Kashavva W/O. Lagmanna ... vs Devaki Alleging To Be W/O. ...
2023 Latest Caselaw 4367 Kant

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                                                            RSA No. 5446 of 2012



                                IN THE HIGH COURT OF KARNATAKA,

                                          DHARWAD BENCH

                              DATED THIS THE 13TH DAY OF JULY, 2023

                                               BEFORE
                           THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                            REGULAR SECOND APPEAL NO. 5446 OF 2012

                     BETWEEN

                           SMT. KASHAVVA
                           W/O LAGAMANNA HAMMANNAVAR,
                           AGE: 53 YEARS,
                           OCC: AGRICULTURE & HOUSEHOLD,
                           R/O: INGALI, TAL: HUKKERI,
                           DIST: BELAGAVI.

                                                                     ...APPELLANT

                     (BY SRI. RAMESH.N.MISALE, ADVOCATE)

                     AND

                            SMT. DEVAKI ALLEGED
                            W/O LAGAMANNA HAMMANNAVAR,
                            AGE: 53 YEARS,
                            OCC: AGRICULTURE & HOUSEHOLD,
        Digitally
        signed by           R/O: INGALI, TAL: HUKKERI,
        SUJATA
SUJATA  SUBHASH
SUBHASH PAMMAR
                            DIST: BELAGAVI.
PAMMAR Date:
        2023.07.15
        10:50:37 -
        0700

                                                                   ...RESPONDENT

                     (BY SRI. S.B.MANE FOR C/R, ADVOCATE)


                           THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
                     AND DECREE DTD: 07.03.2012 PASSED IN R.A.NO.364/2011 ON THE
                     FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AND ADHOC
                     DISTRICT JUDGE, HUKKERI, ALLOWING THE APPEAL BY SETTING
                     ASIDE THE JUDGMENT AND DECREE DTD: 11.11.2011 PASSED IN
                     OS.69/06 ON THE FILE OF THE SENIOR CIVIL JUDGE, HUKKERI, AT
                     HUKKERI, DISMISSING THE SUIT FILED FOR DECLARATION AND
                     CONSEQUENTIAL RELIEF OF INJUNCTION.
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                                           RSA No. 5446 of 2012




      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
28.06.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY COURT
DELIVERED THE FOLLOWING.


                       JUDGMENT

This appeal is filed under Section 100 of CPC, by

defendant challenging the judgment and decree passed by

the Fast Track court and Adhoc District Judge, Hukkeri, in

RA No.364/2011 dated 07.03.2012 and sought for

allowing the appeal by setting aside the impugned

judgment of the First Appellate Court by restoring the

judgment and decree passed by the trial Court.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. Brief facts of the case are as under:

This is a suit filed by the plaintiff seeking relief of

declaration that she is the legally wedded wife of

Lagamanna Appanna Hammannavar and sought injunction

against the defendant from causing obstruction and

interference in the peaceful possession and enjoyment of

RSA No. 5446 of 2012

the suit schedule ABC properties. Plaintiff asserted that

she is the legally wedded wife of Lagamanna and their

marriage was solmanised as per the customs and

traditions of their caste in Ingali village. It is also alleged

that after the marriage, she joined Lagamanna for leading

marital life and the society has recognized them as

husband and wife and the name of the plaintiff is

appearing in voters list, ration card, voters ID card as wife

of Lagamanna and after the death of Lagamanna, she

inherited the properties. She asserted that Lagamanna

has never married with the defendant and they never

resided as husband and wife. She also asserts that the

Society has not recognised Lagamanna and defendant as

husband and wife and after the death of Lagamanna, only

with an intention to grab his properties, she is asserting

that she is the wife of Lagamanna. She has also

contended that after the death of Lagamanna, defendant

has given an application before the Tahsildar for heirship

certificate which was objected by the plaintiff and hence,

direction was issued by Tahsildar to approach the Civil

RSA No. 5446 of 2012

Court. She has also asserted that defendant has got

entered her name in RS no.98/2B without any right, title

or interest. She further asserted that during the life time,

Lagamanna has transferred sum of his properties in her

name and she is absolute owner of these properties and

after passing order by Tahsildar, the defendant is

obstructing the plaintiff's possession over the suit schedule

property. Hence, the suit.

4. In pursuance of the summons, the defendant

has appeared and filed his written statements denying the

allegation and assertion made therein. She has admitted

that the suit properties were originally owned by

Lagamanna and she disputed the relationship of the

plaintiff as legally wedded wife of Lagamanna. She

asserted that her marriage with Lagamanna was

solmanised about 35 years back and she led the married

life with Lagamanna. According to defendant, plaintiff was

working as coolie in the land of Lagamanna and she

developed illicit relationship with Lagamanna, as a result,

for her maintenance Lagamanna has transferred some of

RSA No. 5446 of 2012

the properties which is not objected by the defendant.

