Karnataka High Court
Channaveerappa @ Tirakappa vs Smt Nagamma W/O Basanagouda Patil on 28 July, 2023
Bench: Rajendra Badamikar
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RSA No. 2299 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 2299 OF 2007
BETWEEN
1. CHANNAVEERAPPA @ TIRAKAPPA
S/O HANUMANTAPPA TOTAD @ PATIL
SINCE DECEASED BY HIS LRS.
1.A SMT. NAGARATNA W/O UJJAPPA KALAPPANAVAR
AGE: 42 YEARS, OCC: HOUSEHOLD,
R/O: ALADAKATTI-581115,
TQ: RANEBENNUR, DIST: HAVERI.
1.B SMT. MANJULA W/O MAHESHAPPA BANAKAR
AGE: 39 YEARS, OCC: HOUSEHOLD,
R/O: ALADAKATTI-581115,
TQ: RANEBENNUR, DIST: HAVERI.
Digitally
signed by
SUJATA 1.C SMT. BASAMMA W/O BASAVARAJ KADABAL
SUJATA SUBHASH
SUBHASH PAMMAR
PAMMAR Date:
AGE: 36 YEARS, OCC: HOUSEHOLD,
2023.07.28
13:23:30 - R/O: HOLALU VILLAGE-583219,
0700
TQ: HUVINAHADAGALI, DIST: HAVERI.
1.D SMT. SAVITRI W/O HARISH BATTIKOPPA
AGE: 34 YEARS, OCC: HOUSEHOLD,
R/O: BILLALLI VILLAGE-581115,
TQ: RANEBENNUR, DIST: HAVERI.
1.E SMT. SHOBHA W/O PRABHAKAR BATTIKOPPA
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O: BATTIKOPPA-581115,
TQ: RANEBENNUR, DIST: HAVERI.
1.F SIDDALINGAPPA S/O CHANNAVEERAPPA TOTAD @ PATIL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: CHALAGERI-581115,
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RSA No. 2299 of 2007
TQ: RANEBENNUR, DIST: HAVERI.
2. SMT. GANGAWWA W/O CHANNAVEERAPPA
@ TIRAKAPPA TOTAD @ PATIL,
AGED ABOUT 57 YEARS,
R/O CHALAGERI VILLAGE,
RANEBENNUR TALUK,
HAVERI DISTRICT.
3. SMT. UMA W/O LATE SANJAYA TOTAD
AGED ABOUT 33 YEARS,
R/O: UMAROKARAGALLI,
UTTARESHWARAPETH,
KOLLAPUR,
MAHARASTRA STATE.
4. KUMARI. TRIVENI D/O LATE SANJAYA TOTAD
MINOR REP.BY HER NATURAL GUARDIAN MOTHER
SMT.UMA W/O LATE SANJAYA TOTAD,
R/O: UMAROKARAGALLI,
UTTARESHWARAPETH,
KOLLAPUR,
MAHARASTRA STATE.
5. VIJAYA S/O BASAVARAJ @ BASANAGOUDA TOTAD @
PATIL
AGED ABOUT 41 YEARS,
OCC: MEDICALPRACTITIONER,
R/O: UMAROKARAGALLI,
UTTARESHWARAPETH,
KOLLAPUR,
MAHARASTRA STATE.
6. AJAYA S/O BASAVARAJ @ BASANAGOUDA TOTAD
@ PATIL, AGED ABOUT 38 YEARS,
OCC: SERVICE,
R/O: UMAROKARAGALLI,
UTTARESHWARAPETH,
KOLLAPUR,
MAHARASTRA STATE.
...APPELLANTS
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RSA No. 2299 of 2007
(BY SRI. S.G.KADADAKATTI FOR A1(A TO F), ADVOCATE)
AND
1. SMT. NAGAMMA W/O BASANAGOUDA PATIL
MAJOR, OCC: HOUSEHOLD,
R/O: YELAVATTI, HARIHAR TALUK,
DAVANGERE DISTRICT.
2. SRI. SHIVANAGOUDA S/O BASANGGOUDA PATIL
MAJOR.OCC: STUDENT,
R/O YELAVATTI,
HARIHAR TALUK,
DAVANGERE DISTRICT.
3. SHAMANAGOUDA S/O BASANAGOUDA PATIL
MAJOR, OCC: STUDENT,
R/O: YELLAVATTI,
HARIHAR TALUK,
DAVANGERE DISTRICT.
