Parasappa S/O Fakeerappa Waddar vs Chinnawwa @ Tippawwa W/O Basappa ...
2022 Latest Caselaw 2297 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

          DATED THIS THE 14TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                  RSA.NO.100522/2019 (DEC)
BETWEEN

      PARASAPPA S/O FAKEERAPPA WADDAR
      SINCE DECEASED BY HIS LRS
1.    DURAGAVVA W/O PARASAPPA WADDAR,
      AGE: 79 YEARS, OCC: HOUSEHOLD,
      R/O: INJINWARI, TQ: BADAMI, DIST: BAGALKOTE.

2.    HANAMANTH S/O PARASAPPA WADDAR
      AGE: 49 YEARS, OCC: AGRICULTURE,
      R/O: INJINWARI, TQ: BADAMI, DIST: BAGALKOTE.

                                                ... APPELLANTS
(BY SRI.SANJAY CHANAL, ADV.)

AND

1.    CHINNAWWA @ TIPPAWWA W/O BASAPPA WADDAR
      AGE: 72 YEARS, OCC: AGRICULTURE,

2.    SIDDAPPA S/O BASAPPA WADDAR
      AGE: 52 YEARS, OCC: AGRICULTURE,

      BOTH ARE R/O: INJINWARI, TQ: BADAMI,
      DIST: BAGALKOTE-587201.

                                              ... RESPONDENTS

(BY SRI.R.G.DHONGADI & SRI.S.S.NIRANJAN ADVS. FOR R1 & R2,
SRI.JAGADISH PATIL & SRI.C.S.SHETTAR, ADVS. FOR R1 & R2,
SRI.M.M.HOMBAL, ADV. FOR R1 & R2)
                                          2




     THIS APPEAL IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:04.06.2019 PASSED IN R.A.NO.45/2010
ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD:25.01.2010, PASSED IN O.S.
NO.164/2007 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), BADAMI,
DECREEING THE SUIT FILED FOR DECLARAITON AND PARTITION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                  JUDGMENT

The captioned regular second appeal is filed by

unsuccessful defendants who are claiming to be the legal

heirs of Parsappa wherein the suit filed by the

respondents/plaintiffs seeking relief of injunction is decreed

by both the courts by negativing the Will set up by

husband of plaintiff No.1 namely, Parasappa.

2. Relevant family tree is as follows:

Nagappa (died about 40 years back)

Thimmavva (wife) died in the year 1967

Hanamavva @ Durgavva Gangavva (died 15.12.2000) Konappa (died)

Siddappa (husband) Fakeerappa (husband) Hanamavva (died)

Basappa (son) Parasappa (son) died

Chinnavva @ Tippavva Durgawwa (wife) App.1 (wife) R1

Siddappa (son) R2 Hanamanth (son) App.2

3. Brief facts of the case are that:

The respondents/plaintiffs represent the branch of

Hanamavva whereas the present appellants represent the

branch of Gangavva. Respondents/plaintiffs filed suit for

partition and separate possession by specifically contending

that suit schedule properties are owned by propositus

Nagappa and after his death, respondents/plantiffs

grandmother Hanamavva as well as grandmother of

appellant No.2 namely, Gangavva and son Konappa

inherited the suit schedule property left behind by the

deceased Nagappa. It is specifically contended that after

the death of original propositus, respondents/plaintiffs and

present appellants succeeded to the properties. The

present suit came to be filed as present appellants have

asserted right and title through Gangavva i.e. the

grandmother of respondents/plaintiffs herein on the basis

of Will alleged to have been executed by Gangavva.

4. The present appellants on receipt of summons

contested the proceedings and specifically contended that

respondents/plaintiffs grandmother Hanamavva as well as

Gangavva have bequeathed their share in the suit schedule

properties under Will dated 25.06.1999. Therefore, the

present appellants specifically contended that present suit

for partition is barred by limitation. The

appellants/defendants have also set up plea of adverse

possession and asserted title contending that they have

perfected their title by way of adverse possession.

5. Respondents/plaintiffs in support of their

contention let in evidence by examining two witnesses and

relied on documentary evidence vide Exs.P1 to P8.

