Parasappa S/O Sangappa Sunagar Vs Smt.Mallavva W/O Sangappa Sunagar

SMT. MALLAVVA W/O SANGAPPA SUNAGAR, AGE: 76 YEARS, OCC: HOUSEHOLD, R/O: SAVADI, TQ: RON, DIST: BAGALKOT, NOW R/O: HOMBAL, TQ: AND DIST: GADAG-528 101.

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… RESPONDENT

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(BY MISS MANASI JIGAJINNI, AMICUS CURIAE.)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 19.06.2018 PASSED IN

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O.S.NO.79/2016 ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RON AND ETC.,.

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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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This appeal is filed by the appellants/defendant Nos.1

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to 3 challenging the judgment and decree dated 19.06.2018, passed in O.S.No.79/2016, on the file of Senior Civil Judge and Judicial Magistrate First Class, Ron (hereinafter referred to as ‘the Trial Court’ for short).

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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The plaintiff is claiming to be the 1^st wife of Sangappa Sunagar. The defendants are children of the 2^nd wife by name Parvatevva through late Sangappa. The said Sangappa Sunagar died on 29.11.2015. It is stated that the suit schedule land is ancestral property inherited by Sangappa Sunagar. Therefore, the plaintiff by claiming

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being the 1^st wife of Sangappa Sunagar had filed suit for partition by claiming half share in the suit schedule land.

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On the other hand, appellants/defendant Nos.1 to 3 have filed written statement and denied all the averments made in the plaint. Also, it is the case of defendants that their mother Parvatevva, alone was the legally wedded wife of deceased Sangappa Sunagar. The appellants/defendants specifically denied that the plaintiff is legally wedded and 1^st wife of Sangappa Sunagar and pleaded that the plaintiff is not at all wife of Sangappa Sunagar and is not concerned with the family of Sangappa

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Sunagar or the suit schedule land. Hence, prayed to dismiss the suit.

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The Trial Court has decreed the suit and granted half share in the suit schedule properties. The trial Court assigned the reason that in Ex.P.1 and P.2 record of rights the name of plaintiff is shown. In Ex.P.3 and P.4 mutation registers, the name of plaintiff is shown. Ex.P.5

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is the genealogical tree which is issued by the Secretary of

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Gram Panchayat showing the name of plaintiff as wife of Sangappa. Ex.P.13 and P.14 are the election ID card and Aadhar Card, in which the name of plaintiff is shown as wife of Sangappa. Therefore, the trial Court upon considering all these documentary evidence held that the plaintiff is wife of Sangappa Sunagar. Therefore, decreed the suit by granting half share to the plaintiff.

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Being aggrieved by the judgment and decree of

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the trial Court, the defendants have preferred appeal. The defendants have raised many grounds and the learned counsel for appellants in consonance with the grounds raised in the memorandum of appeal has argued that the plaintiff is not wife of Sangappa. This fact pleaded by the plaintiff in the plaint has been specifically denied by the defendants in the written statement. Therefore it is the case of the defendants that plaintiff is not wife of the deceased Sangappa. When this being the pleading, denying specifically that plaintiff is the wife of Sangappa,

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then the trial Court ought to have framed proper issue in this regard putting burden on the plaintiff, but the trial Court has not framed any issue in this regard resulting into erroneous judgment. Therefore, prays to set aside the judgment and decree of the trial Court by allowing the appeal.

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Learned counsel for the appellants further submitted that mere marking of the documents is not sufficient as it is ministerial act, but upon mere marking the record of rights, election ID card and Aadhar card do not prove the status of plaintiff as wife of Sangappa. Therefore, prays to allow the appeal by setting aside the judgment and decree of the trial Court.

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Learned counsel for the appellants has relied on the following decisions.

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i) Domegunta Venkatasesha Reddy vs. Gowramma and others, reported in ILR 2019 KAR 1242;

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ii) Smt.Ismailbee vs. Mehtab Saheb, reported in ILR 2021 KAR 2603.

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On the other hand, learned Amicus Curiae

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submitted that when the oral and documentary evidence are considered on all its preponderance of probabilities proving the fact that the plaintiff is wife of Sangappa and that is correctly appreciated by the trial Court, therefore, prays to dismiss the appeal by confirming the judgment and decree of the trial Court.

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Heard the arguments of learned counsel for appellants and learned Amicus Curiae appearing for respondent and perused the material placed before the Court.

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Upon hearing the arguments addressed by the learned counsels for both the sides, the following points would arise for consideration in this appeal.

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i) Whether, under the facts and circumstances involved in the case, the plaintiff proves that she is wife of the deceased Sangappa Sunagar?

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ii) Whether, under the facts and circumstances involved in the case,

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defendants No.1 to 3 prove that the plaintiff is not at all related to the deceased Sangappa Sunagar and is no way concerned with the suit schedule property?

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iii) Whether the plaintiff is entitled for share in the suit schedule property?

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iv) Whether the judgment and decree passed by the trial Court requires any interference by this Court?

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Upon considering the arguments addressed by

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both the learned counsels and the evidence on record, it is the case of the plaintiff that plaintiff is the wife of deceased Sangappa Sunagar. One Parvatevva is the second wife of deceased Sangappa Sunagar. Defendants No.1 to 3 are children of Parvatevva and Sangappa Sunagar. The bone of contention taken by the defendants is that plaintiff is not wife of deceased Sangappa Sunagar and is no way concerned with the family of Sangappa Sunagar and the suit schedule property.

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When this being the facts pleaded, the trial Court has failed to frame specific issue putting burden on

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the plaintiff to prove that she is the wife of deceased Sangappa Sunagar. Just because an omission has occurred in framing an issue, that cannot always be the ground in finding fault with the judgment and decree passed by the trial Court. Though there is no issue framed by the trial Court in this regard, it is also burden on the defendants requesting the Court to frame issue in this regard. But on a perusal of the records, it is not found that the defendants made efforts requesting the trial Court to frame issue.

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Upon appreciating the evidence on record on all

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its preponderance of probabilities, Ex.P.1 and P.2 are the record of rights in respect of the suit schedule property in which name of plaintiff and name of defendant No.1 is shown as owner of the suit schedule land in column No.9 and also cultivator of the suit schedule land. