Second appeal by defendants challenging the first appellate court's reversal of a decree dismissing a suit for declaration and injunction. The High Court held the finding that plaintiff No.1 was the deceased's legally wedded wife was one of fact, based on family witnesses under Section 50 Evidence Act, dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:7323 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:
MANDYA DISTRICT - 571 432.
R/O P CHIITTANAHALLI VILLAGE
Digitally signed by SUMA B N
Location: High Court of Karnataka
KASABA HOBLI NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
AGED ABOUT 36 YEARS
R/O P CHIITTANAHALLI VILLAGE
KASABA HOBLI NAGAMANGALA TALUK
MANDYA DISTRICT - 571 432.
NC: 2024:KHC:7323 RSA No. 125 of 2024
R/O P CHIITTANAHALLI VILLAGE KASABA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT - 571 432.
…APPELLANTS
(BY SRI. VEERAYYA HIREMATH.,ADVOCATE)
AND:
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
NC: 2024:KHC:7323 RSA No. 125 of 2024
GOPALAPURA POST JAYAPURA HOBLI
MYSURU TALUK AND DISTRICT - 570 008.
W/O SRI KRISHNEGOWDA AGED ABOUT 40 YEARS R/O BINDIGANAVILE VILLAGE KASABA HOBLI NAGAMANGALA TALUK MANDYA DISTRICT - 571 432.
…RESPONDENTS
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.
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.
NC: 2024:KHC:7323 RSA No. 125 of 2024
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.
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.
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.
NC: 2024:KHC:7323 RSA No. 125 of 2024
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
NC: 2024:KHC:7323 RSA No. 125 of 2024
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?
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
NC: 2024:KHC:7323 RSA No. 125 of 2024
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
NC: 2024:KHC:7323 RSA No. 125 of 2024
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.
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.4Ramegowda though the said witnesses have deposed to
NC: 2024:KHC:7323 RSA No. 125 of 2024
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.
NC: 2024:KHC:7323 RSA No. 125 of 2024
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.
note of by the Trial Court about plaintiff being the wife of deceased Nanjappa.
NC: 2024:KHC:7323 RSA No. 125 of 2024
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
List No.: 2 Sl No.: 32
2 issues framed by the court
Whether plaintiff No.1 established that she was the legally wedded wife and legal heir of deceased Nanjappa so as to claim shares in his property?
Whether the first appellate court's reversal of the trial court's dismissal and moulding of relief in a declaration and injunction suit gives rise to a substantial question of law?
2 provisions across 2 enactments
Smt. Lakshmamma
Smt. Pushpa
Smt Jayamma
Smt Bhagya
Sri Kumara
Smt. Channamma
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