She has also pleaded family details of Lagamanna and she

asserts that she is the daughter of the elder sister of

Lagamanna and her marriage with Lagamanna was

solaminsed along with the marriage of his brothers as per

the custom. She disputed other claims made by the

plaintiff and disputed the status of the plaintiff and sought

for dismissal of the suit. She has also sought a counter

claim claiming that she is the legally wedded wife of

Lagamanna and sought injunction against the plaintiff. The

counter claim is objected by plaintiff disputing the claim.

5. The Trial Court on the basis of the rival pleadings has framed the following issues:-

Issues

"1. Whether the plaintiff proves she is the legally wedded wife of deceased Lagamanna Appanna Hammannavar?

2. Whether the plaintiff proves she was in lawful possession and enjoyment of the suit schedule properties as on the date of suit?

3. Whether the plaintiff proves alleged interference?

RSA No. 5446 of 2012

4. Whether the defendant proves she is the legally wedded wife of Lagamanna Appanna Hammannavar?

5. Whether defendant proves she is the absolute owner and in possession of the suit property?

6. Whether the suit defendant proves there is no cause of action for this suit?

7. Whether the defendant proves that the plaintiff has paid proper court fee has not properly valued the suit?

8. Whether the defendant is entitled for compensatory cost of Rs.10,000/-?

9. Whether the plaintiff is entitled for declaratory relief as sought for?

10. Whether the plaintiff is entitled for permanent injunction as sought for?

11. What order or decree?"

6. The plaintiff got examined herself as PW1 and

placed reliance on 20 documents marked at Exs.P1 to P20.

Subsequently Ex.P21 to P24 was also marked by consent.

The defendant got examined herself as DW1 and 2

witnesses were examined as DW2 and DW3 and she

placed reliance on 4 documents marked at Exs.D1 to D4.

7. After hearing the arguments and after

appreciating the oral as well as documentary evidence, the

RSA No. 5446 of 2012

learned Civil Judge has answered issue nos.1, 2, 6, 7, 9

and 10 in the negative while issue nos.3, 4 and 5 were

answered in the affirmative and ultimately, dismissed the

suit.

8. Being aggrieved by this judgment and decree,

the plaintiff has filed RA no.364/2011 on the file of the

District Judge, Belgaum and matter came to transferred

Fast Track Court and Adhoc District Judge, Hukkeri, and

the learned District Judge after re-appreciating the oral as

well as documentary evidence, has allowed the regular

appeal by setting aside the judgment and decree of the

trial Court and decreed the suit by declaring that the

plaintiff is the legally wedded wife of the deceased

Lagamanna and injunction came to be issued against the

defendant and counter claim came to be dismissed. Being

aggrieved by this divergent finding, the defendant is

before this Court.

RSA No. 5446 of 2012

9. Heard the arguments advanced by the learned

counsel for the appellant as well as respondent. Perused

records.

10. This Court while admitting the appeal on

23.08.2013 has framed the following substantial question

of law:-

"Whether the lower appellate Court has rightly appreciated the evidence available on record while reversing the finding on issue Nos.1 and 2?"

11. The learned counsel for the appellant would

contend that admittedly, the defendant is the daughter of

elder sister of Lagamanna and he would contend that her

marriage was solmanised about 35 years aback along with

the marriage of other brothers of Lagamanna. He would

contend that plaintiff in her entire pleading, nowhere

pleaded as to when her marriage was solmanised, where it

was solmanised and who have attended the marriage. It

is further asserted that she has also not examined any of

the witnesses to show that Society has treated them as

RSA No. 5446 of 2012

husband and wife and even her brothers and sisters were

not examined in this regard. He would also contend that

no doubt certain records show her as wife of Lagamanna,

but, she had illicit relationship with Lagamanna and the

documents produced by the defendant would disclose that

she was married well in advance with Lagamanna and

as such, question of plaintiff claiming legally wedded wife

does not arise at all. He invite the attention of the Court

to various documents such as voters list and also evidence

of DW2 who is the brother of deceased Lagamanna. He

would further assert that cross examination of PW1

reveals that she does not know the name of her in

laws and if she is really married, she would have

disclosed the details in this regard. It is further asserted

that the trial Court has properly appreciated all these

aspects, but, the First Appellate Court has erroneously

reversed the finding by casting the entire burden on the

defendant to prove her case ignoring the fact that the

plaintiff has approached the Court and casting the

negative burden on the defendant is unwarranted.

