Karnataka High Court
Smt. Lakshmamma vs Smt. Channamma on 21 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 125 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 125 OF 2024 (DEC/INJ)
BETWEEN:
1. SMT. LAKSHMAMMA,
W/O SRI NANJAPPA
AGED ABOUT 58 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
2. SMT. PUSHPA
D/O SRI NANJAPPA
AGED ABOUT 38 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
Digitally NAGAMANGALA TALUK
signed by MANDYA DISTRICT - 571 432.
SUMA B N
Location: High
Court of 3. SMT JAYAMMA
Karnataka D/O SRI NANJAPPA
AGED ABOUT 36 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
4. SMT BHAGYA
D/O SRI NANJAPPA
AGED ABOUT 32 YEARS
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RSA No. 125 of 2024
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
5. SRI KUMARA
S/O SRI NANJAPPA
AGED ABOUT 34 YEARS
R/O P. CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
...APPELLANTS
(BY SRI. VEERAYYA HIREMATH.,ADVOCATE)
AND:
1. SMT. CHANNAMMA
W/O NANJAPPA
AGED ABOUT 70 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
2. SMT PUTTALASKHMI
D/O SRI NANJAPPA
AGED ABOUT 39 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT -571 432.
3. SRI MANJEGOWDA @ MANCHEGOWDA
S/O NANJAPPA
AGED ABOUT 50 YEARS
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RSA No. 125 of 2024
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
SRI HONGEGOWDA
S/O LATE SRI NARASIMHEGOWDA
SINCE DECEADED BY HIS LRS
4. SMT HANUMAMMA
W./O LATE SRI HONGEGOWDA
AGED ABOUT 70 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
5. SRI KRISHNEGOWDA
S/O LATE SRI HONGEGOWDA
AGED ABOUT 48 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
6. SRI NANJAPPA
S/O LATE HONGEGOWDA
AGED ABOUT 55 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
7. SMT SHARADA
W/O SRI SHIVANNAGOWDA
AGED ABOUT 36 YEARS
R/O MULLER VILLAGE
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RSA No. 125 of 2024
GOPALAPURA POST
JAYAPURA HOBLI
MYSURU TALUK AND DISTRICT - 570 008.
8. SMT SUNANDA
W/O PAPEGOWDA
AGED ABOUT 30 YEARS
R/O MULLER VILLAGE
GOPALAPURA POST
JAYAPURA HOBLI
MYSURU TALUK AND DISTRICT - 570 008.
9. SMT. NAGAMMA
W/O MURTHY
AGED ABOUT 32 YEARS
ANCHECHITTANAHALLI POST
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DSITRICT - 571 432.
10. SMT. PREMA
W/O SRI KRISHNEGOWDA
AGED ABOUT 40 YEARS
R/O BINDIGANAVILE VILLAGE
KASABA HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
11. SMT. LAKSHMAMMA
W/O BRAMHALINGEGOWDA
AGED ABOUT 50 YEARS
R/A PADUVALAPATTANA VILLAGE
KASABA HOBLI
MANDYA - 571 432
...RESPONDENTS
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RSA No. 125 of 2024
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 03.11.2023 PASSED IN
RA NO.9/2011 ON THE FILE OF II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, NAGAMANGALA, ALLOWING THE APPEAL
AND SETTING ASIDE AND MODIFYING THE JUDGMENT AND
DECREE DATED 31.08.2010 PASSED IN OS NO.76/2004 ON
THE FILE OF CIVIL JUDGE (JR.DN) AND JMFC, NAGAMANGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendant Nos.2 to 5 against
the judgment and order dated 03.11.2023 passed in
R.A.No.9/2011 on the file of the II Additional Senior Civil
Judge & JMFC, Nagamangala (hereinafter referred to as
First Appellate Court' for short) by which the first appellate
court while setting aside the judgment and decree dated
31.08.2010 passed in O.S.No.76/2004 on the file of Civil
Judge (Jr.Dn.) and JMFC, Nagamangala hereinafter
referred to as the Trial Court' for short) modified the relief
granting the shares in the property of the deceased
Nanjappa.
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2. The above suit in O.S.No.76/2004 is filed by the
plaintiffs claiming to be the wife and daughter respectively
of one deceased Nanjappa against one Honnegowda/
defendant No.1 who is the brother of Nanjappa and one
Lakshmamma the second wife of Nanjappa. The said suit
was filed for declaration of title and consequential relief of
injunction.