4. HIRIYAMMA W/O C. BENAKAPPA
SINCE DECEASED BY HER LEGAL HEIRS.
4.A AKKANAGAMMA C.B. D/O C BENAKAPPA
AGED ABOUT 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: D.NO.1774/18, 4TH CROSS,
SIDDAVEERAPPA LAYOUT,
DAVANAGERE-577504.
4.B RAJESHWARI C.B . D/O C BENAKAPPA
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK,
R/O: D.NO.1774/18, 4TH CROSS,
SIDDAVEERAPPA LAYOUT,
DAVANAGERE-577504.
4.C ANNAPURNA C.B . D/O C BENAKAPPA
AGED ABOUT 52 YEARS, OCC: HOUSEHOLD WORK,
R/O: D.NO.1774/18, 4TH CROSS,
SIDDAVEERAPPA LAYOUT,
DAVANAGERE-577504.
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RSA No. 2299 of 2007
4.D NAGARAJ C.B . S/O C BENAKAPPA
AGED ABOUT 50 YEARS, OCC: PRIVATE SERVICE,
R/O: D.NO.1774/18, 4TH CROSS,
SIDDAVEERAPPA LAYOUT,
DAVANAGERE-577504.
5. SMT. NINGAMMA W/O LATE C. BASALINGAPPA
SINCE DECEASED BY HER LEGAL HEIRS.
5A RAVISHANKAR C.B S.O LATE BASALINGAPPA
AGED ABOUT 64 YEARS, OCC: RETIRED,
R/O NO.:1813/43B, 1ST FLOOR, 9 TH CROSS,
TEACHERS COLONY, BAPUJI VIDYANAGAR,
DAVANGERE-577405.
5.B C.B.SHIVAMURTHY S/O LATE C. BASALINGAPPA
SINCE DECEASED BY HIS LEGAL HEIRS.
5.B(I) SMT. SHASHIKALA C.B. W/O LATE C.B.SHIVAMURTHY
AGED ABOUT 54 YEARS, OCC: HOUSEWIFE,
R/O NO.7114, SUMUKH NILAY,
VINAYAK NAGAR, 1ST CROSS ROAD,
TARIKERE-577228,
DIST: CHIKKAMAGALURU.
5.B(II) KUM. APPORVA C.S. D/O LATE C.B.SHIVAMURTHY
AGED ABOUT 26 YEARS, OCC: PRIVATE WORK,
R/O NO.7114, SUMUKH NILAY,
VINAYAK NAGAR, 1ST CROSS ROAD,
TARIKERE-577228,
DIST: CHIKKAMAGALURU.
5.B(III) ANUP C.S. S/O LATE C.B.SHIVAMURTHY
AGED ABOUT 24 YEARS, OCC: PRIVATE WORK,
R/O NO.7114, SUMUKH NILAY,
VINAYAK NAGAR, 1ST CROSS ROAD,
TARIKERE-577228,
DIST: CHIKKAMAGALURU.
5.C C.B.LAXMIKANT S.O LATE C.B.BASALINGAPPA
SINCE DECEASED BY HIS LRS.
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RSA No. 2299 of 2007
5C(I) SMT. RENUKA I.P. W/O LATE C.B.LAXMIKANT
AGED ABOUT 54 YEARS, OCC: SERVICE,
R/O: A-24, SWAMI VIVEKANANDA EXTENSION,
BEHIND RAMAKRISHNA SCHOOL,
SHIVAMOGGA-577205.
5C(II) SMT. SUSHIMTA C.L. D/O LATE C.B.LAXMIKANT
W/O VIJAY, AGED ABOUT 26 YEARS,
OCC: HOUSEWIFE,
R/O: A-24, SWAMI VIVEKANANDA EXTENSION,
BEHIND RAMAKRISHNA SCHOOL,
SHIVAMOGGA-577205.
5.C(III) TARUN S/O LATE C.B.LAXMIKANT
AGED ABOUT 24 YEARS,
OCC: STUDENT,
R/O: A-24, SWAMI VIVEKANANDA EXTENSION,
BEHIND RAMAKRISHNA SCHOOL,
SHIVAMOGGA-577205.
5.D C.B.MANJUNATH S/O LATE BASALINGAPPA
AGED ABOUT 56 YEARS, OCC: AGRICULTURE,
R/O: NEAR POLICE STATION, SIRIGERI-577541,
CHITRADURGA TQ AND DIST.
