Karnataka High Court
Smt.Gangawwa W/O Basavaraj ... vs Dyamawwa W/O Basavaraj @ Basappa ... on 11 July, 2023
Bench: Anil B Katti
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RSA No. 5391 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO. 5391 OF 2009
BETWEEN:
SMT.GANGAWWA W/O. BASAVARAJ KURSHANNAVAR,
AGE: 46 YEARS, OCC:HOUSE HOLD WORK,
R/O: KOTABAGI VILLAGE, DIST and TQ: DHARWAD-580001.
...APPELLANT
(BY SRI. SHRIKANT T. PATIL & ROHIT S. PATIL, ADVOCATES)
AND:
1. DYAMAWWA W/O.BASAVARAJ
Digitally @ BASAPPA KURSHANNAVAR,
signed by
POOJA POOJA DEELIP AGE: 48 YEARS, OCC: HOUSE HOLD,
DEELIP SAVANUR
SAVANUR Date:
2023.07.13 R/O. LOKUR VILLAGE, TQ & DIST: DHARWAD-580001.
11:17:02 -0700
2. YELLAPPA S/O. BASAVARAJ
@ BASAPPA KURSHANNAVAR
AGE: 31 YEARS, OCC:AGRICULTURE
R/O. LOKUR VILLAGE, TQ & DIST: DHARWAD-580001.
3. NARASINGAPPA S/O BASAVARAJ
@ BASAPPA KURSHANNAVAR
AGE: 26 YEARS, OCC:AGRICULTURE
R/O LOKUR VILLAGE, TQ and DIST: DHARWAD-580001.
4. MADIVALAPPA S/O BASAVARAJ
@ BASAPPA KURSHANNAVAR
AGE: 24 YEARS, OCC: AGRICULTURE
R/O. LOKUR VILLAGE TQ and DIST: DHARWAD-580001.
...RESPONDENTS
(BY SRI. B.K. MALLIGAWAD, ADVOCATE FOR R1 - R2)
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RSA No. 5391 of 2009
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE PASSED BY THE COURT OF PRL.
DIST. JUDGE, DHARWAD, IN RA.NO:14/2007 DATED:
18/06/2009 REVERSING THE JUDGMENT AND DECREE PASSED
BY THE COURT OF THE CIVIL JUDGE (SR.DN) & C.J.M.
DHARWAD DATED 28/02/2007 PASSED IN O.S.NO:200/2001
AND ALLOW THE APPEAL WITH COST.
THIS RSA COMING ON FOR FURTHER HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 13.04.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/defendant feeling aggrieved by judgment and
decree passed by the First Appellate Court on the file of Prl.
District and Sessions Judge, Dharwad in R.A.No.14/2007, dated
18.6.2009, preferred this appeal.
2. Parties to appeal are referred with their ranks as
assigned before Trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that plaintiff No.1 is
legally wedded wife of Basavaraj W/o Madivalppa Kurshannavar
of Lokur Village and out of the wedlock plaintiff Nos.2 to 4 are
born to them. The husband of first plaintiff died on 23.1.1998
leaving behind him the plaintiffs as only legal heirs. The suit
property bearing block No.14, measuring 3 acres 9 guntas out
of 12 acres 36 guntas has fallen to the share of deceased
RSA No. 5391 of 2009
Basavaraj in the partition with his brothers. On the death of
Basavaraj, plaintiffs have succeeded to suit property. On the
basis of order passed by Assistant Commissioner, in RTS
No.128/2001, dated 27.7.2001, the defendant started asserting
her right over suit property and caused obstruction to the
enjoyment of suit property by plaintiffs. Therefore, plaintiffs
were constrained to institute suit on hand for the relief claimed
in suit.
4. In response to suit summons defendant appeared
through counsel and filed written statement contending that
she is wife of deceased Basavaraj and their marriage took place
on 15.5.1977 in front of the house of bridegroom at Lokur,
since then they were residing together and led marital life in
the house of Basavaraj. Plaintiffs field O.S.No.378/1999 on the
file of II Addl. Civil Judge (Jr.Dn), Dharwad, which came to be
dismissed. Plaintiffs have no any right, title, interest over the
suit property and they are unconnected to their family.
Therefore, prayed for dismissal of the suit.
5. The trial Court has framed necessary issues.
Plaintiffs to prove their case relied on the evidence of PWs.1 to
RSA No. 5391 of 2009
4 and documents as per EXs.P.1 to 10. Defendant relied on
evidence of DWs.1 to 4 and documents Exs.D.1 to 15.
