SOMAKKA (DEAD) BY LRS versus K.P. BASAVARAJ (DEAD) BY LRS
[2022] 17 S.C.R. 668, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SOMAKKA (DEAD) BY LRS.
v.
K.P. BASAVARAJ (DEAD) BY LRS.
(Civil Appeal No (S). 1117 of 2009)
JUNE 13, 2022
[S. ABDUL NAZEER AND VIKRAM NATH, JJ.]
Code of Civil Procedure 1908 – s.96 – Or.XLI r.31 – Appellant
and respondent are brother and sister – Suit filed by appellant against
the respondent inter alia claiming partition and separate possession
of one fourth share in properties described as item nos. 1 and 2
(ancestral properties) and one half share in the properties described
in item no. 3 of Schedule ‘A’ to the plaint, alleged to be self-acquired
property of their father on the basis of occupancy rights – Suit
decreed by Trial Court – Respondent filed appeal, High Court held
that the appellant was entitled to one fourth share instead of one
half share in the property described at item no. 3 of Schedule ‘A’,
decree was modified to this extent – Correctness of – Held: High
Court in a very cursory and cryptic manner, partly allowed the first
appeal – It did not consider the evidence considered by the Trial
Court – Neither did it deal with the statements or the other
documentary evidence on record and only on a bald statement of
the respondent that he was jointly cultivating the land along with
his father held that it became a joint family estate and, accordingly,
reduced the share of the appellant to one fourth from one half –
High Court committed serious error in neither forming the
points
for determination nor considering the evidence on record, in
particular which had been relied upon by the Trial Court – Further,
on facts there is no reason to remand the matter to the High Court –
Impugned judgment set aside – Judgment and decree of the Trial
Court is confirmed to the extent it relates to item no.3 of Schedule
‘A’ property described in the plaint – Thus, the appellant and
respondent would be entitled to one half share each in the said
property.
Code of Civil Procedure 1908 – s.96 – Or.XLI r.31 – Scope,
power and duty of the First Appellate Court – Discussed.
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Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC
179 : [2001] 1 SCR 948; H.K.N. Swami v. Irshad Basith,
(2005) 10 SCC 243; Vinod Kumar v. Gangadhar (2015)
1 SCC 391 : [2014] 10 SCR 1050; Manjual and others
v. Shyamsundar and Others (2022) 3 SCC 90 – relied
on.
Kurian Chacko v. Varkey Ouseph AIR 1969 Ker 316 –
approved.
Case Law Reference
[2001] 1 SCR 948
relied on
Para 29.1
[2014] 10 SCR 1050
relied on
Para 29.3
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1117 of
2009.
From the Judgment and Order dated 19.08.2006 of the High Court
of Karnataka at Bangalore in R.F.A. No.214 of 2004.
Naveen R. Nath, Ms. Saumya Tandon, Ms. Hetu Arora Sethi,
Advs. for the Appellants.
G. V. Chandrashekar, Sr. Adv., N. K. Verma, Ms. Apeksha D.,
Ms. Anjana Chandrashekar, Advs. for the Respondents.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
1. The appellant is the own sister of the sole respondent. Their
father Puttanna had inherited certain properties from his father which
were ancestral properties and are described as item nos. 1 and 2 of
Schedule ‘A’ to the plaint, whereas property described at item no. 3 was
alleged to be self-acquired property of Puttanna on the basis of occupancy
rights. In so far as the property described at Schedule ‘B’, it belonged to
the respondent which the appellant claimed to have purchased.
2. The appellant is the plaintiff in OS No. 2506 of 1991 instituted
in the Court of the City Civil Judge, Bangalore, wherein the sole
defendant
is the respondent herein (brother of the appellant). Primarily, two reliefs
were claimed in the said suit; firstly a partition and separate possession
of ¼ (one fourth) share in properties described at item nos. 1 and 2 and
½(one half) share in the property described in item no. 3 of Schedule ‘A’
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to the plaint; the second relief prayed was for a decree of specific
performance of the agreement and sale dated 25.05.1981 with respect
to the property described in Schedule ‘B’ to the plaint.