5.E C.B.NIRANJAN S/O LATE BASALINGAPPA
AGED ABOUT 54 YEARS, OCC: PRIVATE SERVICE,
R/O: C/O LATE VEERABHADRAYYA,
D.NO: 209/4, HARSHITA NILAY,
KAKOLU ROAD, RAJANAKUNTE VILLAGE,
BENGALURU NORTH-560004.
5.F SMT. JAYASHEELA C.B.
D/O LATE C. BASALINGAPPA W/O MANJUNATH M,
R/O: SRI. NARADAMUNI NILAYA,
OPP: RAILWAY STATION,
CHITRADURGA-577502.
6. SMT. YASHODHAMMA W/O LATE K.T.BASAPPA
SINCE DECEASED BY HER LRS.
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RSA No. 2299 of 2007
6.A K.B.MANJUNATH S/O LATE K.T.BASAPPA
AGED ABOUT 46 YEARS, OCC: LECTURER,
R/O: D.NO:1652-53, LAXMI NIVAS,
12TH COSS, ANJANEYA BADAVANE,
NEAR SANJIVINI NURSING COLLEGE,
DAVANAGERE-577004.
6.B DR. RAVI K.B. S/O LATE K.T.BASAPPA
AGED ABOUT 44 YEARS,
R/O: D.NO:1675/188, GROUND FLOOR,
TARALABALU EXTENSION, 17TH CROSS,
K.H.RANGANATH LAYOUT,
DAVANAGERE-577005.
...RESPONDENTS
(BY SRI. C.S.SHETTAR ADV. FOR
SRI.G.K.HIREGOUDAR FOR R1 TO R3;
SRI. A.R.PATIL FOR R5(C) (I) TO R5(C)(III), R5(A), R5(B)(I)
TO R5(B)(III), R5(D), R5(E), R(5)(F), R4(A) TO R4(D) AND
R6(A) AND R6(B) ALL ARE REPRESENTED THROUGH THEIR GPA
HOLDER R6(B), ADVOCATES)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 11.07.2007 PASSED IN
RA.NO.40/2001 ON THE FILE OF THE ADDL.CIVIL JUDGE
(SR.DN.) RANEBENNUR. DISMISSING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DATED 20.04.2001
PASSED IN OS.NO.148/1992 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DN.) AND I ADDL.JMFC., RANEBENNUR
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
20.07.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
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RSA No. 2299 of 2007
JUDGMENT
This is an appeal filed by the defendants under Section
100 of the Code of Civil Procedure, 1908 (for short, hereinafter
referred to as 'CPC') challenging the judgment and decree
passed in R.A.No.40/2001 on the file of the learned Additional
Civil Judge (Sr.Dn.) Ranebennur.
2. For the sake of convenience, the parties herein are
referred with the original ranks occupied by them before the
Trial Court.
3. The plaintiffs have filed a suit seeking declaration
that they are the owners of suit schedule (1) property and
consequential relief of injunction and alternatively sought for
partition and separate possession of the suit schedule
properties. It is the specific contention of the plaintiffs that
plaintiff No.1 is the legally wedded wife of Basanagouda Patil
having married him about 18 years earlier on 27.03.1976 and
out of the said wedlock, plaintiff Nos.2 and 3 are born. It is
further asserted that the suit schedule properties were
ancestral properties of Basanagouda Patil and in the partition
between Basanagouda Patil and defendant No.1, the suit
schedule item No.1 property has fallen to the share of
RSA No. 2299 of 2007
Basanagouda. It is also asserted that Basanagouda was
enjoying the suit schedule properties exclusively and his where
about is not known since 10 to 15 years and as such the
plaintiffs got mutated their names in the suit schedule
properties. They further asserted that defendants are
interfering in their peaceful possession and the enjoyment of
the suit schedule properties and as such they have filed the
suit.
4. The defendant Nos.1 and 2 appeared and contested
the suit by filing the written statement and disputed the very
status of the plaintiffs. It is asserted that Ashalata is the legally
wedded wife of Basanagouda who was married to Basanagouda
on 06.03.1965 and out of their wedlock, three children are
born. It is also asserted that the suit is not maintainable, as the
wife and children of Basanagouda as well as sisters were not
impleaded. Later on, Ashalata and her children were impleaded
in the suit as defendant Nos.3 to 6. However, the sisters were
not impleaded. Defendant No.3-Ashalata has also filed the
written statement claiming that she is the legally wedded wife
of Basanagouda and disputed the status of the plaintiffs. It is
also denied that Basanagouda was not heard of for last 10 to
RSA No. 2299 of 2007
15 years and claim of the plaintiffs came to be disputed and
they sought for dismissal of the suit.
5. On the bases of these pleadings, the Trial Court has
framed the following 12 issues.
1. Whether plaintiff No.1 prove that she is the legally
wedded wife of Basanagouda Patil and that plaintiff
No.2 and 3 are the sons born out of their wedlock?
2. Whether plaintiffs prove that there was partition
between Basanagouda and defendant No.1 and
suit properties fell to his share?
3. Whether plaintiffs prove that they have become
owners of the suit property after the civil death of
Basanagouda?
4. Whether plaintiffs prove that they are in
possession of the suit property as on the date of
suit?
5. Whether plaintiffs prove that defendants are
interfering into peaceful possession and enjoyment
of suit property as alleged in para(7) of the plaint?
6. Whether plaintiffs prove in the alternative that
they are entitled for half share in the suit
property?
7. Whether defendant No.1 prove that his mother
Chanabasavva executed a will in his favour
bequeathing her interest on 25.2.1991?
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RSA No. 2299 of 2007
8. Whether suit is bad for non joinder of necessary
parties?
9. Whether this court has got pecuniary jurisdiction
to try this suit?
10. Whether valuation made and court fee paid is
correct?
11. To what reliefs plaintiffs are entitled?
12. What order or decree?
6. Plaintiff No.1 was examined as PW.1 and as many
as five witnesses were examined as PW.2 to PW.6. The
plaintiffs placed reliance on 27 documents which are marked at
Ex.P1 to 27. Defendant No.1 is examined as DW.1 while
defendant No.5 is examined as DW.2. Four witnesses were
examined on behalf of defendant as DW.3 to DW.6. Defendants
have also placed reliance on 34 documents marked at Ex.D.1 to
34.
7. After hearing the arguments, and after appreciating
the oral and documentary evidence, the Trial Court has
answered issue No.1 and 11 partly in the negative and partly in
the affirmative, while issue Nos.2, 3 and 6 were answered in
the negative, while issue Nos.4, 5, 9 and 10 were answered in
the affirmative.
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RSA No. 2299 of 2007
8. The Trial Court decreed the suit in part by granting
the relief of injunction against the defendants and the relief
regarding declaration as well as partition came to be rejected.
9. Being aggrieved by this judgment and decree, the
appeal is filed by the appellants in R.A.No.40/2001 on the file
of the learned Additional Civil Judge (Sr.Dn.), Ranebennur and
cross objections were taken by the plaintiffs. The appeal filed
by the defendants came to be dismissed and cross objection
was allowed by decreeing the suit by granting 1/3rd share in
favour of the plaintiffs.
10. Being aggrieved by this judgment and decree, this
Regular Second Appeal is being filed.
11. Heard the arguments advanced by the learned
counsel for the appellants and the learned counsel for the
respondents.
12. This Court while admitting the appeal has framed
the following two substantial questions of law on 19.02.2009.
i) Whether the manner of consideration by the lower
Appellate Court in arriving at the finding that
Basanagouda is absolute owner of all the suit schedule
properties is perverse and contrary to the materials and
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RSA No. 2299 of 2007
evidence available on record, more particularly, in the
light of the findings rendered by the Trial Court?
ii) Whether the lower Appellate Court was justified in
setting aside the findings of the Trial Court insofar as
the rejection of relief of declaration and partition and as
to whether the same is contrary to the evidence on
record?
13. The learned counsel for the appellants would
contend that the plaintiffs have not challenged regarding denial
of relief. It is submitted that the appeal is only as against cross
appeal of granting partition. It is asserted that the plaintiffs
claim to be wife and children but the document discloses that
defendant No.3 was married with Basanagouda in 1965 and the
second marriage, if any, is void. It is also contended that the
plaintiffs cannot seek partition, since, the status of the plaintiffs
itself is under dispute. He would also contend that the Lower
Appellate Court is also ignored the fact that no share was
allotted to the daughters as well as mother and plaintiffs were
given 1/3rd share and there is no base for it. Hence, he would
seek for allowing the appeal by dismissing the suit.
14. Per contra, learned counsel for the respondents
would support the judgment and decree passed by the Trial
Court. He admits that the propositus was survived by three
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RSA No. 2299 of 2007
daughters and two sons, but he submits that in 1975 itself
there was a partition in the family which is evidenced by Ex.D.2
and hence, the question of sisters claiming share does not arise
at all. It is also asserted that item No.2 sold by defendant No.1
and the appeal itself is not maintainable. Hence, he would seek
for dismissal of the appeal.
15. Having heard the arguments and perusing the
records, it is evident that the parties are litigating pertaining to
the property belonging to the Basanagouda. Admittedly, the
propositus Hanumantappa has died in 1974 and he was
survived by wife Channabasawwa, a son Basanagouda,
Defendant No.1-Chanaveerappa and three daughters by name
Hiriyavva, Ningavva and Yashoda. This fact is evident from the
records produced by the plaintiffs. The plaintiffs claim that
plaintiff No.1 is the legally wedded wife of Basanagouda, while
plaintiff Nos.2 and 3 are children of Basanagouda. However, the
defendants have taken a specific contention that defendant
No.3 is the wife of Basanagouda and their marriage was
solemnized in 1965 and they placed reliance on certificate of
registration issued under Ex.D.2.
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RSA No. 2299 of 2007
16. Interestingly, plaintiffs all along contended that
Basanagouda was not heard for last 10 to 15 years. The
plaintiffs are relying on the letters said to have been written by
Basanagouda to witnesses examined on behalf of the plaintiffs.
These letters were admittedly marked subject to objection and
the Trial Court compared the signature of Basanagouda on
Ex.D.2 under Section 73 and hold that letters are genuine
letters. But admittedly, Basanagouda was working in a school
at various places including Gulbarga. Further some of the
letters disclose that they were written in the school letter head.
In that event, there should be certain documentary evidence in
the school records regarding the signature of the Basanagouda,
but no attempt has been made to summon those documents.
Even the plaintiffs have got summoned relevant documents
from the school authority to ascertain whom he has nominated
for receiving his retirement benefits. The entire pleadings are
silent in this regard.
17. The entire case of the plaintiffs is based on
assumption that Basanagouda is dead, since he is not heard of
for last 10 to 15 years. But admittedly, no complaint is lodged
by any of the parties in this regard. Except assertions by the
plaintiffs and oral evidence laid by the plaintiffs there is no
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RSA No. 2299 of 2007
material evidence to show that Basanagouda is dead. The
plaintiffs have also not sought for any declaration regarding
civil death of Basanagouda. No doubt under Section 108 of the
Indian Evidence Act, 1872 there is a presumption of death, if a
person is not heard of 7 years. But to claim that presumption, a
declaratory relief ought to have been filed and evidence is
required to be lead. But in the instant case, no declaratory
relief is sought. Hence, without seeking any declaratory relief of
civil death of Basanagouda, the very suit of the plaintiffs itself
is not at all maintainable, as they are claiming interest in the
property of Basanagouda.
18. The other contention raised by the plaintiffs is that
plaintiff No.1 is the legally wedded wife of Basanagouda and it
is the specific assertion that she married with Basanagouda on
27.03.1976 and out of the said wedlock, plaintiff Nos.2 and 3
are born. In this context, she placed reliance on the evidence of
PW.2 to PW.6. PW.2 to PW.6 have deposed regarding marriage,
but they are admittedly nearest relatives of plaintiffs. However,
plaintiff has also placed reliance on marriage card marked at
Ex.P.9, but the marriage card itself is not a document proof of
valid marriage.
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RSA No. 2299 of 2007
19. On the other hand, the defendants have specifically
asserted that defendant No.3 is the legally wedded wife of
Basanagouda having married to him on 06.03.1965 in Belgaum
and out of the said wedlock, defendant Nos.4 to 6 are born.
The defendants in this context placed reliance on Ex.D.2.
Ex.D.2 is a material document, which is of certified copy of the
marriage certificate. Though plaintiffs have disputed the status
of defendant No.3, Ex.D.2 being the marriage certificate has
got presumption under Sections 13 and 15 of the Special
Marriage Act, 1954 and once the certificate is issued by the
marriage officer, it is conclusive proof of valid marriage
between the parties and third party does not have any right to
challenge the marriage, except the parties to the marriage on
the ground of fraud or otherwise. Admittedly, the marriage was
not challenged by Basanagouda during his lifetime. When
Ex.D.2 is placed and it is of the year 1965, question of plaintiff
claiming to be legally wedded wife does not arise at all. As such
in view of Ex.D.2 the marriage between plaintiff and
Basanagouda is required to be held as a void married. No doubt
records discloses that in the school records the name of plaintiff
Nos.2 and 3 are entered as sons of Basanagouda, but they will
get status of illegitimate children due to void marriage and to
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RSA No. 2299 of 2007
limited extent they can be treated as legitimate children so as
to share personal property of Basanagouda. However, they had
no right to initiate a suit for partition considering their status.
