Karnataka High Court
Shankar S/O Gurappa Kannur Anr vs Parwatibai W/O Kalyanrao Anr on 22 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No.7228 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.7228 OF 2011
(DEC/INJ)
BETWEEN:
1. SHANKAR S/O GURAPPA KANNUR,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O VILLAGE JANWADA,
TQ. BASVAKALYAN,
DIST. BIDAR.
2. MAHARUDRAPPA S/O GURAPPA KANNUR,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O VILLAGE JANWADA,
TQ. BASVAKALYAN,
Digitally signed by DIST. BIDAR
SHILPA R
TENIHALLI
Location: HIGH ...APPELLANTS
COURT OF (BY SRI VIKRAM VIJAY KUMAR, ADVOCATE)
KARNATAKA
AND:
1. PARWATIBAI W/O KALYANRAO,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE JANWADA,
TQ. BASVAKALYAN,
DIST. BIDAR.
2. NEELAMMA D/O KALYANRAO
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O VILLAGE JANWADA,
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RSA No.7228 of 2011
TQ. BASVAKALYAN,
DIST. BIDAR,
NOW RESIDING AT VILLAGE, OKALI,
TQ. AND DIST. GULBARGA.
...RESPONDENTS
(BY SRI RAVINDRA REDDY, ADVOCATE FOR R1;
R2 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE IN RA.NO.213/2010
PASSED BY THE FAST TRACK COURT AT BASWAKALYAN DATED
22-03-2011 AND PLEASED TO RESTORE THE JUDGMENT AND
DECREE OF THE TRIAL COURT DATED 24-6-2004 IN OS
NO.142/1986 PASSED BY THE CIVIL JUDGE [JR.DIV] AT
BASAVAKALYAN, AFTER CALLING FOR THE LOWER COURT
RECORDS.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants/original
defendant Nos.3 and 4 challenging the judgment and
decree passed in R.A.No.213/2010 by the Presiding
Officer, Fast Track Court, Basavakalyan dated 22.03.2011
and prayed for restoring the judgment and decree dated
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24.06.2004 in O.S.No.142/1986 passed by the Civil Judge
(J.D.) and JMFC, Basavakalyan.
2. For the sake of convenience, the parties herein
are referred with their original ranks occupied by them
before the Trial Court.
3. The brief factual matrix leading to the case are
as under:
That the plaintiff has filed O.S.No.142/1986 seeking
relief of declaration of her title and for perpetual injunction
with respect to suit schedule properties and in the
alternative sought for partition and separate possession. It
is alleged that one Kalyan Rao S/o Irappa R/o Janwada
was the husband of the plaintiff and defendant No.1
Chandamma. The plaintiff is the legally wedded wife of
Kalyan Rao who died about 7-8 years earlier to filing of
suit and defendant No.1 is the second wife of Kalyan Rao
and defendant No.2 is the daughter born to defendant
No.1 and Kalyan Rao and after his death, the plaintiff and
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defendants got divided the lands shown in the Schedule -
B orally one year after the death of Kalyan Rao. That the
properties shown in Schedule - C in the red colour in the
plaint sketch are allotted to the share of the plaintiff. The
oral partition took place considering the fertility of the
lands and for maintenance and marriage expenses of
defendant No.2, as a result, the excess land was given to
the defendants. The mutation order is passed by the
Tahsildar on 08.05.1986 granting ½ share each in
Schedule - B properties to defendant No.1 and plaintiff
which is not challenged by the defendants. Though
defendants had no right, title or interest over the suit
Schedule - C properties, they started illegal interference
and denied the title of the plaintiff and hence, she filed a
suit for declaration of her title with perpetual injunction
and in the alternative sought for the relief of partition.
4. Defendant Nos.1 and 2 filed their written
statement admitting the relationship, but disputed the
other allegations. It is denied that Schedule - B properties
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were orally partitioned and Schedule - C properties were
given to the plaintiff to her exclusive share. It is asserted
that the plaintiff has no issues and Late Kalyan Rao was
well to do man and was possessing gold, silver, old coins
etc. It is contended that after passing of order by the
Tahsildar, Basavakalyan holding plaintiff and defendants ½
share, the partition was held and plaintiff has received
gold, silver and silver coins, cash towards her share by
giving up all the landed properties in favour of defendant
Nos.1 and 2. Hence, they disputed the claim of the
plaintiff over the suit schedule properties.