3. The claim set up by the appellant was that properties described
at item nos. 1 and 2 in Schedule ‘A’ were ancestral properties and,
therefore, upon the death of her father in 1974, she would be entitled to
¼ share and further that the property described as item no.3 of Schedule
‘A’ was exclusively occupied by her father who had applied before the
revenue authorities for being declared as an occupant and the same was
pending at the time when her father died. Later on, it was continued to
be prosecuted by the respondent and it was ordered that his name be
recorded as occupant as such she would be entitled to ½ share. With
respect to the relief of specific performance of contract, it was alleged
that she had paid a sum of Rs. 12,000/- for purchasing 1 acre and 10
guntas in Survey no. 60 situated on Dyavasandra Village, Krishnarajapura
Hobli, Bangalore South Taluk and for which an agreement to sell dated
25.05.1981 was executed. The respondent had placed the appellant in
possession of the said property. Later on, he declined to execute the sale
deed despite appellant being always ready and willing to perform her
part of the obligation to the agreement.
4. The respondent contested the suit, filed written statement and
denied
averments made in the plaint. According to the respondent his
father had already spent substantial amount on the marriage of the
appellant. She was also given jewellery worth Rs. 50,000/- and also an
additional sum of Rs. 8,000/-for establishing a stationary-cum-coffee
shop. Other averments made in the written statement were to the effect
that the appellant had access to the savings of her father and that she
had secretly utilized the savings of both her and her father’s in purchasing
property in the name of her husband. In paragraph 15 of the written
statement, further details have been mentioned with regard to the property
acquired by the appellant and also which is received from their father.
5. The respondent, however, admitted that the properties described
at 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 the
death of his father, he was exclusively cultivating the same and upon the
coming of the Mysore (Religious and Charitable) Inams Abolition Act,
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19551, he became entitled to occupancy rights and accordingly applied
for it, which was granted. Further, the respondent denied the alleged
agreement to sell and stated that it was a false and fabricated document
and he never received any consideration amount as alleged by the
appellant. On such pleadings, it was prayed that the suit be dismissed
with exemplary costs.
6. Parties led evidence, both oral and documentary. The XIX
Additional City Civil Judge, Bangalore vide judgement and order dated
02.09.2003 decreed the suit declaring that the appellant was entitled for
¼ share in properties described as item nos. 1 and 2 and ½ share in item
no. 3. of Schedule ‘A’ and for separate possession by metes and bounds.
It, further, directed the respondent to execute the sale deed in respect of
the property described in Schedule ‘B’ of the plaint.
7. The respondent preferred an appeal under Section 96 of the
Code of Civil Procedure, 19082 before the High Court of Karnataka
registered as RFA No. 214 of 2004. Before the High Court, the counsel
for the appellant, gave up the relief for specific performance. The High
Court vide judgment and order dated 19.08.2006 upheld the ¼ share of
the appellant in the property described at item nos. 1 and 2 of Schedule
‘A’. However, it agreed with the contention of the respondent that the
property described at item no. 3 of Schedule ‘A’ was jointly cultivated
by 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 of
his father would be divided between his heirs i.e. ¼ to his daughter and
¼ to his son. Thus, the appellant would be entitled for ¼ share in the
property described at item no. 3 of Schedule ‘A’ and not ½ share as
decreed by the Trial Court. To this limited extent the decree of the Trial
Court was modified.
8. Aggrieved by the same, the appellant has filed the present appeal
with respect to the reduction of her share from ½ to ¼ with respect to
the property described at item no. 3 of Schedule ‘A’. There is no appeal
by the respondent with respect to the ¼ share given to the appellant by
the Trial Court and affirmed by the High Court with respect to item
nos.1 and 2 of Schedule ‘A’ properties.
9. Heard learned counsel for the parties and perused the material
on 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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Order dated 30.07.2007 had confined it to the question of shares of the
parties in Item No.3 of Schedule ‘A’ of the property.
10. The only issue thus which survives for our consideration and
adjudication is whether the appellant is entitled to ½ share or ¼ share in
the property described at item no. 3 of Schedule ‘A’ property over which
occupancy rights under the Inam Act were claimed. Remaining claim of
the appellant regarding ½ share in item nos. 1 and 2 of Schedule ‘A’ and
Schedule ‘B’ properties stand closed at the stage of first appeal before
the High Court.
11. The Trial Court framed six (6) issues, which read as follows:-
“1. Whether plaintiff proves that suit property are the joint family
property of herself and defendant?
2. Whether plaintiff proves that defendant executed an agreement
in respect of ‘B’ Schedule property in favour of plaintiff on 25.05.81
for a sale consideration of Rs.12,000/-?
3. Whether suit is barred by limitation?
4. Whether suit is not properly valued and court fee paid is
insufficient?
5. Whether plaintiff is entitled for suit relief?
6. 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 of
the appellant in item nos.1 and 2 of Schedule ‘A’ properties, but having
admitted that his father Puttanna succeeded to item nos.1 and 2, and
that they were ancestral properties, as such,
the appellant would be
entitled 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 in
appeal and as there is no further appeal by the respondent with respect
to item nos.1 and 2 of Schedule ‘A’ properties, the relief granted to the
appellant to that extent stands finalized and closed.
