Karnataka High Court
Kairunnissa Hatelasab @ Hatelappa ... vs Irawwa Hatelalppa Talawar on 6 November, 2024
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NC: 2024:KHC-D:16210
RSA No. 100838 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100838 OF 2018 (DEC/INJ)
BETWEEN:
1. KAIRUNNISSA HATELASAB
@ HATELAPPA TALAWAR,
AGE: 58 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MUGAD,
TQ/DIST: DHARWAD-580007.
2. MAKBULSAB HATELASAB
@ HATELAPPA TALAWAR,
AGE: 36 YEARS, OCC: COOLIE,
Digitally
R/O: MUGAD,
signed by
VISHAL
NINGAPPA
VISHAL
NINGAPPA
PATTIHAL
TQ/DIST: DHARWAD-580007.
PATTIHAL Date:
2024.11.08
10:54:14
+0530
...APPELLANTS
(BY SRI. VINAY S. KOUJALAGI, ADVOCATE)
AND:
1. IRAWWA HATELALPPA TALAWAR
AGE: 58 YEARS,
OCC: COOLIE,
R/O: ALNAVAR,
TQ AND DIST: DHARWAD-581103.
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RSA No. 100838 of 2018
2. NAGESH HATELAPPA TALAWAR
AGE: 38 YEARS,
OCC: COOLIE,
R/O: ALNAVAR,
TQ AND DIST: DHARWAD-581103.
3. THE ASSISTANT EXECUTIVE ENGINEER
ELECTRICITY SUPPLY CORPORATION,
ADMINISTRATION AND MANAGEMENT,
HUBBALLI-DHARWAD ROAD,
DHARWAD-580006.
...RESPONDENTS
(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R3;
R1 AND R2 ARE NOTICE SERVED)
THIS RSA IS FILED U/SEC.100 READ WITH ORDER 42
RULE 1 OF CPC, AGAINST THE JUDGEMENT & DECREE
DATED 22.04.2016 PASSED IN R.A.NO.156/2014 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE, DHARWAD, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 04.09.2014, PASSED IN O.S. NO.331/2005 ON THE
FILE OF THE III ADDITIONAL CIVIL JUDGE (JUNIOR
DIVISION) AND JUDICIAL MAGISTRATE FIRST CLASS,
DHARWAD, DISMISSING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-D:16210
RSA No. 100838 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
1. Against the concurrent findings of facts recorded
by the Courts below, the plaintiffs are before this Court in
this Regular Second Appeal.
2. Suit for the relief of declaration and injunction
declaring that plaintiff No.1 is the wife of the deceased
Hatelappa @ Hatelsab and plaintiff No.2 is the son of
plaintiff No.1 and the deceased Hatelappa @ Hatelsab and
that they are entitled for service benefits of the deceased
Hatelappa @ Hatelsab.
3. It is the case of the plaintiff that the deceased
Hatelappa @ Hatelsab converted himself to Muslim Religion
and has married the first plaintiff as per their community
and from the wedlock plaintiff No.2 is born and they are
entitled for the death benefits of deceased Hatelappa @
Hatelsab.
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4. Defendant Nos.1 and 2 contested the suit of the
plaintiffs, denied the plaint averments and inter alia
specifically contended that defendant Nos.1 and 2 are wife
and son of deceased Hatelappa @ Hatelsab and denied any
relation of the plaintiffs with that of Hatelappa @ Hatelsab.
5. In order to substantiate their claim, the plaintiff
examined herself as PW1 and marked documents at Exs.P1
to P12 and also examined one witness as PW2. Defendant
No.1 examined himself as DW1 and marked documents at
Exs.D1 to D5 and also examined one witness as DW2.
6. The trial court based on the pleadings, oral and
documentary evidence arrived at a conclusion that
(i) The plaintiffs have failed to prove that the
plaintiff No.1 is the legally wedded wife of
the deceased Hatelappa @ Hatelsab &
(ii) From the wedlock of plaintiff No.1 with
deceased Hatelappa @ Hatelsab plaintiff
No.2 is born.
By the judgment and decree, the trial Court dismissed the
suit of the plaintiffs. Aggrieved, the plaintiffs preferred
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appeal before the First Appellate Court. The First Appellate
Court while re-appreciating and reconsidering the entire
oral and documentary evidence, independently, affirmed
the judgment and decree of the trial Court.
7. Heard the learned counsel appearing for the
appellants and the learned counsel appearing for
respondent No.3. Though respondent Nos.1 and 2 have
been served with the notice, they have chosen to remain
absent.
8. Suit of the plaintiffs is for declaration and
injunction. The burden is heavily on the plaintiffs to prove
that plaintiff No.1 is wife of Hatelappa @ Hatelsab who later
converted himself to Islam Religion and he was called as
Hatelsab. PW1 produced Exs. P7 and P8 to contend that the
plaintiff No.1 was married to Hatelappa. Ex.P6 shows the
name of Hatelsab. Exs.P8, P9 & P10 are the Daftar Nikah,
wherein the name is shown as Hatelsab. The plaintiff
contends that the Hatelappa had converted to Islam
Religion and was called as Hatelsab. There is no material
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forthcoming to indicate that Hatelappa is also known as
Hatelsab and there is conversion of Hatelappa to another
community, other than the mere averments in the plaint,
there is no clinching evidence to substantiate their claim.
Neither there is any evidence to indicate that plaintiff No.2
is born to plaintiff No.1 and deceased Hatelappa. On the
other hand, the material on record indicates that plaintiff
No.1 was married to one Chandsab, which is not disputed
by the plaintiffs. The trial Court arrived at a conclusion that
the plaintiff has failed to establish her relationship with that
of Hatelappa. The First Appellate Court being the last fact
finding Court reassessed and reconsidered the entire oral
and documentary evidence and arrived at a conclusion that
the plaintiff has failed to establish that she is the wife of
Hatelappa who is also known as Hatelsab and from their
marriage plaintiff No.2 is born. The manner in which the
Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that no substantial question of law arises for consideration
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in the present Regular Second Appeal to be dealt with under
Section 100 CPC and this Court pass the following:
:ORDER:
(i) The Regular Second Appeal stands
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
_____________________
(JUSTICE K.S.HEMALEKHA)
VNP / CT: VP
