Karnataka High Court
Sri Erajjappa S/O Era @ Eranna @ ... vs Kariyanna Fostered on 31 July, 2024
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RSA No. 65 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.65 OF 2013 (DEC/INJ)
BETWEEN:
1. SRI ERAJJAPPA
S/O ERA @ ERANNA @ HOMBALAPPA,
DEAD BY LEGAL REPRESENTATIVES
1(A) ERAMMA
W/O CHITTAMMA
D/O LATE ERAJJAPPA
AGED ABOUT 51 YEARS
1(B) RANGANATH
S/O LATE ERAJJAPPA
1(C) E. GOVINDARAJU
S/O LATE ERAJJAPPA
Digitally signed
by R DEEPA AGED ABOUT 45 YEARS,
Location: HIGH
COURT OF 1(D) BADAIAH
KARNATAKA S/O LATE ERAJJAPPA
AGED ABOUT 41 YEARS
ALL ARE R/O HOSAKERE GOLLARAHATTI,
MIDIGESHI HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT
2. CHIKKEERAPPA
S/O ERA @ ERANNA @ HOMBALAPPA,
AGED ABOUT 70 YEARS,
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RSA No. 65 of 2013
3. H. ERAPPA
S/O ERA @ ERANNA @ HOMBALAPPA,
DEAD BY LEGAL REPRESENTATIVE'S
3(A) SRI. H.E. RANGANATHAIAH
S/O LATE H ERAPPA
AGED ABOUT 30 YEARS
3(B) SMT. CHITTAMMA
W/O LATE HE ERAPPA
AGED ABOUT 60 YEARS
3(A) & 3(B) ARE R/O CHIKKERE GOLLARAHATTI
HOSAKERE POST, MIDIGESHI HOBLI
MADHUGIRI TALUK, TUMAKURU DISTRICT.
4. BADAIAH
S/O DASANNA,
AGED ABOUT 52 YEARS,
5. BALLEKOTAPPA
S/O DASANNA,
AGED ABOUT 50 YEARS,
6. DASANNA
S/O DASANNA,
AGED ABOUT 31 YEARS,
ALL ARE R/O CHIKKERE GOLLARAHATTI,
HAMLET OF HOSAKERE,
MIDIGESHI HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT
...APPELLANTS
(BY SRI. G S VENKAT SUBBARAO., ADVOCATE)
AND:
1. KARIYANNA FOSTERED
S/O BADANNA @ BADAIAH @ BADEERANNA,
DEAD BY HIS LRS
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RSA No. 65 of 2013
1(A) ERAMMA
W/O LATE KARIYANNA,
AGED ABOUT 57 YEARS,
R/O CHIKKERE GOLLARAHATTI,
HAMLET OF HOSAKERE,
MIDIGESHI HOBLI, MADHUGIRI TALUK,
TUMKUR DISTRICT
1(B) NAGAMMA
W/O SRINIVASA
D/O LATE KARIYANNA,
AGED ABOUT 30 YEARS,
NOW RESIDING AT LINGENAHALLI VILLAGE,
BEHIND ZP OFFICE,
MADHUGIRI TOWN,
TUMKUR DISTRICT
2. BALLEKATAPPA
S/O MELAPPA, MAJOR,
R/O CHIKKERE GOLLARAHATTI,
HAMLET OF HOSAKERE,
MIDIGESHI HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT
...RESPONDENTS
[APPEAL AGAINST R2 ABATED V/O DATED 18.08.2023
R1(A) ERAMMA (ABSENT)
R1(B) SERVED]
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 22.6.2012 PASSED IN
R.A.NO.180/2006 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 16.10.2006
PASSED IN OS.NO.178/2000 ON THE FILE OF PRINCIPAL CIVIL
JUDGE (JR.DN.), MADHUGIRI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 65 of 2013
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular Second Appeal is filed by the appellants
challenging the judgment and decree dated 22.06.2012,
passed in R.A.No.180/2006 by the Additional Senior civil
Judge and JMFC, Madhugiri, confirming the judgment and
decree dated 16.10.2006 passed in O.S.No.178/2000 by
the Principal Civil Judge (Jr.Dn.), Madhugiri.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the defendants and respondent is the
plaintiff.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for declaration that he is the
owner of suit 'A' schedule properties and for permanent
injunction to restrain the defendants interfering with the
plaintiff's peaceful possession and enjoyment of 'A'
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schedule properties. It is the case of the plaintiff that,
Kariyanna - the plaintiff was the foster son of Badanna @
Badaiah @ Badeeranna. It is contended that, Papamma is
the wife of Badanna and Thipe Eranna is the brother of
Papamma. Kariyanna is the son of Thippe Eranna, who is
the brother of Papamma. Kariyanna was brought up by
deceased Badeeranna and Papamma when he was young
and being treated as a foster son of both. The plaintiff was
in the house of Badeeranna and Papamma since his
childhood and the marriage of the plaintiff was performed
by Badeeranna and Papamma. The plaintiff was looking
after Badeeranna and Papamma. Badeeranna executed a
registered Will bequeathing the suit schedule properties in
favour of the plaintiff. The original Will was with the
defendant No.3 and suit 'B' schedule properties were
bequeathed in favour of defendants. The defendants have
no right, title or interest over suit 'A' schedule properties
and they are not in possession of suit 'A' schedule
properties. In spite of it, the defendants are attempting to
interfere with the plaintiff's peaceful possession and
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enjoyment over the suit schedule 'A' properties. Hence,
cause of action arose for the plaintiff to file the suit for
declaration and injunction.