5. Subsequently, defendant Nos.3 and 4 got
impleaded themselves in the suit and filed written
statement asserting that they are related to Kalyan Rao
and one Nandewwa was the sister of father of Kalyan Rao
and cousin sister of Siddappa who was the owner and
possessor of land bearing Sy.No.12 corresponding new
Sy.No.11 measuring 21 acres 10 guntas and she was
issueless and her husband predeceased her. Hence, it is
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asserted that she had executed a deed titled as agreement
deed on 21.11.1954 in respect of the deceased Kalyan
Rao, Siddappa, Sharanappa and Ambanna and she has
bequeathed ½ share portion in Sy.Nos.12 and 16 in favour
of said persons and she had given 1/3rd portion out of ½
portion to Kalyan Rao and 1/3rd portion to her cousin
brother Siddappa and remaining 1/3rd portion to
Sharanappa and Ambanna equally. It is further alleged
that remaining ½ portion out of Sy.Nos.12 and 16 was
given to different Harijan people of the village and the
entire house was given to Kalyan Rao. Hence, they
disputed the claim of the plaintiff and by way of counter
claim they sought for rectification of ROR.
6. On the basis of these pleadings, the Trial Court
has framed nine issues and three additional issued as
under.
ISSUES
1. Whether the plaintiff proves that, there
was oral partition between the plaintiff
and defendant no.1, one year after the
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death of her husband as contended by
her in respect of property shown in
schedule(B)?
2. Whether she further proves that, in the
said partition the properties shown in
schedule(C) were allotted to the plaintiff
as her share?
3. Whether she further proves that, she is
the owner and possessor of suit property
shown in schedule(C) of the Plaint as on
date of suit?
4. Whether plaintiff further proves that, the
defendant interfered in her peaceful
possession over the suit property?
5. Whether the defendant proves that, the
suit properties Value is more than 1 lakh
and this court has no jurisdiction to try
the suit?
6. Whether the defendants proves that, the
plaintiff relinquished her right of share in
the property left by her husband by
taking gold, silver ornaments and cash of
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Rs.10000/- in favour of defendants as
per compromise?
7. Whether the plaintiff entitled for a
alternative relief of partition and
possession and equal share in the
property shown in the schedule(B)?
8. Whether the plaintiff is entitled for relief
sought?
9. What order of decree?
ADDL. ISSUES
1. Whether the defendants no.3 and 4
proves that Sy.no.12/8 and sy.no.11
allotted in their favour in a partition as
averred in the written statement?
2. Whether the defendant no.3 and 4
proves that the suit is bad for non
joinder of necessary parties?
3. Whether the defendants 3 and 4 entitled
for the relief as prayed?
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7. The plaintiff was examined herself as P.W.1 and
two witnesses were examined as P.W.2 and P.W.3 and she
placed reliance on 28 documents marked at Exs.P.1 to
P.28. Defendant No.2 was examined as D.W.1 and
defendant No.4 was examined as D.W.2 and two witnesses
were examined as D.W.3 and D.W.4 and they have placed
reliance on 47 documents marked at Exs.D1 to D.47.
8. The learned Civil Judge after appreciating the
oral and documentary evidence, answered issue Nos.1 to
3, 7 and 8 partly in the affirmative, while issue No.6 and
additional issue Nos.1 to 3 were answered in the
affirmative and issue Nos.4 and 5 came to be answered in
the negative and ultimately, suit filed by the plaintiff
against defendant No.2 came to be partly decreed holding
that the plaintiff is the owner and possessor in
Sy.Nos.14/1 and 15/3 and she is the owner of the
property succeeded by Kalyan Rao after death of
Nandewwa to the extent of 4 acres 4 guntas by issuing
injunction against defendant No.2. Further, the learned
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Civil Judge has allowed the counter claim of defendant
Nos.3 and 4 by directing the revenue officials to rectify the
revenue documents in RTC by showing defendant Nos.3
and 4 as owners and possessors to the extent of 10 acres
11 guntas in Sy.Nos.12/8, 2 acres 32 guntas in
Sy.No.12/1 and 24 guntas in Sy.No.11/1 as prayed for in
the counter claim.
9. Being aggrieved by this judgment of partly
decreeing the suit, the plaintiff has filed RA No.213/2010
and defendant No.2 has filed RA No.215/2010. The
learned Presiding Officer, Fast Track Court after re-
appreciating the oral and documentary evidence, allowed
R.A.No.213/2010 and dismissed R.A.No.215/2010 and
decreed the suit of the plaintiff in its entirely as prayed for.
10. Being aggrieved by this judgment, defendant
Nos.3 and 4 are before this Court by way of this regular
second appeal under Section 100 of CPC.
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11. Heard the arguments advanced by the learned
counsel for the appellants and the learned counsel for the
respondents. Perused the records.
12. The learned counsel appearing for the
appellants would contend that the lower Appellate Court
has failed to appreciate the oral and documentary
evidence in proper perspective and failed to consider that
Kalyan Rao was not exclusive owner and the properties
were owned by his sister and she has bequeathed the suit
properties equally to Kalyan Rao and others which was lost
sight. He has contended that the entire approach of the
learned Appellate Judge is erroneous, perverse and
arbitrary which has resulted in miscarriage of justice and
sought for allowing the appeal by setting aside the
impugned judgment of the first Appellate Court.
