JUDGMENT
1. The present second appeal has been filed by the appellant-plaintiff against the respondent-defendant challenging the judgment and decree dated 5-12-1990 passed by the Civil Judge, Chickaballapur, in R.A. No. 26 of 1990, dismissing the appeal and modifying the judgment and decree dated 26-6-1990 passed by the Munsiff, Bagepalli, in Original Suit No. 13 of 1987.
2. The appellant-plaintiff filed the suit against the respondent-defend ant praying for declaration that the plaintiff was entitled to the entire suit property measuring about 8 acres (there is a little discrepancy regarding the extent of the suit property, but there is no dispute regarding the identity of the suit schedule property). The plaintiff further prayed for permanent injunction to restrain the defendant from interfering with plaintiffs peaceful possession of the suit property. The learned Munsiff partly decreed the suit regarding declaration (about half the suit property measuring 4 acres 6 guntas). The learned Munsiff dismissed the suit in respect of the prayer of permanent injunction made by the plaintiff.
3. Aggrieved by the above partial decree granted to the plaintiff, the plaintiff preferred appeal before the Civil Judge which, as I have already stated, was dismissed by the Civil Judge, modifying the judgment and decree passed by the Trial
Court.
4. The plaintiff has preferred the present second appeal under Section 100 of the Civil Procedure Code.
5. The plaintiffs case in brief is as follows.-
The plaintiff is the owner in possession and enjoyment of the suit property, being his ancestral property. The plaintiff’s father
Middi Siddappa and Middi Marappa are the sons of Middi Venkataramanna. After the death of plaintiffs grand-father Middi Venkataramanna, the plaintiffs father Middi Siddappa and his elder brother Middi Marappa succeeded to the suit property. Middi Venkataramappa is the son of Middi Marappa. This Middi Venkataramappa, son of Middi Marappa, executed a registered release deed dated 15-10-1986 in favour of the plaintiff for a consideration of Rs. 3,500/- relinquishing his half share in the suit land in favour of the plaintiff. The plaintiff has thus become the absolute owner of the entire suit property. The defendant, without any manner of right, is trying to disturb the plaintiff’s peaceful possession and enjoyment. Hence the suit for declaration and permanent injunction.
6. In the written statement the defence set up by the defendant is.-
It is not true that the plaintiff is the owner of the suit property and has been in possession of the suit property. Middi Venkataramanna had another brother by name Guddi Errappa. The father of these two brothers is one Nallappanna. These two brothers viz., Middi Venkataramanna and Guddi Errappa, sons of Nallappanna, partitioned the suit property and each got half share in the suit property. Said Guddi Errappa adopted Bodi Byappa as his son. Guddi Errappa died leaving behind him his adopted son Bodi Byappa, who succeeded to half the suit property. Bodi Byappa, who was adopted by Guddi Errappa, is the father of the respondent-defendant. Said Bodi Byappa was in possession and enjoyment of the half share in the suit property. Bodi Byappa died leaving behind him the respondent-defendant Bodi Ramappa, Errappa and Maddanna. The defendant’s brother Maddanna died subsequently. At present the defendant Bodi Ramappa and his brother Errappa (not the son of Nallappanna) have been in possession of the half of the suit property.
Middi Venkataramappa, son of Middi Marappa, sold 1 acre 2 guntas of land in favour of one Venkataramappa, a stranger to the family, by registered sale deed dated 8-1-1976. This Venkataramappa conveyed the remaining portion out of half share in the suit property in favour of the plaintiff. The plaintiff is therefore at present the owner in possession and enjoyment of only 3 acres 4 guntas out of the suit land. At no point of time the
plaintiff was in possession and enjoyment of the entire suit property. The plaintiffs suit has to be dismissed.
7. The appellant-plaintiff presumably deliberately has not given the complete pedigree. The complete pedigree is.-
Nallappanna
______________________________________________________________
| |
Middi Venkataramanna Guddi Errappa
| |
______________________ Bodi Byappa
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Middi Middi |
Siddappa Marappa ______________________________
| | |
| | Bodi Errappa Maddanna
Middi Middi Ramappa (dead)
Kondappa Venkataramappa (deft.)