6. Plaintiffs challenged the said judgment and decree
of trial Court before the First Appellate Court on the file of Prl.
District and Sessions Judge, Dharwad in R.A.No.14/2007. The
First Appellate Court after re-appreciation of evidence by
judgment dated 18.6.2009, reversed the finding of trial Court
and allowed the appeal of the plaintiffs by setting side the
judgment and decree of the trial Court. Consequently, decreed
the suit of plaintiffs.
7. Appellant/defendant challenging divergent finding
recorded by the First Appellate Court contending that contrary
finding recorded by the First Appellate Court on the marital
status of first plaintiff with deceased Basavaraj and the plaintiff
Nos.2 to 4 being their children is against the law and evidence
on record. The First Appellate Court has not properly
appreciated the evidence of D.Ws.1 to 4 and documents at
Exs.D.1 to 15. There was no reason for the First Appellate
Court to disbelieve certificate issued by Head Master,
Government Higher Primary School, Lokur, Ex.D.10 wherein
name of Basavaraj not shown being the father of respondent
RSA No. 5391 of 2009
No.4/Madivalappa. The First Appellate Court has erroneously
disbelieved the evidence of D.W.2 father of defendant and two
witnesses D.Ws.3 and 4 to substantiate the claim of defendant
that she is wife of deceased Basavaraj. The observations and
finding recorded by the First Appellate Court is not based on
the legal evidence on record. Therefore, prayed for allowing the
appeal and to set aside the judgment and decree of the First
Appellate Court. Consequently to restore the judgment and
decree of the trial Court.
8. In response to notice of appeal, respondent
appeared through counsel.
9. This Court, by order dated 20.7.2009 admitted the
appeal and framed following substantial question of law for
consideration.
"Whether the lower appellant court is
justified in passing the impugned judgment
without considering the evidence of P.W.3
and other documentary evidence on record"
10. Heard arguments of both sides.
RSA No. 5391 of 2009
11. On careful perusal of oral and documentary
evidence placed on record by parties to the suit, it would go to
show that the first plaintiff claiming to be the wife of deceased
Basavaraj and plaintiff Nos.2 to 4 are born to them out of the
said wedlock. The husband of the first plaintiff Basavaraj died
on 23.1.1998 leaving behind the plaintiffs as only legal heirs.
The suit property has fallen to the share of deceased Basavaraj
in the partition between his brothers and on death of
Basavaraj, plaintiffs have succeeded to the suit property.
Whereas defendant denied the marital status of plaintiff No.1
with deceased Basavaraj and plaintiff Nos.2 to 4 are born to
them. It is the case of defendant that she is wife of the
deceased Basavaraj and their marriage took place on
15.5.1977 in front of the house of bridegroom at Lokur village,
since then they are residing together and led marital life in the
house of deceased Basavaraj. The husband of defendant
Basavaraj died on 23.1.1998. Therefore, the initial burden is on
plaintiffs to prove that the first plaintiff is the wife of deceased
Basavaraj and plaintiff Nos.2 to 4 are born to them out of the
said wedlock.
12. The first plaintiff apart from her own evidence as
P.W.1, relied on the evidence of her mother-in-law PW.2
RSA No. 5391 of 2009
Smt.Gouravva. PW.3. Gangappa and PW.4 Madivalappa are the
two independent witnesses, who speak on the marital status of
deceased Basavaraj and plaintiff Nos. 2 to 4 being their
children. In this context of the matter when the Court is called
upon to form opinion on relationship Section 50 of the Indian
Evidence Act will have to be considered. It is profitable to refer
Section 50 of the Indian Evidence Act for ready reference,
which reads as follows:
50. Opinion on relationship, when
relevant. When the Court has to form an
opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as
to the existence of such relationship, of any
person who, as a member of the family or
otherwise, has special means of knowledge on
the subject, is a relevant fact:
Provided that such opinion shall not be
sufficient to prove a marriage in proceedings
under the Indian Divorce Act, 1869 (4 of 1869),
or in prosecutions under section 494, 495, 497
or 498 of the Indian Penal Code (45 of 1860).
In the present case, proceedings have been initiated to enforce
civil right of the parties and the proceedings are not under the
RSA No. 5391 of 2009
Indian Divorce Act or any of the provisions of I.P.C. The relief
of declaration sought for establishment of marital status of
plaintiff No.1 with deceased Basavaraj has to be appreciated on
the basis of oral and documentary evidence tendered by
plaintiffs.