13. Per contra, the learned counsel for the
respondents would support the judgment and decree of
the first Appellate Court and contended that though the
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allegations were made regarding the bequeath, there is
absolutely no evidence and the bequeath is also not
proved in accordance with law. It is further submitted that
no declaration of title or partition was sought by the
defendants, but the relief is only to the extent of
rectification of the entireties and without seeking
declaration, the relief of rectification cannot be granted
and all these aspects were properly considered by the
lower Appellate Court and has rightly decreed the suit of
the plaintiff in its entirety and sought for dismissal of the
appeal on the ground that it does not call for any
interference.
14. This Court by order dated 08.01.2013 has
framed the following issues:
"Whether the first appellate Court is justified
in reversing the judgment of the trial Court by
misreading the evidence on record and by
omitting to take into consideration the
admissible evidence? "
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15. At the outset, the plaintiff has not sought any
relief against defendant Nos.3 and 4, who are the
appellants before this Court. Further, defendant Nos.3 and
4 got themselves impleaded and sought counter claim only
for rectification of entries, but did not seek any declarative
relief pertaining to their title over the portion of suit
schedule properties referred in the counter claim. Hence,
the entire counter claim itself is misconceived, as such a
relief of rectification cannot be granted without declaration
of title and rectification cannot be sought without title
being established.
16. The undisputed fact is that the plaintiff is the
first wife of Kalyan Rao and defendant No.1 is the second
wife of deceased Kalyan Rao. It is also admitted that
defendant No.2 Neelamma is the daughter born to
defendant No.1 and Kalyan Rao and plaintiff is not having
any issues. The contention of the plaintiff is that there
was a partition in the landed properties of Kalyan Rao and
Schedule - B properties were owned by Kalyan Rao and
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Schedule - C properties were allotted to the share of the
plaintiff. However, defendant Nos.1 and 2 though have
disputed the partition as claimed by the plaintiff, they
asserted that there was a partition and the plaintiff has
received gold, silver and cash towards her share and given
up her right in the suit schedule properties in favour of
defendant Nos.1 and 2. The Trial Court did not accept the
said contention and the appeal filed by defendant No.2 in
this regard in R.A.No.215/2010 was dismissed. The said
judgment and decree in R.A.No.215/2010 was not
challenged by defendant No.2. Hence, both the Courts
have consistently held that there was a partition and
schedule - C properties were allotted to the share of
plaintiff and other properties were allotted to the share of
defendant Nos.1 and 2. This appreciation is also based on
admission given by D.W.1, as it is evident that she is only
the hearsay witness. Hence, the said finding which is not
challenged by defendant No.2 does not call for any
interference.
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17. Defendant Nos.3 and 4 claimed that Nandewwa
was the owner of the suit schedule properties who died
about 50 years back and she bequeathed her property in
favour of Kalyan Rao and others including the father of
defendant Nos.3 and 4. The evidence of D.W.3 and D.W.4
in this regard does not assist the defendants in any way.
D.W.2 specifically admits that Nandewwa was the sister of
Kalyan Rao and in that event, even if the properties were
owned by Nandewwa, then after her death, her nearest
heir will be Kalyan Rao and he acquires exclusive title. as
defendant Nos.3 and 4 are the distant relatives and does
not fall under the category of class-II heirs. Though the
assertions were made regarding bequeath, no document
has been produced and the said document is not placed on
record. The evidence of D.W.2 discloses that he was aged
about 50 years and admittedly, Nandewwa died about 50-
60 years earlier and in that event, he was just born or not
yet born at the time of death of Nandevva. In such event,
since he is the propounder of will, it is for him to prove the
execution of the will by examining either attesting witness
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or under the provision of Section 62 of the Indian
Succession Act and Sections 68 and 69 of the Evidence
Act. But D.W.3 and D.W.4 did not whisper regarding the
will and none of the witnesses were examined and the will
document is also not claimed. Hence, it is evident that
defendant Nos.3 and 4 did not prove the alleged will and
acquisition of title under the will. Even otherwise, they did
not seek title under the will, but they are seeking only
rectification of entries which is not permissible without
seeking the relief of title.
18. The Appellate Court has properly appreciated
the oral and documentary evidence and has rightly
reversed the judgment of the Trial Court which has
misread the evidence on record by omitting to take into
consideration the admissible evidence. Accordingly, the
question of law is answered in favour of the
plaintiff/respondent No.1 herein and as such, the appeal
being devoid of any merits, does not survive for
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consideration. As such, I proceed to pass the following
order:
ORDER
i. The appeal stands dismissed with costs
throughout.
ii. In view of disposal of the appeal, I.A.No.1/2023
filed for permission to amend the written
statement does not survive for consideration
and accordingly, stands disposed of.
Sd/-
JUDGE
RSP