13. Now coming to item no. 3 of Schedule ‘A’ property, it was a
Devadaya Inamathi Land. During life time of Puttanna, father of the
parties, he was cultivating the same on the basis of Panchashala Gutta
and on the coming of the Inam Act, Puttanna filed an application for
grant of occupancy rights before the Special Deputy Commissioner, Inam
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Abolition, Bangalore. Later on, the said matter came up before the Land
Tribunal, Bangalore and during pendency of the said application, Puttanna
died. Thereafter, the respondent came on record and he carried forward
the application, filed by Puttanna for occupancy rights, which ultimately
came to be granted in his favour.
14. The respondent had set up a specific claim that he was
cultivating item no.3 of the Schedule ‘A’ property personally and he
alone had made the application for occupancy rights and the same being
granted in his name, it became his self-acquired property.
15. The Trial Court discussed in detail the evidence led by the
parties with regard to item no.3 of the Schedule ‘A’ property. It noted
that the appellant (P.W.-1) had stated that the said property was personally
cultivated by the father of the parties namely, Puttanna, which was an
agricultural land of the Devadaya Inamathi on the basis of a Panchashala
Gutta. Puttanna had applied for grant of occupancy rights under the
Inam Act on 17.04.1971. However, while the matter was pending before
the Karnataka Land Tribunal, Puttanna died. The respondent got himself
impleaded as legal representative of late Puttanna and he was, thereafter,
granted occupancy rights by the Land Tribunal. The Trial Court further
noticed that occupancy rights were heritable in nature and it is for this
reason that after death of Puttanna, the respondent could get his name
substituted and was also successful in
obtaining the occupancy rights,
but the fact remains that upon the death of Puttanna, the item no.3 of
Schedule ‘A’ property, being heritable in nature, would be inherited by
both 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 property
would be deemed to be self-acquired property of Puttanna.
16. The Trial Court further considered Exts. P-2 to P-36, which
were receipts of payment of Panchashala Gutta and the revenue by
Puttanna i.e. to say that Puttanna was throughout cultivating item no.3
of Schedule ‘A’ property on the basis of Panchashala Gutta. Ext. P-37
was also relied upon by the Trial Court, which was a document of the
RTC extract to show that the said land was recorded as Inam land and
Puttanna was cultivating the same. Exts. P-2 to P-36 reveal that Puttanna
had been cultivating the said land since 1955 continuously. Exts. P-38
and P-39 were copies of the applications, filed by late Puttanna before
the Special Deputy Commissioner, Inam Abolition, Bangalore. Exts. P-
40 and P-41 were copies of the notices issued by the Revenue Authorities
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calling upon him to appear for consideration of his applications for grant
of occupancy rights. Further, Exts. P-42 and P-43 were copies of the
statements given by one G.K. Gurunath and the respondent before the
Land Tribunal, Bangalore. Ext. P-44 is the statement of one Narasimhaiah
and Ext. P-45 is the order of the Land Tribunal, Bangalore granting
occupancy rights in favour of the respondent.
17. The Trial Court further proceeded to consider the statement
of the respondent, who entered the witness box as DW-1. He had set up
a case that he was jointly cultivating item no.3 of the Schedule ‘A’ property
along with his father and, as such, after death of his father, he was
exclusively cultivating the said land. He also stated that he had applied
for grant of occupancy rights before the Special Deputy Commissioner
and, as such, rights were granted in his name. He denied that appellant
was in joint possession of item no.3 of Schedule ‘A’ property. He claimed
the said property to be his self-acquired.
18. The Trial Court discussed the cross-examination of respondent
(DW-1) thread-bare. The Trial Court noticed the admission of the
respondent (DW-1) from his cross-examination as follows:
“(i)  Item No.3 of ‘A’ schedule property was given to Puttanna on
basis of Panchashala Gutta.
(ii) Puttanna during his life time was paying the revenue and
cultivating the said land.
(iii) Respondent had applied as legal representative in
the
proceedings initiated by Puttanna for grant of occupancy rights.
(iv) Before the Land Tribunal, respondent DW-1 has stated that
his father Puttanna was cultivating the said property and after his
death, he is claiming occupancy rights being the legal
representative.”
19. The Trial Court further relied upon a statement of one
Narasimhaiah marked as Ext. P-44, given before the Land Tribunal,
wherein he stated that he knew Puttanna, and that he was cultivating
the said land.