13. The first plaintiff PW.1 during the course of her
evidence has reiterated the pleadings in the plaint that she is
wife of deceased Basavaraj and their marriage took place 25
years back. The marriage was performed in her house and one
Channabasayya Hiremathswami has performed her marriage.
The first son was born to her seven years after the marriage.
PW.2 Gouravva is the mother-in-law of plaintiff No.1 and she
has vouchsafed the evidence of PW.1 regarding marital status
of the first plaintiff with her son Basavaraj and plaintiff Nos.2 to
4 are born to them out of the said wedlock. This evidence of
PW.2 being the family members of Basavaraj in terms of
Section 50 of the Indian Evidence Act is relevant fact and
naturally has special means of knowledge on the subject
marital status of the first plaintiff with deceased Basavaraj. The
evidence of PWs.3 and 4, two independent witnesses are
resident of Lokur village and they have also deposed about the
RSA No. 5391 of 2009
marital status of the first plaintiff with deceased Basavaraj and
plaintiff Nos. 2 to 4 are born to them.
14. As against the said evidence, the defendant relied
on her own evidence of D.W.1 and that of her father D.W.2 and
two other witnesses D.Ws.3 and 4. The oral evidence of PWs.1
to 4 and D.Ws.1 to 4 would go to show that they have asserted
their respective stand on the issue of martial status of deceased
Basavaraj. When there is oath against oath evidence, the same
has to be appreciated with touchstone of preponderance of
probabilities along with the documents relied by the parties to
the suit.
15. It is the contention of defendant that the first
plaintiff is wife of Hanumanthappa Yenagi, plaintiff Nos.2 and 3
are born to them. However, the defendant apart from Ex.D.12
the marriage invitation card of Yellappa and Narasingappa has
not produced any evidence on record. It is true that name of
Basavaraj is not shown as their father. However, the defendant
has not produced any document to show that plaintiff Nos.2
and 3 were born to Hanumanthappa Yenagi or at any
undisputed point of time, they themselves declared to be the
sons of Hanumanthappa Yenagi. Plaintiffs have produced
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RSA No. 5391 of 2009
electoral card Ex.P.2 issued on 29.8.1992, wherein name of
husband of the first plaintiff is shown as Basavaraj.
Indisputably, Basavaraj died on 23.1.1998. The deceased
Basavaraj during his life time never questioned correctness of
electoral card Ex.P.2, which was recorded on the basis of
information of his mother Gouravva P.W.2, who has been
examined in this case. The school leaving certificate of plaintiff
Nos.3 and 4 are produced as per Exs.P.3 and 4. The said
documents would go to show that plaintiff No.3 Madivalappa
born on 1.7.1987 and his date of birth is recorded as
30.6.1983. The school leaving certificate of plaintiff No.4 would
go to show that plaintiff No.4 born on 1.6.1985. The deceased
Basavaraj from the year 1985 till his death in 1998 has not
denied the status of plaintiff Nos.3 and 4 are born to him and in
the school leaving certificate, their father name is shown as
Basavaraj. The said entries are made much prior to the dispute
between the plaintiffs and defendant. The birth certificate as
per Ex.P.5 would go to show that the first plaintiff delivered
male child on 13.3.1985 and Ex.P.6 speaks about the first
plaintiff delivered male child on 20.4.1987. Both birth
certificates were issued by doctor of Primary Health Centre,
Uppin Betageri. The document at Ex.P.8 ration card would go to
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RSA No. 5391 of 2009
show that name of Basappa and his wife Dyamavva with his
two sons Narasinga and Madivalappa. The photograph of
deceased Basavaraj is affixed with seal and signature of
Thasildar, Dharwad. This document would go to show that
Basavaraj with his wife/the first plaintiff and two children were
residing together and the said ration card Ex.P.8 has not been
challenged by the Basavaraj during his life time. The above
referred documents by plaintiffs came in existence at
undisputed point of time and correctness of the same has not
been challenged by the deceased Basavaraj during his life time.
Therefore, the same will have to be accepted.
