Karnataka High Court
Smt Muttawwa vs Shivappa S/O Channabasappa Pujar on 12 December, 2023
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RSA No. 1914 of 2007
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.1914 OF 2007 (DEC/INJ)
BETWEEN:
1. SMT. MUTTAWWA W/O. HALAPPA PUJAR,
AGE: 39 YEARS,
2. CHANNABASAPPA S/O. HALAPPA PUJAR,
SINCE DECEASED
3. MALLIKARJUN S/O. HALAPPA PUJAR,
AGE: 24 YEARS
4. SAVITA D/O. HALAPPA PUJAR,
AGE: 22 YEARS,
(ALL ARE RESIDING AT NAGALAPUR
VILLAGE, BYADAGI TALUKA, HAVERI DIST.)
...APPELLANTS
(BY SRI. LAXMAN T.MANTAGANI, ADVOCATE)
AND:
Digitally signed SHIVAPPA S/O. CHANNABASAPPA PUJAR,
by VISHAL
VISHAL NINGAPPA SINCE DECEASED BY LRS'S
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.12.20
10:40:32 +0530
1(a) LOKAPPA @ S/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 48 YRS, OCC: AGRL.,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST: HAVERI-581106.
1(b) DRAXAYANI D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 46 YRS, OCC: HOUSEHOLD WORK,
TQ. BYADAGI, DIST. HAVERI-581106.
1(c) SHAILAVVA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 44 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
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RSA No. 1914 of 2007
1(d) NIRMALA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 42 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
1(e) SAKAMMA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 40 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
1(f) GEETHA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 38 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
1(g) NEELAMMA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 36 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
1(h) MANJULA D/O. SHIVAPPA @ SHIVAJEPPA PUJAR
AGE: 34 YRS, OCC: HOUSEHOLD WORK,
R/O. NAGALAPUR,
TQ. BYADAGI, DIST. HAVERI-581106.
...RESPONDENTS
(BY SMT. PALLAVI S.PACHHAPURE, ADVOCATE FOR R1 (A TO H))
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGEMENT
& DECREE DATED 23.12.2005 PASSED IN R.A.NO 44/02 ON THE FILE
OF THE ADDL. CIVIL JUDGE (SR.DN), RANEBENNUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED
31.07.2001 PASSED IN OS 8/96 ON THE FILE OF THE CJ (JR.DN), &
JMFC., BYADGI, DISMISSING THE SUIT FOR DECLARATION AND
CONSEQUENTIAL RELIEF OF PERMANENT INJUNCTION.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1914 of 2007
JUDGMENT
1. The present second appeal by the plaintiffs
assailing the concurrent findings of the Courts below,
whereby, suit of the plaintiffs seeking declaration and
permanent injunction was dismissed by the Courts below.
2. This Court, while admitting the appeal, on
15.04.2011 has framed the following substantial questions
of law:
"(1) Whether the Courts are justified in dismissing
the suit, denying the claim of the plaintiffs 1 to
3 and ignoring the claim without giving
presumptive value to the documents like
voters list, mutation entries and ration card
and compromise petition by way of an
agreement?
(2) Whether the Courts below by not appreciating
the material evidence and blanket denial of the
defendant including his signature on the
written statement on vakalatnama?
(3) Whether the Courts below have erred in law in
not noticing and not framing the issue
regarding the right of the property and status
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of the legitimacy of the children even in case
marriage void or voidable under the act?
(4) Whether the Courts below have erred in law in
ignoring unimpeachable document Ration Card
and Voters list which have come into existence
during the lifetime of deceased Halappa?
(5) Particularly, if the Courts below have not
examined the exact relationship that the
plaintiff had with the deceased Halappa, whose
brother is the defendant and more so when the
plaintiff no. 2 and 3 are the issues begotten to
Halappa through first plaintiff irrespective of
the status of first plaintiff as wife and they are
also entitled to a share in the properties of the
plaintiff."
3. Sri Laxman T. Mantagani, learned counsel for the
appellants and Smt. Pallavi S. Pachhapure, learned counsel
for respondent Nos.1 (A) to (H) have been heard on the
substantial question of law framed by this Court.
4. The parties herein are referred to as per their
ranking before the trial Court, for the sake of convenience.
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5. The family pedigree is as under:
Chanabasappa (Propositor)
1) Halappa 2) Mallappa 3) Basavarajappa 4) Shivajappa
(dead) @ Basappa
Muttavva (wife)
(Plff. No.1)
1) Channabasappa 2) Mallikarjun 3) Savita
6. Undisputed facts are that:
(i) The propositus Channabasappa died
leaving behind four sons, namely, Halappa,
Mallappa, Basavarajappa @ Basappa and
Shivajappa.
(ii) The sons of the deceased Channabasappa
in the year 1987, mutually partitioned the
suit property and ME.No.679 was duly
certified by the revenue authorities as per
Ex.P.1.
(iii) The suit properties fell to the share of the
deceased Halappa and since partition, the
deceased Halappa was in actual possession
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of the suit schedule property. Halappa died
on 30.01.1988.
(iv) ME.No.770 was certified by the revenue
officials entering the name of the plaintiffs
in the suit properties after the death of
Halappa.