20. The Trial Court also noticed that even the order granting
occupancy rights, passed by the Land Tribunal (Ext. P-45) clearly
mentions that the respondent was claiming occupancy rights on basis of
the 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.
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21. On such material, the Trial Court came to the conclusion that
item no.3 Schedule ‘A’ property was the acquisition of Puttanna himself
and that upon his death, it would be inherited in equal shares by his heirs
being both his children, the appellant and the respondent.
22. On the above findings the Trial Court decreed the claim of the
appellant to be having half share in item no.3 of Schedule ‘A’ property
vide judgment dated 02.09.2003.
23. Respondent preferred an appeal before the High Court under
Section 96 CPC registered as RFA No. 214 of 2004. Before the High
Court, the appellant gave up her claim regarding specific of performance
with respect to Schedule ‘B’ property. The High Court vide judgment
dated 19.08.2006 confirmed the finding relating to ¼ share to the appellant
with 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 of
Schedule ‘A’ property by reducing the share of appellant from ½ to ¼.
24. The High Court in a very cursory and cryptic manner, partly
allowed the first appeal. It did not consider the evidence considered by
the Trial Court. Neither did it deal with the statements or the other
documentary evidence on record and only on a bald statement of the
respondent, which according to it, was mentioned in the order of the
Land Tribunal that respondent was jointly cultivating the said land along
with 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 impugned
judgment is reproduced hereunder:
“The contention of the defendant that the properties were given
to plaintiff during the lifetime of her father. Therefore, not entitled
to any share in the estate of her father by way of succession is an
untenable contention and not a triable defence. Whatever the
properties gifted to her during his lifetime constitute separate
properties of the plaintiff and such a gift/assignment does not
deprive the right of the plaintiff to seek share by way of succession
after the demise of the father. Item No.3 of ‘A’ schedule property
is an agricultural land and it was Devadaya Inamathi land cultivated
by the father of the plaintiff. He had made an application in Form
No.1 for grant of occupancy rights. The defendant also made an
application in Form No.7 for grant of occupancy rights in respect
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of the same land. Ex.P-5 is the order of the Land Tribunal, in
which, it categorically mentions that the defendant had made a
statement before the Tribunal that the land was jointly cultivated
by himself and by his father. Therefore, it becomes a joint family
estate.
In that view, after the demise of the father, the defendant and his
father are entitled to the notional share of 1-1/2 each and the
plaintiff 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 original
decree. Further Order XLI Rule 31 of the CPC provides for the contents
of the judgment of the First Appellate Court. According to it, the judgement
of the Appellate Court shall be in writing and would include the points
for determination, the decision thereon, the reasons for the decision and
where the decree is reversed or varied, the relief to which the appellant
is entitled. Section 96 and Order XLI Rule 31 of the CPC are reproduced
below:
“Section 96-Appeal from original decree.
(1) Save where otherwise expressly provided in the body of this
Code or by any other law for the time being in force, an appeal
shall lie from every decree passed by any Court exercising original
jurisdiction to the Court authorized to hear appeals from the
decisions 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 the
consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree
in any suit of the nature cognizable by Courts of Small Causes,
when the amount or value of the subject-matter of the original
suit does not exceed 2 [ten thousand rupees.]”
Order XLI Rule 31
“Contents, date and signature of Judgment”
The Judgment of the Appellate Court shall be in writing and shall
state-(a) the points for determination;(b) the decision thereon;(c)
the reasons for the decision; and (d) where the decree appealed
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from is reversed or varied, the relief to which the appellant is
entitled, and shall at the time that it is pronounced be signed and
dated by the Judge or by the Judges concurring therein.”
27. It has been a matter of debate in a catena of decisions as to
what would be the scope, power and duty of the First Appellate Court in
deciding an appeal under Section 96 CPC read with Order XLI Rule 31
CPC. We briefly deal with the law on the point.
28. Learned Judge V.R. Krishna Iyer, J., [as he then was a
Judge of the Kerala High Court] in 1969, while deciding the case between
Kurian Chacko vs. Varkey Ouseph3, dealing with a similar judgment
of 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 and
therefore a litigant is entitled to a full and fair and independent
consideration of the evidence at the appellate stage. Anything
less than this is unjust to him and I have no doubt that in the
present case the learned Subordinate Judge has fallen far short of
what is expected of him as an appellate court.”