3. It is further case of the plaintiffs that the suit
lands were fallen to the share of Nanjappa as per the oral
partition between him and his brothers. That subsequent
to demise of said Nanajappa in the year 2003, the
plaintiffs continued to be in possession of the suit lands as
his legal heirs and had applied for incorporation of her
name in the revenue records but the revenue authorities
have not changed the entries. It is further pleaded that
defendants are attempting to interfere with the peaceful
possession of the suit lands of the plaintiffs even though
they have no right, title or interest over the suit lands.
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That the son of the plaintiff No.1 was not made as a party
to the suit as he was a habitual drunkard and vagabond.
4. That after service of summons defendants
appeared and filed their written statement. That defendant
No.1 admitted the entire plaint averments and submitted
that he had never interfered in the suit lands.
5. Defendant No.2 in her written statement denied
the plaint averments and relationship of the plaintiffs with
deceased Nanjappa, and she claim that she is the legally
wedded wife of deceased Nanjappa and that out of their
marriage they had four children. It is further contention of
the defendant No.2 that she is in possession of the suit
lands along with her four children having succeeded to the
same upon the demise of Nanjappa. That plaintiffs were
never residing at P.Chittanahalli village, Nagamangala
Taluk as such they are not in possession of suit lands.
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6. On the basis of the pleading, the Trial Court
framed the following issues for its consideration;
"1. Whether the plaintiffs prove that they are the
owners in possession of suit property?
2. Whether there is interference with their possession?
3. Whether the plaintiffs are entitled for the relief of
declaration and injunction?
4. What order or decree ?
Additional Issues framed on 09.11.2006
1. Whether the suit is bad for non-joinder and
mis-joinder of necessary parties ?
Additional Issue framed on 08.08.07
1. Whether the plaintiffs prove that plaintiff No.1 is the
legally wedded wife of Nanjappa and they are the sole
legal heirs of Nanjappa?"
and recorded the evidence. Plaintiff No.1 examined herself
as PW.1 and examined two witnesses as PW.2 to PW.4 and
exhibited six documents as Ex.P1 to Ex.P6. The defendant
No.2 examined herself as DW.1 and examined two witness
as DW.2 and DW.3 and exhibited 56 documents as Ex.D1
to Ex.D56. While answering the additional issue No.1, the
Trial Court found that the evidence lead by the plaintiff
No.1 claiming herself to be the wife of deceased Nanjappa
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was not acceptable. As such, dismissed the suit. Aggrieved
by the same, the plaintiffs filed regular appeal in
R.A.No.9/2011 before the first appellate Court.
7. Considering the grounds urged in the appeal
the first appellate Court framed following points for its
consideration:
"1. Whether the judgment and decree passed
by the trial court in O.S.No. 76/2004, dated:
31.08.2010 is illegal, erroneous, capricious and
not based on legal principles and as such it is fit
to be set aside and calls for interference by this
court?
2. Whether this case is fit for the moulding the
relief on the ratio of the Hon'ble High Court of
Karnataka parties are entitle for relief of partition.
3. What order or decree?".
8. Sri.Veerayya Hiremath, learned counsel for the
appellants reiterating the grounds urged in the
memorandum of appeal submitted that;
(a) the First Appellate Court erred in not
appreciating the entry in the revenue records
disclosing the name of the appellants as owners of
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the subject property. That documents produced at
Ex.D1 to Ex.D56 by the appellants establishing their
relationship with deceased Nanjappa having not been
disputed by the plaintiffs. Thus, he submits that the
First Appellate Court grossly erred in placing the
burden on the appellants/defendants to prove their
relationship. He further submits that in the absence
of evidence produced by the plaintiffs establishing
the relationship with the Nanjappa the First Appellate
Court ought not to have reverse the finding of the
Trial Court.
(b) As regards the evidence of PW.2 and PW.4 who
have deposed regarding the relationship of the
plaintiff with deceased Nanjappa as found by the
First Appellate Court, learned counsel for the
appellants adverting to the aforesaid findings of the
First Appellate Court submits that there was enemity
between defendant No.1, PW.2 and PW.4 regarding
property matters. Thus, he submits that the said
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witnesses have deposed detriment to her interest.
Thus, he submits that the judgment of the First
Appellate Court suffers from perversity and had
further erred in modifying the judgment and decree
of the Trial Court and moulding the relief by granting
share to the plaintiffs in a suit filed for declaration
and injunction giving raise to substantial question of
law.
