Mutteppa S/O. Ramappa B. Patil vs Ningawa Calling Herself As
2022 Latest Caselaw 334 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 10TH DAY OF JANUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.5612 OF 2012 (DEC)

BETWEEN
MUTTEPPA S/O. RAMAPPA B. PATIL
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. SANGANKERI, TQ: GOKAK,
DIST: BELGAUM.
                                                  ... APPELLANT

(BY SRI. AKSHAY A KATTI, SRI. ANAND ASHTEKAR,
AND SRI. S. V. DESHPANDE, ADVOCATES)

AND
      SMT. NINGAWA CALLING HERSELF AS
      W/O. RAMAPPA B. PATIL
      SINCE DECEASSED BY HER LRS.

1A.   BHIMAPPA S/O. TIPPANNA SAMPGAVI,
      AGE: 58 YEARS, OCC: AGRICULTURE,
      R/O. SANGANKERI, TQ: GOKAK,
      DIST: BELGAUM.
                                                ...RESPONDENTS
(BY SRI. SANTOSH S HATTIKATAGI AND
SRI. SANTOSH B RAWOOT, ADVOCATES )

      THIS RSA IS FILED U/S.100 R/W. ORDER XLII RULE 1 OF
CPC, AGAINST THE JUDGEMENT & DECREE DATED 09.03.2012
PASSED IN R.A.NO.52/2001 ON THE FILE OF THE PRINCIPAL
DISTRICT   JUDGE,   BELGAUM,   ALLOWING   THE   APPEAL,   FILED
AGAINST THE JUDGMENT DATED 20.04.2001 AND THE DECREE
PASSED IN O.S.NO.14/1994 ON THE FILE OF THE CIVIL JUDGE
                                2




SENIOR DIVISION GOKAK, DECREEING THE SUIT FILED FOR
DECLARATION, PARTITION AND POSSESSION.


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


                         JUDGMENT

This captioned second appeal is filed by the

unsuccessful defendant No.1 questioning the concurrent

judgments and decree of the Courts below.

2. Facts leading to the case are as under:

One Ningawwa, who is the original plaintiff, filed a

suit for declaration and consequential relief of injunction

and for partition claiming half share in the suit schedule

property. In the suit, the original plaintiff-Ningawwa

questioned the alleged relinquishment deed dated

24.11.1984 as illegal, null and void and hence sought for

partition in the suit schedule properties by specifically

contending that she is legally wedded wife of Ramappa

Patil and after his death, she is entitled for half share in

the suit schedule properties.

The present appellant, who was arrayed as

defendant No.1 in the said suit, on receipt of summons

contested the proceedings and stoutly denied the very

status of Ningawwa as wife of Ramappa Patil. He

specifically contended that one Udawwa is legally wedded

wife of Ramappa and therefore, the present plaintiff-

Ningawwa is no way concerned to Ramappa Patil and

therefore sought for dismissal of the suit. He also

specifically contended that Ramappa Patil had voluntarily

executed relinquishment deed dated 24.11.1984 and

therefore, he acquired valid right and title.

Defendant No.2 claimed that he has purchased the

property from defendant No.1 and therefore contended

that he is entitled to equity as he would step into the

shoes of defendant No.1.

In support of her contention, Ningawwa let in ocular

evidence by examining herself as PW1 and examined

three independent witnesses and corroborated ocular

evidence with documentary evidence vide Ex.P1 to

Ex.P21.

3. Though burden was cast on defendant No.1 to

establish his title under the alleged relinquishment deed

dated 24.11.1984, the present appellant has not chosen

to step into the witness box and the alleged

relinquishment deed is not produced before the Court.

4. The trial Court having assessed oral and

documentary evidence and after meticulously examining

the documents, which were placed on record by plaintiff,

has come to the conclusion that Ningawwa is wedded wife

of Ramappa Patil and has proceeded to answer issue No.1

to 3 in affirmative by holding that Ningawwa has

succeeded in proving that she is legally wedded wife of

Ramappa Patil and that she is entitled to share in the suit

property. Accordingly, suit came to be decreed.