29. Further following the above, there have been a series of
judgments by this Court;
29.1 In Santosh Hazari vs. Purushottam Tiwari4 (relevant
portion of para 15) is reproduced below:
“15…The appellate court has jurisdiction to reverse or affirm the
findings of the Trial Court. First appeal is a valuable right of the
parties and unless restricted by law, the whole
case is therein
open for rehearing both on questions of fact and law. The judgment
of the mind and record findings supported by reasons, on all the
issues arising along with the contentions put forth, and pressed by
the parties for decision of the appellate court. …while reversing a
finding of fact the appellate court must come into close quarters
with the reasoning assigned by the Trial Court and then assign its
own reasons for arriving at a different finding. This would satisfy
the court hearing a further appeal that the first appellate court
had discharged the duty expected of it.”
3 AIR 1969 Ker 316
4 (2001) 3 SCC 179 para 15
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29.2 In H.K.N. Swami vs. Irshad Basith5, this Court again
reiterated 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 on
questions of law all issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not recorded
any finding either on facts or on law. Sitting as the first appellate
court it was the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording the finding
regarding title.”
29.3 In 2015, this Court again in Vinod Kumar vs. Gangadhar6
considering the previous judgment recorded its view in paras 18 and 19
which are reproduced hereunder:
“18. In our considered opinion, the High Court did not deal with
any of the submissions urged by the appellant and/or the respondent
nor it took note of the grounds taken by the appellant in grounds
of appeal nor made any attempt to appreciate the evidence adduced
by the parties in the light of the settled legal principles and decided
case law applicable to the issues arising in the case with a view to
find out as to whether the judgment of the Trial Court can be
sustained or not and if so, how, and if not, why.
19. Being the first appellate court, it was the duty of the High
Court to have decided the first appeal keeping in view the scope
and powers conferred
on it under Section 96 read with Order 41
Rule 31 CPC mentioned above. It was unfortunately not done,
thereby, resulting in causing prejudice to the appellant whose
valuable right to prosecute in the first appeal on facts and law
was adversely affected which, in turn, deprived him of a hearing
in the appeal in accordance with law. It is for this reason, we
unable to uphold the impugned judgement of the High Court.”
29.4 Very recently, this Court in 2022 (to which one of us, Brother
Abdul Nazeer, J. was a member) in Manjual and others vs.
Shyamsundar and Others7, reiterated the same view in para 8 thereof,
which is reproduced hereunder:
5 (2005) 10 SCC 243
6 (2015) 1 SCC 391
7 (2022) 3 SCC 90
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“8. Section 96 of the Code of Civil Procedure, 1908 (for short,
‘CPC’) provides for filing of an appeal from the decree passed
by a court of original jurisdiction. Order 41 Rule 31 of the CPC
provides the guidelines to the appellate court for deciding the
appeal. This rule mandates that the judgment of the appellate court
shall 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, the
relief to which the appellant is entitled.
Thus, the appellate court has the jurisdiction to reverse or affirm
the findings of the Trial Court. It is settled law that an appeal is a
continuation of the original proceedings. The appellate court’s
jurisdiction involves a rehearing of appeal on questions of law as
well 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 open
for re-consideration. The judgment of the appellate court must,
therefore, reflect conscious application of mind and must record
the court’s findings, supported by reasons for its decision in respect
of all the issues, along with the contentions put forth and pressed
by the parties. Needless to say, the first appellate court is required
to comply with the requirements of Order 41 Rule 31 CPC and
non-observance of these requirements lead to infirmity in the
judgment.”
30. From the above settled legal principles on the duty, scope
and
powers of the First Appellate Court, we are of the firm view and fully
convinced that the High Court committed a serious error in neither forming
the points for determination nor considering the evidence on record, in
particular which had been relied upon by the Trial Court. The impugned
judgment of the High Court is thus unsustainable in law and liable to be
set aside.
31. The next question which arises is that where the judgment of
the Appellate Court is being set aside on the ground of non-consideration
of the evidence on record, the matter would normally be required to be
remanded to the First Appellate Court, whether in the facts and
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circumstances this case requires a remand. In the facts and circumstances
of 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 Court
is neither disputed nor demolished by the learned Counsel for the
respondent. As such, we do not find any good reason to remand the
matter to the High Court. We are of the view that in order to put a
quietus to the litigation and relieve the parties from any further harassment,
we set aside the judgment of the High Court and confirm the judgment
and decree of the Trial Court to the extent it relates to item no. 3 of
Schedule ‘A’ property described in the plaint, i.e. to say that the appellant
and the respondent would be entitled to ½ share each in the said property.
The Trial Court shall accordingly proceed to draw out the proceedings
for final decree of partition.
32. The appeal is accordingly allowed. There shall be no order as
to costs.
Divya Pandey
Appeal allowed.
(Assisted by : Rakhi, LCRA)