9. Heard. Perused the records.
10. The above suit was initially filed for declaration
and consequential relief of injunction. The Trial Court
dismissed the said suit primarily on the finding given on
issue No.1 and additional issue No.1 regarding the
relationship of plaintiff with deceased Nanjappa. The Trial
Court found that the plaintiff No.1 had not lead and
produced sufficient evidence with regard to her marriage
with the deceased Nanjappa. Trial Court also declined to
accept the evidence of PW.2-Kemppa and PW.4-
Ramegowda though the said witnesses have deposed to
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the effect that Channamma is the wife of deceased
Nanjappa on the premise that plaintiff No.1 has neither
pleaded anything about performance of marriage
ceremony including tying of Tali nor has produced any
witnesses in this regard. The Trial Court has also accepted
the contention of the counsel for the defendants that the
evidence of the PW.2 and PW.4 could not be accepted as
the relationship of PW.2 and PW.4 with the defendant No.2
was not in good terms. Thus, the Trial Court dismissed the
suit primarily for the reason that the plaintiff No.1 not
being able to establish her relationship of a legally wedded
wife with deceased Nanjappa.
11. Judgment of the First Appellate Court reveal
that plaintiff had amended the plaint in the appeal stage
and had pleaded about her marriage having been
performed with deceased Nanjappa at "Sri. Veeranjaneya
Swamy Temple", Sunnadahalli village, Badravathi Taluk,
Shivamogga District during the month of September,
1972. Plaintiff apart from herself had also examined PW.2-
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Kempamma. The said Kempamma is the wife of brother of
deceased Nanjappa. The said Kempamma during her
cross-examination had specifically stated about the
marriage of the plaintiff with deceased Nanjappa having
taken place at Badravathi, Shivamogga District.
12. PW.3 is another witness namely Nanjappa also
known as Kullegowda. A suggestion has been made to the
said witness on behalf of defendant No.2 which has been
taken note of by the First Appellate Court at para 25 which
reads that "it is true that house earlier which was in the
village where first plaintiff was residing collapsed and now
the first plaintiff whenever she come from Jog Falls, she
resides at first defendant /Honnegowda".
13. PW.4 /Ramegowda is the brother of defendant
No.2. The said witness has also deposed even as taken
note of by the Trial Court about plaintiff being the wife of
deceased Nanjappa.
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14. As already noted defendant No.1 who is none
other than the brother of the deceased Nanjappa in his
written statement has admitted the relationship of the
plaintiff No.1 with deceased Nanjappa.
15. Section 50 of the Indian Evidence Act, 1872
provides relevancy of opinion of any person who as
member of the family or otherwise has special means of
knowledge as to the existence of such relationship. As
rightly taken note of by the First Appellate Court
defendant No.1 is none other than the brother of deceased
Nanjappa who has admitted the relationship of plaintiff
No.1 with the deceased Nanjappa. PW.2 is the wife of the
brother of deceased Nanjappa. PW.4 is the brother of the
defendant No.2. These persons have categorically spoken
about plaintiff No.1 being the wife of deceased Nanjappa.
No acceptable evidence is produced by the defendant No.2
to discredit their evidence except suggesting the alleged
enemity of the said witnesses with defendant No.2.
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16. The First Appellate Court has elaborately
adverted to the evidence lead by the plaintiff No.1 and
also examined the PWs.2, 3 and 4 in justification of her
contention to prove the relationship. PW.2 is the wife of
brother of deceased Nanjappa, she has spoken about the
marriage of the plaintiff No.1 with deceased Nanjappa
having taken place in Badravathi. PW.3 is one Nanjappa
who has spoken about plaintiff No.1 residing at
Chittanahalli village. PW.4 is none other than the brother
of defendant No.2, he has also spoken about relationship
of plaintiff No.1 with that of Nanjappa as a husband and
wife.
17. The First Appellate Court taking note of the this
evidence on record has come to the just conclusion that
plaintiff No.1 had indeed established her relationship as a
wife of deceased Nanjappa and accordingly modified the
relief grating the shares to the plaintiffs therein in the
property of Nanjappa. Since the plaintiff has adduced the
evidence of none other than the family members namely,
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sister-in-law and brother of the defendant No.2, who have
stood the test of cross-examination in their deposition of
plaintiff No.1 being the wife of Nanjappa and same having
taken note of by the First Appellate Court which has
missed the attention of the Trial Court, and the said
finding being on the question of fact cannot be interfered
with in this second appeal.
No substantial question of law would therefore arise
for consideration. Appeal is dismissed confirming the
judgment and order dated 3.11.2023 passed in
R.A.No.9/2011 passed by the First Appellate Court.
All pending applications are disposed of in view of the
dismissal of the appeal.
Sd/-
JUDGE
RU