(v) Defendant preferred an appeal before the
Assistant Commissioner, Haveri against the
certification of ME.No.770, stating that the
plaintiffs are not the legal heirs of the
deceased Halappa.
The trial Court by its judgment and decree held that the
plaintiffs claim to legal heirship undermined by discrepancy
in the property descriptions in ME entries (Exs.P-1 and P-6)
lack clarity and failure to include the necessary parties
created doubt about the plaintiffs' legal connection to
deceased Halappa, that the plaintiffs failed to provide
evidence establishing their ownership and possession of the
suit schedule property and held that the plaintiffs are not
entitled for the relief of declaration and permanent
injunction.
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7. In an appeal preferred by the plaintiffs before
the first appellate Court, the first appellate Court held that
the plaintiffs attempt to establish their relationship with
deceased Halappa was without substantial corroboration,
failed to establish the long term cohabitation with plaintiff
No.1 and deceased Halappa and held that Ex.P-8-voters
list, ration card-Ex.P-10 and compromise deed at Ex.P-11
were not sufficient to establish the marriage and
cohabitation, necessary to claim ownership and in the
absence of essential documents such as, birth certificate
and school records of plaintiff Nos.2 to 4 to support the
claim of paternity of Halappa. The first appellate concluded
that the suit schedule property did not exclusively fall to
the share of Halappa and dismissed the appeal.
8. Aggrieved by the dismissal of the suit and the
appeal, the second appeal by the plaintiffs.
9. The material aspect that has been produced by
the plaintiffs is the voters list at Ex.P-8, ration card at
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Ex.P-10 and compromise order sheet at Ex.P-11.
Defendant denied that plaintiff No.1 is the wife of Halappa
and plaintiff Nos.2 to 4 are the children of deceased
Halappa. The Courts below without considering the
presumptive value of the voters list, mutation entries
effected in the name of Halappa, ration card standing in the
name of the plaintiffs at an undisputed point of time, when
Halappa was alive and much prior to 1988 and compromise
petition entered between the plaintiffs and defendant by
way of an agreement which is at Ex.P-11, wherein the
defendant admitted the relationship between the plaintiffs
with that of the defendant, signature of defendant at
Ex.P.11 is marked as Ex.P.11(a). It is also material to note
that in the evidence of the defendant, the defendant gave a
blanket denial including his signature on the written
statement and the vakalatnama and thus, the denial to
Ex.P-11, cannot assume much importance. The Courts
below have failed to consider that unimpeachable document
ration card and voters list have evidentiary value under
Section 35 of the Indian Evidence Act, being of a
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presumptive value. Plaintiff No.1 by leading evidence has
supported her contention that she is the wife of deceased
Halappa and plaintiff Nos.2 to 4 are the children of Halappa.
10. Defendant on the other hand, though sought to
deny their relationship and contended that Halappa had a
wife by name Basavva, no material is forthcoming to
establish their contention. The defendant goes to the extent
of saying that Halappa was not married and had no issues.
Plaintiff No.1 by her testimony as PW.1 and from the cross-
examination led by the defendant nothing is elicited to
disbelieve the evidence of P.W.1 along with the evidence of
PW.1 corroborates the documentary evidence, namely,
Ex.P-8 voters list, ration card Ex.P-10 and the compromise
deed at Ex.P-11, the plaintiffs have established their
relationship with deceased Halappa. The reasoning
accorded by the Courts below to say that the essential
documents such as, birth certificate and school records
have not been placed to claim the paternity of Halappa
could not be a substantial reasoning of the trial Court to
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deny the claim of the plaintiffs. In the said aspect, the trial
Court and the first appellate Court have suffered from the
irregularity and the orders of the Court below suffers from
perversity and illegality which warrants interference by this
Court. Accordingly, the substantial questions of law framed
by this Court are answered in favour of the appellants. The
plaintiffs sought for declaration in respect of suit properties,
namely, landed properties situated at Nagalpur bearing Sy.
Nos.:
1) 57/1 measuring 3 acres 96 guntas - half
share 1 acres 22 guntas southern portion;
2) 46/2 measuring 1 acre 28 guntas;
3) 68 measuring 4 acres 07 guntas;
11. Learned counsel for the appellant would submit
that the suit properties mentioned in the plaint is not the
properties, which were allotted to the share of Halappa as
per Ex.P.1 and would contend that the plaintiffs are not
entitled for declaration of title for the property, which has
not been fallen to the share of Halappa. Ex.P.1-the
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mutation entry effected pursuant to the partition, having
not disputed by either of the parties, this Court is of the
considered view that in order to do substantial justice, it
would be appropriate to mould the relief, granting
declaration to the plaintiffs to the properties allotted to the
share of Halappa as per Ex.P.1 and this Court pass the
following:
ORDER
(i) The regular second appeal is hereby
allowed.
(ii) The impugned judgment and decree of the
Courts below are set aside and the suit of
the plaintiffs is decreed, the plaintiffs are
declared as owners of the property allotted
to the share of deceased Halappa as per
Ex.P.1 and the defendant is restrained from
interfering with the peaceful possession
and enjoyment of the suit schedule
properties.
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(iii) Decree to be drawn as per the order of this
Court and as per Ex.P.1.
Sd/-
JUDGE
MBM, CT: UMD