5. Being aggrieved by the judgment and decree

of the Trial Court, defendant No.1 preferred regular

appeal before the First Appellate Court. The First

Appellate Court having re-appreciated the oral and

documentary evidence has also negatived the contention

of the appellant/defendant No.1 that Udawwa is the

legally wedded wife of Ramappa Patil. The First Appellate

Court was of the view that if Udawwa is really alive, it is

incumbent on the part of appellant/defendant No.1 to

plead the said fact and ought to have stated in the plaint

indicating that Udawwa is legally wedded wife of

Ramappa Patil and she is alive. On re-appreciation of the

evidence on record, the First Appellate Court also found

that the voter's list produced as per Ex.P18 the names of

plaintiff-Ningawwa, defendant No.1-Muttappa and his

wife Kamalavva was found at Sl.No.536 to 538,

respectively, and Ex.18-voter's list clearly demonstrate

that all were residing in one house. On re-appreciation of

evidence, the First Appellate Court concurred with the

findings arrived by the Trial Court and hold that deceased

plaintiff-Ningawwa is the legally wedded wife of

deceased-Ramappa. The First Appellate Court having

concurred with the finding of the Trial Court however

allowed the appeal on the ground that on account of

death of Ningawwa, the interest in the suit schedule

properties would devolve upon the present appellant and

therefore, disposed of the appeal holding that the present

appellant would become owner of the remaining

properties but however, appeal was dismissed insofar as

R.S.No.161/1 is concerned by recording a finding that

Ramappa has gifted 4 acres of land in R.S.No.161/1 and

therefore, the appellant would not be entitled for any

share in the suit schedule property.

6. Being aggrieved by these concurrent findings,

defendant No.1 is before this Court.

7. The present appellant is disputing the right of

the plaintiff-Ningawwa by specifically contending that his

father Ramappa Patil has relinquished the suit schedule

property bearing R.S.no.161/1 in his favour under

relinquishment deed dated 24.11.1984. Having taken

such a defence, it was incumbent on his part to establish

his right and title by proving the alleged execution of

relinquishment deed in his favour. Having taken such a

defence, he has not chosen to enter into the witness box.

There is no ocular evidence and the same is not

supported by producing any document. Both the Courts

below have concurred and held that the present appellant

has failed to establish that he has acquired valid right and

title on the basis of relinquishment deed executed by

Ramappa. Both the Courts below have answered issue

No.4 in the negative. Therefore, there is absolutely no

evidence indicating that he has acquired the absolute

right and title based on the relinquishment deed. Insofar

as the question as to whether Ningawwa is the legally

wedded wife of Ramappa, both the courts below have

discussed the ocular evidence and have examined the

documents placed on record by deceased plaintiff-

Ningawwa. Ex.P1 is the registered gift deed. It is

pertaining to the present suit property, which is executed

in her favour by her husband Ramappa. In the said

document, Ramappa has in unequivocal term referred

Ningawwa as his legally wedded wife. The recital under

the registered document, at an undisputed point of time,

has got credence and the same is not at all rebutted by

the appellant herein by leading rebuttal evidence. The

respondent-plaintiff has also produced the voter's list,

which clearly demonstrates that Ningawwa was residing

along with Ramappa and present defendant in the very

same house and she is referred as wife of Ramappa in

Ex.P18-voter's list. This clinching evidence is taken into

consideration by both the Courts below and both the

Courts below have concurrently held that deceased

plaintiff-Ningawwa is the legally wedded wife of deceased

Ramappa and have consequently decreed the suit of

Ningawwa granting half share in the suit schedule

property.

8. The First Appellate Court has taken judicial

note of the fact hat the original plaintiff-Ningawwa died

intestate during the pendency of the suit. Except the

gifted property, which is survey No.161/1, the appellant

herein being son of deceased Ramappa would also

succeed to the properties left behind by Ningawwa.

However, the Appellate Court has rightly declined to

grant any relief in respect of Survey No.161/1. In

connected appeal, which is also listed before this Court in

RSA No.100987/2015, the said Ningawwa claimed right

over the property pursuant to registered gift deed

executed by Ramappa has in fact sold Survey No.161/1 in

favour of one Laxman Hulgund who in turn sold it to

defendant No.2 in O.S.No.247/1984. The material on

record would clearly reveals that Ningawwa during her

life time has sold the suit schedule property and further it

is also formed that there are subsequent alienations and

therefore, R.S.No.161/1 has changed hands. In that view

of the matter, though the appellant would succeed to all

the properties, which are left behind by Ningawwa

however, R.S.No.161/1, which was already sold by

Ningawwa during her lifetime, the purchasers acquired

valid right and title and therefore, even on account of

death of Ningawwa appellant would not get any right or

title in respect of R.S.No.161/1 is concerned. Therefore,

with this clarification, the present second appeal is devoid

of merits and no substantial question of low is involved in

this appeal. Accordingly, the appeal is dismissed.

9. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN