Shivanand S/O. Basappa ... vs Shivaleela @ Latha W/O.Shivanand ...
2022 Latest Caselaw 10559 Kant

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                                       RSA No. 100391 of 2014


 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 08TH DAY OF JULY, 2022

                            BEFORE
          THE HON'BLE MR JUSTICE M.G.S. KAMAL
     REGULAR SECOND APPEAL NO. 100391 OF 2014 (INJ)
BETWEEN:
1.    SRI.SHIVANAND S/O. BASAPPA GUDISALAMANI
      AGE: 53 YEARS, OCC: GOVERNMENT SERVICE
      R/O. NOW NO. 76, RUDRAGANGA LAYOUT
      BEHIND NEW BUS STAND,
      GOKUL ROAD, HUBLI-580020.

                                                      ...APPELLANT
(BY SRI. MAHESH WODEYAR, ADV.)
AND:
1.    SMT.SHIVALEELA @ LATHA W/O.SHIVANAND GUDISALAMANI
      AGE: 40 YEARS, OCC: HOUSEHOLD WORK
      R/O. NO. 76, RUDRAGANGA LAYOUT,
      BEHIND NEW BUS STAND, GOKUL ROAD,
      HUBLI-580020.

2.    KUM. SHREYA D/O. SHIVANAND GUDISALAMANI
      AGE: 20 YEARS,
      OCC: STUDENT
      R/O. NO. 76 RUDRAGANGA LAYOUT BEHIND NEW BUS STAND
      GOKUL ROAD HUBLI-580020.

3.    KUM. SHRADDHA D/O. SHIVANAND GUDISALAMANI
      AGE: 18 YEARS,
      OCC: STUDENT
      R/O. NO. 76 RUDRAGANGA LAYOUT BEHIND NEW BUS STAND
      GOKUL ROAD HUBLI-580020.

                                                  ...RESPONDENTS
(R1 TO R3 ARE SERVED)
      THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT &
DECREE DTD:07.04.2014 PASSED IN R.A.NO.38/2012 ON THE FILE OF THE
III ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT AND DECREE DTD:07.04.2012 AND THE
DECREE PASSED IN O.S. NO.864/2009 ON THE FILE OF THE I ADDITIONAL
CIVIL JUDGE AT HUBLI, DECREEING THE SUIT FILED FOR MAINTENANCE
AND PERMANENT INJUNCTION.
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                                        RSA No. 100391 of 2014


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY. THE COURT
DELIVERED THE FOLLOWING.

                           JUDGMENT

1. Present appeal is by the defendant aggrieved by the

judgment and decree dated 07.04.2014 passed in

R.A.No.38/2012 on the file of the III Additional Senior Civil

Judge, Hubballi (hereinafter referred to the as 'the first

appellate Court') by which the first appellate Court dismissing

the appeal filed by the appellant with costs confirmed the

judgment and decree dated 07.04.2012 passed by the I

Additional Civil Judge, Hubballi (hereinafter referred to as 'the

trial Court') in O.S.No.864/2009 by which the trial Court had

directed the appellant herein to pay Rs.1,000/- per month to

plaintiff No.1 towards maintenance and Rs.500/- per month to

each plaintiff Nos.2 and 3 as long as they are minors or till their

marriage, whichever is later. Further by the said judgment and

decree, the trial Court had created charge on the suit property

in respect of maintenance awarded as above.

2. Brief facts of the case are that; the above suit was

filed by the plaintiff Nos.1 to 3, who are the wife and children

respectively of the defendant, on the premise that the marriage

of plaintiff No.1 with the defendant was solemnized on

RSA No. 100391 of 2014

24.06.1993 at Veerabhadreshwar Temple Kalyan Mantap,

Ranebennur. Out of the said wedlock, plaintiff Nos.2 and 3 were

born on 12.08.1994 and 05.07.1997 respectively. That the suit

schedule is the residential site purchased by the defendant

under a registered deed of sale dated 26.03.2001. The

defendant had constructed the residential house thereon. The

defendant was employed as Engineer in BSNL and plaintiff No.1

and the defendant lived happily up to the year 2008 when the

defendant was transferred to Basavakalyan Branch at Bidar

district. That after the transfer to Basavakalyan, the defendant

started neglecting to maintain the plaintiffs. He did not even

visit the residence of the plaintiffs and stopped sending money

for maintenance. Plaintiff No.1 suspecting the bonafide of the

respondent and being apprehensive of the defendant, trying to

alienate suit schedule property to the stranger, depriving

shelter of the plaintiffs, they filed the suit seeking the aforesaid

reliefs. The plaintiff No.1 is a housewife and plaintiff Nos.2 and

3 were pursuing their 9th and 7th standard studies at the time of

filing of the suit.