Respondents/plaintiffs.               The            appellants/defendants

examined four           witnesses and relied on documentary

evidence         vide     Exs.D1           to    D6.          The         present

appellants/defendants placed reliance on Will as per Ex.D1.

The trial court having assessed oral and documentary

evidence found that Will produced by the

appellants/defendants as per Ex.D1 is shrouded with

suspicious circumstances. The trial court having

meticulously examined the cross-examination of

D.W.1/legatee found that legatee has actively participated

in preparation of the disputed Will. He has admitted in

unequivocal terms from the date of execution of the Will,

he is in the custody of the Will. He has also admitted in

unequivocal terms that expenses to prepare the Will as per

Ex.D1 was borne by him. He has also admitted that he has

taken the witnesses for registration of the Will. He has also

admitted in the cross-examination that Gangavva was 75

years and Hanamavva was 65 years and Hanamavva was

not keeping good health and that she was unable to hear

properly. It is in this background, the trial court has

recorded a categorical finding that legatee has taken active

participation and therefore, the Will is shrouded with

suspicious circumstances and the profounder of the Will

has failed to remove all suspicious circumstances. On these

set of reasoning, the trial court negatived the Will set up by

the deceased defendant No.1. The trial court while

considering additional issue has come to the conclusion

that defendants have failed to prove that they have

perfected their title by way of adverse possession. On

these set of reasoning, the trial court has decreed the suit

filed by the respondents/plaintiffs.

6. Defendant No.1 namely Parasappa feeling

aggrieved by the judgment and decree of the trial court

preferred an appeal before the first appellate court. The

first appellate court on re-appreciation of oral and

documentary evidence and having taken note of material

on record has also concurred with the conclusion and

finding recorded by the trial court. The first appellate court

has also found that legatee has taken active participation in

securing the Will. It is in this background, the first

appellate court was of the view that Will is shrouded with

suspicious circumstances and the same has not been

removed by the profounder of the Will by producing cogent

and clinching evidence. On these set of reasoning, the first

appellate court proceeded to dismiss the appeal.

7. Learned counsel for the appellants would

vehemently argue and contend that the entire proceedings

of the trial court stand vitiated as there is no specific issue

on due execution of Will. Therefore, he would submit to

this court that same has resulted in miscarriage of justice

and would warrant interference at the hands of this court.

8. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

judgments under challenge.

9. The primary contention raised by learned

counsel for the appellants is that trial court has adjudicated

the controversy in regard to execution of Will without

framing an issue. Though this court would find that issue is

not framed, however, on perusal of the material on record,

this court would find that even in the absence of issue, the

deceased defendant No.1 has understood his case and in

terms of the defence raised in the written statement has let

in evidence by examining scribe and witnesses. He has also

produced copy of the Will as per Ex.D1. Therefore, it is in

this background, the contention of the appellants cannot be

acceded to in regard to non-framing of an issue on the

ground that it amounts to irregularity or defect in

procedure. It is a trite law that once parties go for trial,

being alive to the controversy between them, even in

absence of a specific issue having been framed, the court is

not precluded from recording a finding of fact on the

controversy provided that the parties have pleaded the

case and have led their evidence. Though issue is not

framed, the defendant was infact afforded an opportunity

and he has let in evidence exhaustively having understood

his case. It is in this background, I am of the view that

non-framing of an issues would not vitiate the entire

proceedings.

10. Insofar as concurrent findings recorded by both

the courts below is concerned, I am of the view that active

participation by the legatee in securing the Will is tangible

and the same is elicited in the cross-examination of

legatee. Both the courts below have concurrently held that

due execution of the Will is not proved by the legatee and

suspicious circumstances are not removed by the legatee.

These concurrent findings on Will cannot be re-examined

by this court under Section 100 of CPC.

11. In regard to counter claim by

appellants/defendants that Parasappa has perfected his

title by way of adverse possession is also dealt by both the

courts and both the courts have concurrently held that

defendants have perfected their title by way of adverse

possession.

12. No substantial question of law arises for

consideration in this present appeal. Accordingly, the

appeal stands dismissed.

13. In view of dismissal of appeal, I.A's if any, do

not survive for consideration and same are dismissed.

SD/-

JUDGE MBS/-