(plaintiff)
8. This Court has framed three substantial questions of law at the time of admission. They are:
(a) Whether the Courts below were justified in rejecting the claim of the plaintiff-appellant in the absence of any issue on the question of adoption of defendant-respondent by Erappa and consequently no proof with regard to his title to half of the suit property?
(b) Whether the alleged admission of the plaintiff in Original Suit No. 60 of 1979 could not have been acted upon by reference only to the written statement and in the absence of any independent evidence on it?
(c) Whether the I Appellate Court was justified in reducing the extent of the property by 1 acre 5 guntas against the decree given by the Trial Court?
9. The plaintiff claims title through Middi Venkataramanna. The father of this Middi Venkataramanna is Nallappanna. This Nallappanna had another son by name Guddi Errappa. It is very significant to note that the plaintiff has not mentioned in the plaint Nallappanna and his another son Guddi Errappa while tracing the genealogy.
10. This Guddi Errappa and plaintiffs grand father Middi Venkataramanna are brothers. The omission on the part of the plaintiff to trace his genealogy to Nallappanna cannot lost sight of. It shows lack of bona fides in the claim of the plaintiff.
11. According to the case of the respondent-defendant, Bodi Byappa is the adopted son of Guddi Errappa. The respondent-defendant is the son of this Bodi Byappa.
12. Substantial question of law (a) framed by this Court at the time of admission says, “adoption of defendant-respondent by Erappa”. This is clearly wrong. No effort has been made to get the mistake in substantial question of law (a) corrected. The case of the respondent-defendant is that he is the son of Bodi Byappa who was adopted by Guddi Errappa. So I recast substantial question of law (a) as:
“Whether the Courts below were justified in rejecting the claim of the plaintiff-appellant in the absence of any issue on the question of adoption of defendant’s father Bodi Byappa by Errappa and consequently no proof with regard to his title to half of the suit property?”
13. Now I proceed to answer the three substantial questions of law framed by this Court.
14. The defendant has pleaded the adoption mentioned above viz., adoption of his father Bodi Byappa by Guddi Errappa. As I have already stated, this Guddi Errappa is the brother of Middi Venkataramanna and this Middi Venkataramanna is the grand father of the appellant-plaintiff.
15. It is argued by the learned Counsel for the appellant-plaintiff that there was no issue regarding the adoption of defendant’s father by Guddi Errappa and consequently there was no proof with regard to the title of the defendant to half share in the suit property and therefore the plaintiff is entitled to the entire suit property, not merely half.
16. The fact that no issue was famed regarding adoption need not detain this Court for long.
17. When the parties go to trial, each party knowing fully the case of the other, and led all evidence. …. it cannot be said that the absence of an issue was fatal to the case. Nedunuri Kameswaramma v Sampati Subba Rao. There is another reason why the argument advanced on behalf of the appellant-plaintiff regarding non-framing, of an issue cannot be given any weight. In the appeal filed by the present appellant-plaintiff before the First Appellate Court (Regular Appeal), the appellant-plaintiff has not taken up such a
contention. The High Court cannot permit a plea not raised before the First Appellate Court — Krishnapasuba Rao v Dattatraya Krishnaji .
17-A. For the aforesaid reasons I hold that the substantial question of law (a) framed by this Court does not arise for consideration.
17-B. Ex. D-1 is the certified copy of the written statement filed by the present appellant-plaintiff, who was the second defendant in Original Suit No. 60 of 1979 on the file of the Munsiff, Bagepalli. This suit Original Suit No. 60 of 1979 was filed by one Venkatarama against the appellant-plaintiff herein and two others. In this suit Original Suit No. 60 of 1979, plaintiffs brother Gangappa was also a defendant. In Ex. D-l the present appellant-plaintiff and his brother have admitted that respondent-defendant Bodi Ramappa had half share in the suit property. This admission knocks the bottom out of the appellant-plaintiff’s case.