3. The defendant on service of summons appeared

and filed written statement contending that the suit schedule

RSA No. 100391 of 2014

property is his self acquired property and the plaintiffs had no

right, title or interest over the same. That he had every right to

deal with the suit property in the manner he deemed fit and

proper. He denied the allegations of he neglecting the plaintiffs

after his transfer to Basavakalayan. He specifically contended

that he had taken care of the plaintiffs with love and care as a

husband and as a father. That he has spent enough amount for

their maintenance and education. He denied the suspicion of

plaintiff No.1 regarding his relationship with a lady. He denied

the allegation of he trying to alienate the suit schedule property

with an intension of throwing out the plaintiffs from the house.

Hence, he sought for dismissal of the suit.

4. The trial Court on the aforesaid pleadings, framed

the following issues:

1. Whether the plaintiff proves that the defendant has failed or refused to maintain them?

2. Whether the plaintiffs are entitled to any maintenance amount? If so, to what extent?

3. Whether the plaintiffs have any legal right of restraining the defendant from alienating the suit property?

4. Whether the plaintiffs prove that the defendant is trying to illegally alienate the suit property to the third persons?

RSA No. 100391 of 2014

5. Whether the plaintiffs are entitled to the permanent injunction as prayed for in the suit?

6. What order or decree?

5. Plaintiff No.1 examined herself as PW1 and

produced four documents marked as Exs.P1 to P4. The

defendant examined himself as DW1 and closed his side. On

appreciation of evidence, the trial Court decreed the suit as

above. Aggrieved by the same, the defendant filed the above

regular appeal in R.A.No.38/2012. Considering the grounds

urged, the first appellate Court framed the following points for

its consideration:

1. Whether the plaintiffs have made out the grounds to receive the documents produced along with the application u/o41 rule 27 of CPC?

2. Whether the plaintiffs have proved that the defendant has refused to maintain them?

3. Whether the plaintiffs are having the right to create charge on the schedule property?

4. Whether the impugned judgment and decree of the trial Court is contrary to the fact of law and evidence on record, hence requires interference from this Court?

6. By the impugned judgment and decree dismissed

the appeal confirming the judgment and decree passed by the

RSA No. 100391 of 2014

trial court. Aggrieved by the same, the appellant is before this

Court.

7. Sri.Mahesh Wodeyar, learned counsel for the

appellant reiterating the grounds urged in the memorandum of

appeal submitted that the only grievance is with regard to the

impugned judgment and decree in creating charge over the suit

schedule property. He submits that presently they are living

happily together and the divorce proceedings which were

initiated by the appellant has resulted in dismissal and that he

is maintaining the plaintiff No1. He further submits that plaintiff

No.2 is married and settled and plaintiff No.3 is still pursuing

her studies. That the judgment and decree creating charge is

causing hardship to the appellant/defendant in his enjoyment

of the ownership over the same. He relied upon the judgment

of the Apex Court in the case of Union of India Vs.Ibrahim

Uddin and another reported in (2012) 8 SCC 148 referring to

paragram 85.6 of the said judgment, wherein the Apex Court

has held that "The court cannot travel beyond the pleadings as

no party can lead the evidence on an issue/point not raised in

the pleadings and in case, such evidence has been adduced or

a finding of fact has been recorded by the Court, it is just to be

RSA No. 100391 of 2014

ignored" and submits that since the plaintiffs have not pleaded

or sought for creation of any charge over the property, the trial

Court was not justified in passing the decree creating the

charge over the property. He further submits that the trial

Court has taken shelter under Section 39 of the Transfer of

Property Act, 1882 to grant such relief which was erroneous.

Hence, he submits that the same gives rise to substantial

question of law requiring consideration.

8. Heard the learned counsel for the parties. Perused

the records.

9. It is not in dispute that the plaintiff Nos.1 to 3 being

the wife and children had sought for relief and expressed their

apprehension about their possible dispossession from the suit

schedule property in the event the defendant alienating the suit

schedule property to third parties.

10. The defendant has specifically adverted to this

allegation in the written statement and has pleaded that he has

no intention of alienating the property and that he will provide

accommodation and shelter to the plaintiffs and now

undertakes to provide good accommodation to the plaintiffs. He

RSA No. 100391 of 2014

has pleaded that the paramount interest is only the welfare of

his children. It is this pleading and undertaking by the

defendant which appeared to have weighed in the mind of the

trial Court to further ensure the safety of the plaintiffs in

passing the decree, creating charge over the suit schedule

property to the extent of security of maintenance granted in

favour of the plaintiffs. Further in view of subsequent

development of parties living happily and plaintiff No.2 having

been married and plaintiff No.3 still pursuing her studies and

the divorce petition of the appellant having been dismissed, this

Court is of considered opinion that the judgment and decree

would not cause any hardship to the appellant and no grounds

are made out. No substantial question of law arises for

consideration. Appeal is dismissed accordingly.

11. I.A.No.1/2014 for stay is disposed of accordingly.

Sd/-

JUDGE

KGK