HANUMANTHAPPA Vs. BHIMAPPA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant and the respondents.

(2.) THIS Second Appeal under Section 100 of the Code of Civil Procedure has arisen from the judgment and decree dated December 15, 1990 passed in Regular Appeal No. 12/1990 whereby the Lower appellate Court had dismissed the defendant's appeal and had confirmed the decree of the Trial Court in Suit No. 164/1989 (old number 64 of 1984) whereby the Trial Court had decreed the plaintiff's suit for partition of the suit properties. It has been contended before me that there is no dispute about the quantum of share etc. , the learned Counsel for the appellant has contended that main defence of the defendant-1 was that there had been complete partition of the joint family properties belonging to the appellant and the respondents. But the courts below have concurrently recorded the finding to the effect that on an earlier occasion earlier to the filing of the suit, there had been no partition of the properties amongst the parties and so plaintiff was entitled to decree for partition of the share. Learned Counsel for the appellant contended that there was certification of mutation entry of partition in the records, made on a joint memo filed and that entry was to be presumed to be representing the true state of affairs of fact and there had been partition of the joint family property. The learned Counsel made a reference to Section 133 of the Karnataka Land Revenue Act and contended that the courts below wrongly cast burden on the defendant to prove that certification was done in accordance with law and in not placing reliance on the certification entry exhibiting true state of facts including the partition. Whether there has been a partition earlier to the filing of the suit property or joint family property belonging to the parties earlier to the filing of the suit, the finding on such a question is undoubtedly a finding of question of fact which has been recorded concurrently in favour of the plaintiff/respondent that there had been no partition. A finding of fact, it is well settled principle of law, and, specifically a concurrent finding of fact, is binding on the parties and on the Court is second appeal, and cannot be interfered with by this court in second appeal how so ever the grossly erroneous it may be, on the ground which come within the appreciation of evidence or on the question of reliability or unreliability of particular evidence.

(3.) AS regards the question of burden of proof, Section 133 no doubt provides that any entry in record of rights and certified copy of the register of mutation or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. Section 133 provides for a rebutable presumption and that if something contrary to the entries is proved or something contrary to the state of affairs represented by the entries is proved, then presumption is not to be raised with regard to the correctness of evidence. Even if the entry had been made after following the procedure but if an entry had not been made at all in accordance with the procedure established by law, then also no presumption is to be raised. It means that in respect of entries if made according to law in the Revenue Register then Section 133 provides that contrary or otherwise can be proved by furnishing other evidence by the party concerned and it is open to the court either to raise presumption or to hold that the facts rebutting the presumption or facts contrary to said have not been proved. That if the Court looking to the entry as well as to the evidence oral documentary or/and circumstantial etc , comes to the conclusion that the state of affairs contrary to one to prove which the entries has been produced, have been otherwise proved than as represented by the entry, the presumption will stand rebutted. That both the parties had lead evidence. The courts below in paragraph 1 to 16 after having considered the other evidence lead in by the plaintiff and the defendant's witnesses examined the question whether the contrary has been established and has come to the conclusion that in the circumstances of the case no partition has taken place of the properties earlier than to filing of the suit. Even otherwise appreciating the evidence the Court had come to the conclusion contrary to what entry represents, it may. be said that presumption is rebutted. May be that at one stage the court also makes a remark that the defendant had not summoned the whole file that it does not make a material difference before this Court. It is well settled principles of. law that when the parties have lead evidence oral or documentary or circumstantial, then burden of proof looses its importance and it is the question of appreciation of evidence whether a fact has been proved or established, which has been asserted by a party or a fact to the contrary has been proved i. e. fact having tendency of rebutting the presumption arising from the fact. Learned Counsel for the appellant has made a reference to the decision of this court in the case of RAMAKRISHNA GANAPAYYA vs LAKSHMINARAYANA THIMAYYA and placed emphasis on certain observations made in paragraph 14. In paragraph 14 it has been observed -