16. The first defendant apart from producing Ex.D.1
marriage invitation card has not produced any other evidence
to establish her relationship with deceased Basavaraj. The list
of gift produced at Ex.D.13 said to have been prepared at the
time of their marriage. However, it was suggested to DW.2 in
the cross examination that the name of D.W.2 himself has been
written and on this DW.2 has given evasive reply. The another
document relied by the defendant is Ex.D.12 marriage
invitation card of Yellappa and Narasingappa. It is the
contention of the defendant that the name of Basavaraj is not
shown being their father. The invitation card Ex.D.12 would go
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RSA No. 5391 of 2009
to show that it was printed in the name of Smt.Gangamma
Yellappa Kanakannavar. It is pertinent to note, by that time the
dispute has arose between the first plaintiff and defendant
regarding their marital status with deceased Basavaraj. The
non-mentioning of name of Basavaraj being the father of
Yellappa and Narasingappa in the marriage invitation card
Ex.D.12 could have been explained only by Smt.Gangamma
Yellappa Kanakannavar or any of the family member. However,
the defendant offers no any explanation or examined any
witnesses to prove the said fact. The documents at Exs.D.5, 9
and 10 cannot be of any much assistance to the case of
defendant to establish that the first plaintiff was married to
Hanumanthappa Yenagi.
17. The defendant also relied on order sheet Ex.D.7 and
certified copy of plaint Ex.D.8, the suit filed by first plaintiff
along with her two children in O.S.No.378/1998 against the
brothers of her husband for the relief of declaration and
consequential relief of injunction. The said suit came to be
dismissed for non-prosecution. On perusal of certified copy of
plaint, it would go to show that marital status of plaintiff No.1
with Basavaraj was not at issue and suit came to be dismissed
for non prosecution. Therefore, it is evident that no any finding
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RSA No. 5391 of 2009
has been recorded in the said suit on the marital status of
plaintiff No.1 with deceased Basavaraj.
18. The another contention of defendant is that
Assistant Commissioner has directed to mutate the name of
defendant in the RTC. The basis for such order is the dismissal
of O.S.No.378/1998 Ex.D.4. The said suit is admittedly for the
relief of declaration and consequential relief of injunction. The
marital status of plaintiff No.1 with deceased Basavaraj was
not involved in the said suit. The suit came to be dismissed for
non-prosecution as per Ex.D.7. The said order Ex.D.4 will not
confer any status of defendant being the wife of deceased
Basavaraj. Therefore, considering oral and documentary
evidence placed on record by the parties to the suit, the
evidence of plaintiff and documents referred above probabilises
the case of plaintiffs that plaintiff No.1 is wife of the deceased
Basavaraj and plaintiff Nos.2 and 4 are their children.
19. Indisputably, the suit property originally belongs to
deceased Basavaraj which has fallen to his share in the
partition between his brother. On his death, the first plaintiff
being wife and plaintiff Nos.2 to 4 being children succeeded to
property left behind the deceased Basavaraj. The RTC entries
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RSA No. 5391 of 2009
in Ex.D.3 based on M.E.No.3335 Ex.D.2 without the plaintiffs
being parties to the said proceedings cannot be said as
sufficient evidence to hold that the defendant has acquired any
title or interest over the suit property. The suit of plaintiff in
OS.No.378/1998 is for seeking declaration and consequential
relief of injunction against the co-owner and there was no any
issue of status of the first plaintiff being the wife of deceased
Basavaraj, so also plaintiff Nos.2 to 4 being their children was
not at all involved. Therefore, it is only the plaintiffs, who are
entitled to succeed to the right, title, interest left behind by the
deceased Basavaraj over the suit property by virtue of
succession and the possession of plaintiffs over suit property
will have to be upheld. The trial Court has not adverted to the
material evidence on record in deciding the martial status of
plaintiff No.1 with deceased Basavaraj and plaintiff Nos. 2 to 4
born to them out of the said wedlock. The First Appellate Court
has rightly re-appreciated the evidence on record and has
arrived to just and proper conclusion in holding that plaintiffs
by evidence on record established the marital status of the first
plaintiff with deceased Basavaraj and plaintiff Nos.2 to 4 are
born to them out of the said wedlock. The said finding recorded
by the First Appellate Court is based on material evidence on
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RSA No. 5391 of 2009
record and the same does not warrant any interference.
Accordingly, substantial question of law is answered in the
affirmative. Consequently, proceeded to pass the following:
ORDER
Appeal filed by appellant/defendant is hereby dismissed.
The judgment of the First Appellate Court on the file of
the Prl. District and Sessions Judge, Dharwad in
R.A.No.14/2007, dated 18.6.2009, is confirmed.
Office is directed to transmit TCRs forthwith along with
copy of this judgment.
(Sd/-)
JUDGE
Vb/-