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RSA No. 5446 of 2012

Hence, he would contend that the entire approach of the

learned District Judge is erroneous which has resulted in

miscarriage of justice. Hence, he would seek for allowing

the appeal by setting aside the impugned judgment and

decree of the Appellate Court by restoring the judgment

and decree of the trial Court.

12. Per contra, the learned counsel for the

respondent would contend that the trial Court has failed to

appreciate the oral and documentary evidence in proper

perspective. But, the First Appellate Court has rightly

appreciated and Exs.P11 and P12 which clearly disclose

the status of the plaintiff. It is asserted that the transfer

in the name of plaintiff was for getting the shares and

there is long cohabitation which establish the relationship

of husband and wife. He would also contend that

documents relied by the defendant are manipulated and as

such, the First Appellate Court has rejected the same and

evidence of DW3 was rejected by the trial Court itself and

statement of the deceased before Revenue Courts cannot

be ignored. Hence, he would contend that the trial Court

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RSA No. 5446 of 2012

has committed an error which is set right by the First

Appellate Court and as such, he would seek for dismissal

of the appeal.

13. Having heard the arguments and perusing the

records, it is evident that both the plaintiff and defendant

are claiming to be the legally wedded wife of the deceased

Lagamanna. It is admitted that the defendant is the

daughter of sister of Lagamanna. However, the plaintiff is

stranger to the Family of Lagamanna. It is further

admitted that suit schedule properties are owned by

Lagamanna. Defendant has also claimed counter claim

against the plaintiff which was decreed by the trial Court.

14. At the outset, plaintiff has filed a suit seeking

declaration of her status and injunction. Hence, the initial

burden is on the plaintiff to prove her case and she cannot

rely on the weaknesses of the defendant. The plaintiff

must succeed or fall on her own pleadings.

15. In the entire plaint, the plaintiff has nowhere

pleaded how many years back her marriage was

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RSA No. 5446 of 2012

solemnised and where exactly it was solemnised. The

date was also not pleaded. The defendant has also not

pleaded the date of her marriage with Lagamanna, but,

however, she has specially pleaded that her marriage was

solemnised about 35 years back infront of the house of

Lagamanna along with marriage of his three brothers.

16. The plaintiff has placed reliance on Ex.P10, but,

as rightly observed by the trial Court, Ex.P10 is a Xerox

copy of the ration card and hence, it is inadmissible in

evidence as no foundation was laid for leading the

secondary evidence. Ex.P11 is the document of voters list

for the year 1988 wherein the name of the plaintiff and

Lagamanna is appearing and plaintiff is shown as wife of

Lagamanna. Ex.P12 is also the voters list for the year

2002 wherein the name of Lagamanna and Devki is shown

at S.Nos.14 and 15 as husband and wife. But,

interestingly, in the same list, at Sl.No.696, the name of

defendant is appearing and she is shown to be the wife of

Lagamanna. Ex.P13 is the identify card issued by the

Election Commission and it does not have much relevancy.

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RSA No. 5446 of 2012

The other contention raised on behalf of the plaintiff is

regarding production of certain sale deeds from her

custody. But, mere production of the sale deeds from the

custody of the plaintiff cannot establish legal status and

defendant specifically asserted that plaintiff had illicit

relationship with Lagamanna. Apart from, that PW1 in her

cross examination is unable to say the name of her in-laws

or the family members of the deceased Lagamanna. It is

very strange as plaintiff claims to be the legally wedded

wife of Lagamanna and if she has led the married life with

Lagamanna for a considerable period, she must be

knowing her in-laws name as well as name of other family

members, but, that is not forthcoming. She is not even

able to say the date of death of Lagamanna. Further, she

claims that agricultural lands are situated in Hosur

Niravanimath and Sultanpur, but, the suit lands are

situated in Ingali village and only a house property

situated in Hosur village.

17. Apart from that, in her cross examination PW1

has admitted that she has got three sisters and two

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RSA No. 5446 of 2012

brothers and two sisters are married. Very interestingly

she has neither examined her sisters or brothers to prove

that her marriage was solemnised with Lagamanna as

claimed by her. In the plaint though she has not pleaded

regarding who has performed her marriage, but, in the

evidence, she claims that one Gurushantaswamy has

performed her marriage and she claims that he is no

more. But, nothing prevented her to examine his children

as she admitted that children are alive, to prove that

Gurushantaswamy was performing the marriages. She

has not even examined any single witness of the village to

show that all along she and Lagamanna were treated as

wife and husband by the society. When she claims to be

the wife of Lagamanna, she must be in a position to say as

to when marriages of brothers of Lagamanna were

solemnised. But, she pleads ignorance in this regard. She

admits that defendant is the daughter of sister of

Lagamanna.

