Karnataka High Court
Basamma W/O Husanappa Anr vs Saru Bai W/O Mahadevappa Ors on 11 January, 2024
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NC: 2024:KHC-K:490
RSA No. 7088 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7088 OF 2011
(DEC, CAN. & PAR)
BETWEEN:
1. BASAMMA W/O HUSANAPPA,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
2. MANOHAR W/O HUSANAPPA,
AGED ABOUT 20 YEARS,
OCC: AGRICULTURE,
BOTH R/O GOUR (K), TQ. AFZALPUR,
DIST. GULBARGA-585 307.
...APPELLANTS
(BY SRI. B.K. HIREMATH, ADVOCATE)
Digitally signed
by SACHIN
Location: HIGH AND:
COURT OF
KARNATAKA
1. SARU BAI W/O MAHADEVAPPA,
AGED ABOUT 40 YEARS,
2. DUNDAWWA
W/O KHAJAPPA SURGE,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD,
3. HUSANAPPA S/O SHARNAPPA SURGE,
AGED ABOUT 54 YEARS,
OCC: AGRICULTURE,
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NC: 2024:KHC-K:490
RSA No. 7088 of 2011
ALL R/O GOUR (K), TQ. AFZALPUR,
DIST. GULBARGA-585 307.
...RESPONDENTS
(SRI. R.S. SIDHAPURKAR, ADVOCATE FOR R-1;
SRI. M.A. JAGIRDAR, ADVOCATE FOR C/R-2;
V/O DTD. 14.07.2023, APPEAL AGAINST R3 IS ABATED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 27.01.2011 PASSED IN R.A.
NO.183/2010 BY THE III ADDL. DISTRICT JUDGE AT
GULBARGA, WHEREIN THE JUDGMENT AND DECREE DATED
06.04.2010 PASSED IN O.S.NO.295/2006 BY THE PRL. CIVIL
JUDGE (SR.DN.) AT GULBARGA IS SET ASIDE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiffs, challenging the
judgment and decree dated 27.01.2011 in
R.A.No.183/2010 on the file of III Addl. District Judge at
Gulbarga, setting aside the judgment and decree dated
06.04.2010 in O.S.No.295/2006 on the file of Principal
Civil Judge (Sr.Dn.) and CJM, Gulbarga, decreeing the suit
of the plaintiffs in part.
NC: 2024:KHC-K:490
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiffs that, the schedule
property is belonging to defendant No.3 and the said
property is the ancestral property of defendant No.3. It is
stated that, the first plaintiff is the wife of defendant No.3
and in their wedlock, plaintiff No.2 was born on
08.08.1987. It is stated that, the plaintiffs along with
defendant No.3 constitute joint family and therefore, the
execution of sale deed dated 20.06.1989 by defendant
No.3 in favour of defendant No.1 is not binding on the
plaintiffs. Hence, the plaintiffs have filed suit for
declaration that, the plaintiffs are the exclusive owners of
the land in question and registered sale deed referred to
above is not binding on the plaintiffs, resulting in filing
O.S. No.295/2006 before the Trial Court.
entered appearance and filed detailed written statement,
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denying the relationship between defendant No.3 with the
plaintiffs and further contended that the plaintiffs have no
rights over the schedule property.
5. Defendant No.3 entered appearance and filed a
written statement, admitting the relationship with the
plaintiffs, however, pleaded that the registered sale dated
20.06.1989 is concocted and without his consent and
accordingly sought for entitlement of share in respect of
the plaintiffs.
6. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
7. In order to substantiate their case, plaintiffs
have examined four witnesses as PW.1 to PW.4 and got
marked nine documents as Exs.P1 to P9. The defendants
have examined six witnesses as DW.1 to DW.6 and got
marked six documents as Exs.D1 to D6.
8. The Trial Court after considering the material on
record, by its judgment and decree dated 06.04.2010,
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decreed the suit of the plaintiffs in part, holding that
plaintiff No.2 is entitled for half share in the suit schedule
property. Feeling aggrieved by the same, defendant Nos.1
and 2 have preferred R.A. No.183/2010 before the First
Appellate Court and the appeal was resisted by the
plaintiffs and defendant No.3.
9. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
27.01.2011, allowed the appeal and consequently set
aside the judgment and decree passed by the Trial Court
in O.S.No.295/2006. Feeling aggrieved by the same, the
plaintiffs have filed this Regular Second Appeal.
10. This Court, by order dated 10.11.2011,
admitted the appeal for examination of substantial
question of law framed in the memorandum of appeal,
which reads as under:
i) Whether the lower Appellate Court is
justified in holding that the relationship of
plaintiffs with defendant no.3/respondent
NC: 2024:KHC-K:490
no.3 herein is not proved, although when
the defendant no.3 has admitted the said
relationship and further when the factum of
the marriage of the plaintiff no.1 and
defendant no.3 as such was not denied by
any party to the suit ?
ii) Whether the Courts below are justified in
framing issue no.1 on 1.1.2009 and placing
the burden of proof of marriage of plaintiff
no.1 and defendant no.3 on the plaintiffs,
when it was the specific case of the
defendants 1 and 2 that the defendant no.3
had married the plaintiff no.1, but in Udaki
form of marriage ?
11. I have heard Sri B.K.Hiremath, learned counsel
appearing for the appellants and Sri R.S.Sidhapurkar,
learned counsel appearing for respondent No.1.
12. Sri B.K.Hiremath, learned counsel appearing for
the appellants/plaintiffs urged that the plaintiffs have
proved the marriage relationship with defendant No.3 and
as the factum of marriage was proved, the Trial Court
rightly decreed the suit holding that, plaintiff No.2 is
NC: 2024:KHC-K:490
entitled for half share in the suit schedule property and
same has been erroneously interfered with by the First
Appellate Court. Accordingly, he sought for interference of
this Court.
13. Per contra, Sri R.S.Sidhapurkar, learned
counsel appearing for respondent No.1 invited the
attention of this Court to the finding recorded by the Trial
Court in respect of additional issue No.3 framed on
01.01.2009 and submitted that, the said finding recorded
by the Trial Court is without any basis and the factum of
marriage relationship was not proved by the plaintiffs with
defendant No.3 and therefore, sought for dismissal of the
appeal.
14. Having heard the learned counsel appearing for
the parties, the core question to be answered in this
appeal is, whether the plaintiffs have made out a case for
interference by proving the marriage of the plaintiff No.1
with the defendant No.3 ? In this regard, having taken
note of the factual aspects on record that the subject
NC: 2024:KHC-K:490
matter of the suit property is the ancestral property of
defendant No.3 and same was executed on 20.06.1989
(Ex.D6) and even according to the plaintiffs, the date of
birth of the plaintiff No.2 is 08.08.1987, the said aspect
and circumstances has not been properly appreciated by
the trial Court.
15. I have also noticed the deposition of PW.2 that
when he was studying in 8th standard he came to know
that his mother has married defendant No.2. This aspect
would demonstrate that plaintiff No.1 and defendant No.3
are not residing together as husband and wife. Even if
plaintiff No.2 is to be treated as illegitimate child of
plaintiff No.1 and defendant No.3 and the sale-deed dated
20.06.1989 has been executed by defendant No.3 in
favour of defendant No.1 and in view of the declaration of
law made by the Hon'ble Apex Court in the case of
Revenasiddappa and another vs. Mallikarjun and
others1, the share of illegitimate child will get operate
(2023) 10 SCC 1
NC: 2024:KHC-K:490
only after the death of the father. However in the instant
case, as the father (defendant No.3) himself has executed
the sale-deed as per Ex.P.6, I am of the opinion that the
plaintiffs have not made out the case for interference in
this appeal and the substantial questions of law as farmed
by the appellants at paragraph 8 of the memorandum of
appeal itself favours the defendant Nos.1 and 2.
In the result, the appeal fails and is accordingly
dismissed.
Sd/-
JUDGE
LG,SN