4. Defendant Nos.1 to 6 filed written statement
denying the averments made in the plaint. Defendants
denied that plaintiff is the foster son of Badeeranna and
plaintiff is nowhere related to Badeeranna. It is contended
that, plaintiff is the son of Thippe Eranna. Plaintiff is not
the resident of Chikkere Gollarahatti. It is contended that,
plaintiff never lived with Badeeranna and Papamma and
never looked after them. It is denied that Badeeranna
executed the Will dated 25.09.1975 and the said Will is
concocted and it is contended that, after the death of
defendants' father, they are in possession and enjoyment
of A and B schedule properties as per their right and got
the suit schedule properties under the decree passed in
O.S.No.214/1996. The petition filed by the plaintiff for
change of khata and Pahani in Record of Right is dismissed
by the Tahasildar. The name of the defendants are
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entered in the revenue records based on the decree
passed in O.S.No.214/1996. Hence, the petitioner has no
right over the A and B schedule properties. There is no
cause of action to file the present suit. Hence, prayed to
dismiss the suit.
5. Defendant No.7 filed a separate written
statement contending that the plaintiff is not the owner of
the suit schedule properties and the plaintiff has no right
over the well and well water and plaintiff has unnecessarily
dragged defendant No.7 to this Court. Hence, prayed to
dismiss the suit.
6. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether the plaintiff proves that he is the
foster son of Badeeranna @ Badanna?
2) Whether plaintiff proves that Badanna had
executed a Will dated 25.09.1975 and had
given 'A' schedule properties to him?
3) Whether the plaintiff proves that he is in
possession and enjoyment of thie 'A'
schedule properties with correctness to
boundaries?
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4) Whether cause of action arose to file the
suit?
5) Whether the suit properties are not valued
properly and Court fee paid is insufficient?
6) Whether plaintiff is entitled for the relief
sought?
7) What order or decree?
7. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW-1 and got examined four
witnesses as PW-2 to PW-5 and got marked 24 documents
as Exs.P1 to P24. In rebuttal, defendant No.3 was
examined as DW-1 and got examined one witness as
DW-2 and got marked 33 documents as Exs.D1 to D33.
The trial Court after assessing the oral and documentary
evidence of the parties, answered issue Nos.1 to 4 and 6
in the affirmative and issue No.5 in the negative, issue
No.7 as per the final order. The suit of the plaintiff was
decreed with costs. It was declared that the plaintiff was
the owner in possession of the suit 'A' schedule properties
and the defendants are permanently restrained from
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interfering with the plaintiff's peaceful possession and
enjoyment of the suit 'A' schedule properties.
8. The defendants, aggrieved by the judgment and
decree passed in O.S.No.178/2000, have preferred the
appeal in R.A.No.180/2006 on the file of learned Additional
Senior Civil Judge and JMFC, Madhugiri. The First Appellate
Court, after hearing the parties, has framed the following
points for consideration:
1) Whether the plaintiff to be the fostered son
of deceased Badeeranna is proved?
2) Whether the execution of the Will is
proved?
3) Whether the impugned judgment and
decree passed by the trial Court requires
interference by this Court?
4) What order or award?
9. The First Appellate Court, on re-assessing the oral
and documentary evidence, answered point Nos.1 and 2 in
the affirmative, point No.3 in the negative and point No.4
as per the final order and consequently the appeal was
dismissed, confirming the judgment and decree passed by
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the trial Court. The defendants, aggrieved by the
impugned judgments and decree passed by the courts
below, have filed this Regular Second Appeal.