18. The plaintiff only placing her evidence of certain

entries in the voters list and sales certificates issued by

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RSA No. 5446 of 2012

sugar factory as well as Election ID card. But, when she is

pleading that society has treated her as legally wedded

wife of Lagamanna, she could have examined any

independent witness to substantiate this aspect, but, no

such attempts has been made. Even she has not

examined her brothers and sisters to prove the factum of

the alleged marriage.

19. The defendant was examined and DW1 and she

has asserted that her marriage with Lagamanna was

solemnised about 35 years back in Ingali in the house of

Lagamanna along with the marriage of his brothers. She

has disputed the claim of the plaintiff and asserted that

plaintiff was having illicit relationship with Lagamanna.

Ex.D15 is the ID Card issued in the name of defendant

wherein her status is also shown as wife of Lagamanna

and this is for the year 1994. In Ex.D16 also her name

shown to be the wife of Lagamanna. Ex.D18 was ignored

by the First Appellate Court as there are certain insertions.

But, however, Ex.19 is material documents which is house

hold ration card wherein the names of Lagamanna and

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RSA No. 5446 of 2012

other family members including the name of the defendant

appears there. These entries in Ex.D19 were on the basis

of the information provided by the Karta of the family, i.e.

Appanna who was the father of Lagamanna and status of

the defendant is shown as daughter-in-law. Ex.D20 is a

voters list for the year 1983 and at Sl.No.17, the name of

all the family members as referred in Ex.D19 has appeared

and the name of defendant is shown as wife of Lagamanna

and first name is shown as Appanna, i.e. the father of

Lagamanna. Merely because of the name of defendant is

not shown below the name of Lagamanna, it cannot be

presumed that she is not belonging to the family as in

between the name of Lagamavva who is the wife of

Bheema, the other brother of Lagamanna entered. Again it

is followed by the names of other two brothers by name

Maruti and Kallappa who were residing separately in house

no.17(a) and 17(b). Hence, Exs.D19 and D20 clearly

disclose that since prior to 1980 itself, defendant is treated

as wife of Lagamanna. The documents produced by the

plaintiff are subsequent to 1988. But, the documents

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RSA No. 5446 of 2012

produced by the defendant were prior to 1980. Even

Ex.D31 disclose that it is enumeration form submitted by

the propositus Appanna in the year 1975 wherein the

name of defendant is shown to be the wife of Lagamanna.

20. Further, this evidence of the defendant is again

corroborated by the evidence of DW2 who is none other

than the brother of Lagamanna. He has specifically stated

that the marriage of defendant with Lagamanna was

solemnised about 20 years back and at the same time, his

marriage was solemnised. The status of DW2 that he is

the brother of Lagamanna is not disputed. The statement

or opinion of PW2 who was the member of the family of

Lagamanna has relevancy under Section 50 of the Indian

Evidence Act (for short hereinafter referred to as "the

Act"). Section 50 of the Act reads as under:-

"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, or any person who, as a member of the family or otherwise, has

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RSA No. 5446 of 2012

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 prosecution under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)."

21. In the instant case, though DW2 was cross

examined, his evidence was not impeached. Further, his

relationship with the deceased Lagamanna is undisputed

and he has got special knowledge regarding existence of

the relationship between the defendant and Lagamanna.

Hence, under Section 50 of the Act, the opinion of DW2 in

respect of relationship becomes a relevant factor. Though

it is open for the plaintiff to place material evidence to

overcome Section 50 of the Act. she has not placed any

material except producing certain records in the form of

voters list after 1988. But, the documents produced by

the defendant establish that her status was recognised as

the wife of Lagamanna and daughter-in-law of the father

of Lagamanna by name Appanna since 1980 itself. Even

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RSA No. 5446 of 2012

in 1975 itself, the father Appanna has submitted

enumeration form disclosing her status.

22. On the contrary, the plaintiff has not even

bothered to examine any villagers to show that society has

recognised herself as the wife of Lagamanna and even no

attempt has been made to examine her brothers or sisters

to prove factum of the marriage. In the absence of any

other material evidence, the evidence led by the defendant

especially of DW2 carries more weight and becomes

relevant under Section 50 of the Act to prove the status of

the defendant rather than the status of the plaintiff.

