budiguppa family and had settled at Kadukothanahalli village, and that they had never done any Thoti service. D.W. -2 who was 82 years old when his evidence was recorded, has further deposed that the grandfather of PW-1 died 75 years ago.

The trial court as well as first appellate court have properly analyzed the oral and documentary evidence in right perspective keeping in mind the inability of the plaintiffs to discharge the initial burden cast upon them, effectively. Both the courts have tested the oral and documentary evidence on the touchstone of intrinsic probabilities. The first appellate court has properly re-appreciated the evidence independently. As per the principles enunciated in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 , If the appellate court wants to uphold a well considered judgment of the trial court, it need not elaborately discuss the facts of the case and it would be sufficient if it concurs with the main findings of the trial court with proper reasons.

In the instant case, the appellate court has considered all the important aspects in right perspective. Thus both the substantial questions of law are answered in the affirmative, holding that the first appellate court has re-appreciated the evidence independently in right perspective. Accordingly there are no merits to interfere with the well considered finding.

No other substantial question of law arises for consideration in the appeal. Accordingly the appeal is dismissed with no order as to costs.