10. Heard learned counsel for the defendants.
11. Learned counsel for the defendants submits that
courts below have committed an error in passing the
impugned judgments. He submits that the plaintiff is not
related to Badeeranna and the Will produced by the
plaintiff is got created and plaintiff has failed to prove the
execution of Will by Badeeranna bequeathing the suit
schedule 'A' properties in favour of the plaintiff. He also
submits that defendants have filed a suit for partition and
separate possession in O.S.No.214/1996. The said suit
was decreed. On the basis of the said decree, name of
defendants are entered in the revenue records, and said
aspect was not considered by the courts below. Hence,
impugned judgments and decree passed by the Court
below are arbitrary and erroneous. Hence, prayed to allow
the appeal.
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12. Perused the records and considered the
submissions of the learned counsel for the defendants.
13. It is not in dispute that the plaintiff filed a suit
for declaration that the plaintiff is the absolute owner of
suit 'A' schedule properties on the basis of Will executed
by Badeeranna bequeathing said 'A' schedule properties in
favour of plaintiff. Further, Badeeranna and Papamma
were treating the plaintiff as their foster son and plaintiff
was brought up by them. Thereafter he was looking after
Badeeranna and Papamma. Badeeranna executed the Will
dated 25.09.1975 bequeathing suit 'A' schedule properties
in favour of the plaintiff. Further, in order to substantiate
the case of the plaintiff, the plaintiff examined himself as
PW.1 and he has reiterated the plaint averments in the
examination-in-chief and produced several documents i.e.,
Ex.P.1 is the certified copy of the Will which discloses that
Badeeranna had executed the Will bequeathing suit 'A'
schedule properties in favour of the plaintiff.
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14. Further in order to prove the execution of the
Will, the plaintiff examined PW.2, who is the attesting
witness to Ex.P1, who has deposed that Badeeranna had
executed the Ex.P1 bequeathing suit 'A' schedule
properties in favour of the plaintiff. Further contends that
the Will was read over and explained to Badeeranna.
Badeeranna having understood the contents of Ex.P1 had
affixed his signature on Ex.P1 and PW.2 has also affixed
his signature as attesting witness. Further, the plaintiff
also examined a scribe as PW.3, who has deposed that on
the instructions of Badeeranna, he has drafted Ex.P1 and
after drafting Ex.P1, he has read over the contents of Will
and after understanding the contents of the Will he has
executed and affixed his signature on Ex.P1 and the said
Ex.P1 was registered. The said registered Will is in the
custody of defendant No.3. The plaintiff has produced
certified copy of the Will. After obtaining certified copy,
the plaintiff submitted an application for change of khata
and revenue records. The defendants filed objections
before the revenue authorities and the revenue authorities
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rejected the application of the defendants. Thereafter, the
defendants filed the suit in O.S.No.214/1996 for partition
and separate possession. In the said suit there is reference
about the execution of Ex.P1 by Badeeranna bequeathing
the properties in favour of plaintiff and others. The
defendants knowing fully well about the execution of Ex.P1
by Badeeranna, have deliberately not made the plaintiff
herein as a party in the said suit as the beneficiary under
the Will- Ex.P1, the defendants have entered into
compromise and filed the compromise petition marked as
Ex.P21 and on the basis of compromise petition, the
compromise decree came to be passed as per Ex.P22. The
plaintiff by examining attesting witnesses and scribe has
proved the execution of the Will by Badeeranna in favour
of plaintiff and others and further DW.1 in the course of
cross examination has admitted about the execution of the
Will and also there is reference about the execution of the
Will in O.S.No.214/1996.
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15. Further, DW.1 has admitted that he was aware
of Ex.P1 and said Will was not challenged by the
defendants in O.S.No.214/1996 and further there is
reference of adoption of plaintiff in Ex.P1. Even the recital
in Ex.P1 was not challenged by the defendants in regard to
the adoption of plaintiff by Badeeranna and Papamma. The
admission in the course of cross examination of
defendants in O.S.No.214/1996 is sufficient to hold that
the plaintiff has proved that he is the foster son of
Badeeranna and Papamma. Further, plaintiff has proved
the execution of Ex.P1 and on the strength of Ex.P1,
plaintiff became the absolute owner of the suit 'A' schedule
properties. The courts below considered the oral and
documentary evidence placed on record and was justified
in decreeing the suit of the plaintiffs and the first Appellate
Court on re-appreciation of material evidence on record
was justified in dismissing the appeal. Hence, I do not find
any substantial question of law that arise for consideration
in this appeal. I concur with the impugned judgments
passed by the courts below.
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16. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
ii. The judgments and decree passed by the
Courts below are hereby confirmed.
iii. No order as to the costs.
In view of disposal of the appeal, pending I.As, if
any, do not survive for consideration and accordingly
stands disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