23. The First Appellate Court ignored all these

material aspects and interestingly, all along the burden

was casted on the defendant to prove her case ignoring

the fact that the plaintiff has approached the Court.

Unless the plaintiff discharges her burden, the burden

cannot be shifted on the defendant to prove the negative.

The learned counsel for respondent contended that the

statement before revenue authorities becomes relevant

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RSA No. 5446 of 2012

wherein the Lagamanna has disclosed the name of the

plaintiff as his wife. But, same holds good for defendant

also as defendant was also treated as wife of Lagamanna

prior to 1980 itself and the documents relied by the

plaintiff were after 1988. She does not know when her

marriage was solemnised and even if she is deemed to

have been married Lagamanna, it becomes void marriage

in view of the status of the defendant being established

she being the first married wife of Lagamanna.

24. The learned counsel for the appellant in this

context has placed reliance on a decision of Hon'ble

Supreme Court reported in (2009) 15 SCC 184

(M.YOGENDRA AND OTHERS VS. LEELAMMA N. AND

OTHERS) wherein the Hon'ble Supreme Court has

considered the relevancy of relationship of the marriage

between two persons with reference to Section 50 and 114

of Evidence Act wherein it is observed as under:-

"B. Evidence Act, 1872- Ss. 50 and 114- Relationship of marriage between two persons-Evidence which can be relied upon, for proof of-Held, for arriving at a conclusion

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RSA No. 5446 of 2012

regarding whether valid marriage has been performed or not, court entitled to consider circumstances thereof- Where witnesses to marriage or documentary evidence to prove marriage is not available; information of those persons who had occasion to see conduct of parties may testify-S. 50, Evidence Act in that sense is an exception to other provisions of the Act-Family Law-Marriage- Hindu Law- Marriage."

25. Further in para no.20 of the said judgment, the

Hon'ble Apex Court has held that evidence can be adduced

in a different forms. But, the information evidence may be

one of them. It is further observed that for the purpose of

arriving at a conclusion as to whether the valid marriage

has been performed or not, the Court would be entitled to

consider the circumstances thereof. It is further observed

that there may be cases where witnesses of the marriage

are not available and there may also be cases where the

documentary evidence to prove the marriage is not

available. But, no such case is made out by the plaintiff.

26. The learned counsel for the respondent would

contend that the long standing relationship between

Lagamanna and plaintiff establish the legal status. But,

the same rule is also applicable to defendant. As

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RSA No. 5446 of 2012

documents produced by the defendant disclose that her

documents are prior to that of the plaintiff. No doubt

there is presumption in favour of the marriage when man

and woman are shown to have cohabited continuously for

a number of years. However, this presumption is

rebuttable and when the defendant has also placed

evidence to show that she has cohabitated with

Lagamanna prior to the plaintiff itself, then burden shifts

on the plaintiff to substantiate her contention of proving

legal marriage as law does not favour concubinage. In

this context, the learned counsel for the appellant has

placed reliance on a decision reported in ALAGAMMAL AND

OTHERS Vs. RAKKAMMAL reported in AIR 1982 MADRAS

354. He has also placed reliance on a decision of the

Andhra Pradesh High Court in DULAVAYI

NAGARAJAMMA Vs. STATE BANK OF INDIA AND

OTHERS reported in AIR 1961 AP 320 wherein in it is

observed that the presumption of long cohabitation is

rebuttable and where there are circumstances which

weaken or destroy the said presumption, it is required to

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RSA No. 5446 of 2012

be ignored. The said principles are directly applicable to

the case in hand as the documents produced be the

defendant would take away the presumption in favour of

the plaintiff and the presumption is more weighing in

favour of the defendant rather than the plaintiff.

27. The trial Court has appreciated all these aspects

and has rightly dismissed the suit and granted decree in

favour of the defendant pertaining to counter claim. But,

the First Appellate Court has failed to appreciate the oral

and documentary evidence in proper perspective and went

on in a negative way by casting burden on the defendant

to prove her case rather than the plaintiff to establish her

case. The entire approach of the Appellate Court is

erroneous, arbitrary and hence, the judgment and decree

of the First Appellate Court calls for interference. The First

Appellate Court has failed to appreciate the evidence

available on record while reversing the finding on issue

nos.1 and 2.

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RSA No. 5446 of 2012

28. As such, the substantial question is answered in

the negative and as such, appeal needs to be allowed.

Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed.

The impugned judgment and decree passed by First Appellate Court is set aside.

The judgment and decree passed by the trial Court is restored.

Sd/-

JUDGE

Vmb