18. It is argued by the learned Counsel for the appellant-plaintiff that what is stated in the written statement (Ex. D-l) could not have been used as an admission by the Courts below without any plea. This argument has no force and I reject it accordingly. Moreover this ground has not been taken up in the grounds of appeal before this Court. It has been laid down by the Supreme Court, while interpreting the provisions of Section 100, Civil Procedure Code, that the High Court should be satisfied that the case involves a substantial question of law and not a mere question of law — Kshitish Chandra Purkait v Santosh Kumar Purkait.
19. For the aforesaid reasons I hold substantial question of law (b) against the appellant-plaintiff.
20. The First Appellate Court has given weighty reasons in paragraphs 17 and 18 of its judgment that the plaintiff got 1 acre 1 gunta under Ex. P-l, registered release deed executed by Venkataramappa in favour of the plaintiff. The First Appellate Court has further noticed that the plaintiff with his brother was the owner of 2 acres 3 guntas in the suit land and further the plaintiff got 1 acre 1 gunta under the registered release deed Ex. P-l. The First Appellate Court has therefore come to the conclusion that the appellant-plaintiff had thus become the
owner of 3 acres 4 guntas of land in the entire suit land and therefore has rightly modified the decree.
21. The conclusion reached by the First Appellate Court in reducing the extent of the property by 1 acre 5 guntas against the decree given by the Trial Court is correct. The conclusion reached, by the First Appellate Court is based on evidence and the documents. This finding is binding on this Court. I hold substantial question of law (c) in the affirmative, against the appellant-plaintiff.
22. For the aforesaid reasons this second appeal under Section 100, Civil Procedure Code has to be dismissed.
23. The learned Counsel for the appellant-plaintiff showed some discrepancies in the evidence adduced by the respondent-defendant. The learned Counsel for the respondent-defendant showed some discrepancies in the plaintiffs case and the evidence adduced by the plaintiff. The Supreme Court has been pleased to deprecate the practice of some judges of the High Courts disposing of second appeals as if they were first appeals — Deity Pattabhiramaswamy v S. Hanymayya.
24. Now I will distinguish some of the authorities relied on by the learned counsel for the appellant-plaintiff.
He relied on Laxmibai v Kashibai. This was a suit for injunction and the issue framed was not in accordance with law. In the instant case the suit is for declaration and injunction.
The learned Counsel relied on S. Venkappa Devadiga v Rangu S. Devadiga. This authority has been rendered under Section 107, Civil Procedure Code dealing with the powers of the Appellate Court. At present, we are concerned with Section 100, Civil Procedure Code, second appeal.
In Juggilal Kamlapat v Pratapmal Rameshwar, provisions of the Sale of Goods Act were concerned.
In the case of Hiralal v Gajjan, the First Appellate Court chucked out lock, stock and barrel legally admissible evidence as inadmissible. That is not the position in the present case.
Madhusudan Das v Smt. Narayani Bai, deals with the essential requisites of adoption when the validity of adoption is involved.
Panchdeo Narain Srivastava v Kumari Jyoti Sahay, has been rendered under Section 115, Civil Procedure Code while considering the amendment under Order 6, Rule 17, Civil Procedure Code. That has no application in the present case.
Reliance was also placed on Smt. Chander Kali Bai v Jagdish Singh Thakur. In this authority under the Rent Control and Eviction Act, the defendant did not deny the plaintiffs averment and Supreme Court, therefore, held that the belated plea that the business was not the business of the plaintiff but that of the joint family of the plaintiff could not be raised for the first time in the Supreme Court. I am of the opinion that this authority also is not applicable to the facts of the present case.
25. The appellant-plaintiff, to put it provocatively, wants to thrive on litigation. The fact that he is caught in the cobwebs of law is not a matter of regret.
26. In the result this second appeal is dismissed. Each party to bear his own costs in this Court.
