Maruthi vs Irappa and Others

A.N. Venugopal Gowda, J.—This is plaintiff''s second appeal. O.S. No. 30/1993 filed in the court of Principal Civil Judge (Jr. Dn.), Chincholi, for partition and separate possession of half share in the plaint schedule properties, on the ground that the plaintiff, defendant Nos. 1, 5 and 6 are the sons and daughters of Basappa Kusanoor and defendant Nos. 2 to 4 are the sons of defendant No. 1, was dismissed on 07.09.2004. R.A. No. 30/2006 was filed in the court of Civil Judge (Sr. Dn.), Chincholi, assailing the said decree, having been dismissed by a judgment/decree dated 28.03.2008, this second appeal was filed.

Suit was instituted on 09.02.1993. Defendant Nos. 1 to 4 filed written statement denying the claim of the plaintiff, that there was marriage between Basappa Kusanoor and Revamma and that the plaintiff was born out of the said wed lock. Suit was contested by defendant Nos. 1 to 5 on multiple grounds. Defendant No. 6 filed consenting written statement, to decree the suit. With reference to the material pleadings, Trial Judge raised the following issues:

"1) Whether the plaintiff proves that he is the son of deceased Basappa Kusanoor as such he is joint owner of suit land?

2) Whether the plaintiff proves that he is entitled to half share in the suit properties?

3) Whether the defendants prove that the suit is bad for nonjoinder of proper and necessary parties to the suit?

4) Whether the defendants are entitled to compensatory costs of Rs. 2500/-?

5) Whether the defendants prove that this court has no pecuniary jurisdiction to try the suit?

6) What reliefs the parties are entitled to?

7) What Order or Decree?"

Plaintiff got himself examined as P.W. 1 and examined two witnesses in proof of his case and marked Exs. P-1 to P-14. Defendant No. 1 got himself examined as D.W. 1 and examined D.Ws. 2 to 4 in proof of his defence and marked Exs. D-1 to D-6. After appreciating the evidence, Trial Judge answered issue Nos. 1, 2, 4 and 5 in the negative and issue No. 3 as not surviving for consideration and as a consequence dismissed the suit.

An appeal, under Section 96 CPC having been filed by the unsuccessful plaintiff, considering the record of the suit and the rival contentions, following points were raised for consideration by the learned Appellate Judge:

"1) Whether appellant/plaintiff proves that, he is the son of Basappa Kusanoor through second wife and entitled for half share in the property?

2) Whether appellant proves that the judgment and decree passed by trial court is erroneous and call for interference?

3) What order?"

Both the contentions were answered in the negative and as a consequence, the appeal was dismissed.

Sri Venkatesh G., learned advocate for the appellant contended that the courts below have erred in holding that the plaintiff has failed to prove that he is the son of Basappa Kusanoor. He submitted that Ex. P-8/Voters list, Ex. P-9/Transfer certificate, Ex. P-10/Death certificate of the mother of the plaintiff and Ex. P-12/Bank passbook have not been correctly appreciated. Learned counsel contended that the defendants having failed to prove the date of birth of the plaintiff and that he is the son of Basappa Chakka and that the dismissal of the suit and the appeal being illegal, substantial questions have arisen for considerations in this appeal.

Sri Ashok S. Kinagi, learned advocate appearing for respondent Nos. 1 to 4, on the other hand contended that the plaintiff having failed to prove his relationship as son of Basappa Kusanoor, the courts below are justified in negativing his claim for partition and separate possession of the suit properties. Learned counsel submitted that the findings recorded by the courts below being pure finding of fact and the same having not given raise to any substantial question of law, the second appeal filed under Section 100 CPC is not maintainable. Learned counsel sought rejection of the appeal with costs.

Keeping in view the record of the case and the rival contentions, point for consideration is, whether the plaintiff-appellant has established his relationship, as stated in the plaint and is entitled to claim partition and separate possession of the suit properties?

Issue Nos. 1 and 2 raised by the Trial Judge is with regard to the claim of the plaintiff as the son of deceased Basappa Kusanoor and about his entitlement to half share in the suit properties. Ex. P-9, relied upon by the plaintiff to prove his relationship with Basappa Kusanoor, was not accepted by the Trial Judge, on the ground, that in column No. 6, father''s name has not been sufficiently indicated, in that, it reads as ''Basappa'' and not ''Basappa Kusanoor''. Ex. P-10 - Death certificate of Smt. Revamma was not accepted, on the ground, that husband''s name has been shown as ''Basappa'' and apart from that it was prepared on the basis of information given by the plaintiff/P.W. 1 and that it is nothing but a creation of evidence by the plaintiff. Exs. P-12 and P-13 were not accepted, in view of the admission of the plaintiff/P.W. 1, that the information was furnished by him to make the entries in Exs. P-12 and P-13 and that Ex. P-13 has also come into existence during the pendency of the suit.

Before the Trial Judge, reliance was placed on Exs. P-8 to P-14 to establish the fact that the plaintiff is the son of Basappa Kusanoor. In para 27 of the judgment passed by the Trial Judge, there is detailed consideration with regard to the said documents, noticed supra.

The learned Appellate Judge having found the admission of P.W. 1 with regard to marriage of his mother -Revamma, earlier with one person of Bucchanahalli Village, and there being lack of pleading with regard to her said marriage and its status and finding that Ex. P-9 shows the name of the father as Basappa and not Basappa Kusanoor nor Basappa Chakka and that Ex. P-10 also shows the name of the husband of Revamma as Basappa and not Basappa Kusanoor and finding the admission of P.W. 1 that Exs. P-12 and P-13 were prepared on the information given by the plaintiff, the said documents were not accepted in proof of relationship of the plaintiff with deceased Basappa Kusanoor.

The question of relationship and the dispute on the correctness of the pedigree produced by the plaintiff is essentially a question of fact. The Trial Court and the Appellate Court have thoroughly gone into the evidence of the parties, both oral and documentary and have held that the plaintiff has failed to prove that he is the son of Basappa Kusanoor.

Learned advocate for the appellant was unable to point out any material evidence having been omitted from consideration nor any misreading of the evidence. The finding which have been recorded by the courts below are pure finding of fact. In the absence of any perverse finding, it is not open for this Court to re-appreciate the evidence, in exercise of the power under Section 100 CPC.

Both the courts below have lucidly answered the issues/points raised for consideration. Since no substantial question of law has arisen for consideration and the findings in the impugned judgments was not shown to be perverse, this second appeal filed under Section 100 CPC cannot be entertained.

Hence, the appeal is rejected.