20. Though the evidence does establish that there was
subsequent marriage of Basanagouda with plaintiff No.1 that
does not confirm plaintiff No.1 the status of legally wedded wife
in view of subsistence of marriage of defendant No.3 with
Basanagouda. Hence, plaintiffs will not get a status of legally
wedded wife and children of Basanagouda and they cannot file
a suit for partition considering their status.
21. After conclusion of the arguments and when the
matter was reserved for judgement, the learned counsel has
filed I.A. No.2/2023 under Order XLI Rule 27 R/w Section 151
of CPC seeking production of certain documents i.e., 'U' form,
copy of sale deed executed by the defendants/respondent
Nos.1(a) to (f) and 2 certified copy of mutation entry i.e, MR
No.63 and other sale deeds. These documents will not prove
the status of plaintiffs in any way. These documents are
produced to prove that there was a severance between
Basanagouda, but the documents now sought to be produced
itself discloses that the name of Basanagouda and defendant
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RSA No. 2299 of 2007
No.1 was not entered on the basis of partition, but it is entered
on the ground that they are alone in the joint family as sisters
were married. The mother was also not given any share and
hence, these documents will not assist the plaintiffs. Even the
other documents regarding dealing with other property will not
establish the partition, but it will simply establish that parties
have dealt the properties independently without their being
partition. But that itself does not prove partition in view of the
sisters and mother not being the parties to the alleged
severance.
22. Further interestingly, the First Appellate Court has
granted 1/3rd share to plaintiffs. What is the base for granting
1/3rd share to plaintiffs is not at all forthcoming as defendant
Nos.3 to 6 will inherit the share of Basanagouda and in the
notional share of Basanagouda, the plaintiffs may get some
share. But the First Appellate Court has granted 1/3rd share in
entire property which is also erroneous.
23. Further the injunction sought by the plaintiffs is a
consequential injunction and no independent relief of injunction
is sought. It is important to note here that the plaintiffs are
seeking declaratory relief on the basis of earlier partition, which
they have failed to prove. Further they cannot seek injunction
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RSA No. 2299 of 2007
against co-owners. Apart from that all these exercises can be
done only on proof of death of Basanagouda and that itself is
missing in the instant case. When the parties are fighting for
the property or share of Basanagouda, the initial burden is on
the plaintiffs to seek a declaration regarding civil death of
Basanagouda and without seeking such declaratory relief, they
filed a suit for declaration of title and injunction and
alternatively for partition. As such basically, the suit itself is not
at all maintainable. When suit itself is not maintainable in view
of the peculiar circumstances regarding non seeking declaratory
relief of civil death of Basanagouda, question of plaintiffs being
entitled for any of the reliefs as claimed in the suit does not
arise at all.
24. As such, the appeal requires to be allowed because
of the fact that there is no declaration sought regarding civil
death of Basanagouda and even otherwise, the plaintiffs cannot
institute a suit for partition in view of the fact that the marriage
between plaintiff No.1 and Basanagouda is a void marriage.
Looking to these facts and circumstances, both the substantial
questions are answered in the negative and as such appeal
needs to be allowed. In view of the maintainability the suit
itself is at stake, I.A.No.2/2023 filed by the respondents at a
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RSA No. 2299 of 2007
belated stage after the arguments does not survive for
consideration and hence, it needs to be rejected. Accordingly, I
proceed to pass the following:
ORDER
i) The appeal filed by the appellants is allowed.
ii) The judgment and decree passed by the learned
Principal C.J.(Jr.Dn.) & I Additional JMFC.,
Ranebennur, in O.S.No.148/1992, dated
31.05.2001 and judgment and decree passed by
the learned Additional Civil Judge (Sr.Dn.)
Ranebennur in R.A.No.40/2007, dated 11.07.2007
are set aside and suit in O.S.No.148/1992 stands
dismissed.
iii) Consequently I.A.No.2/2023 also stands
dismissed.
iv) In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive
for consideration and are disposed of accordingly.
Sd/-
JUDGE
SSP
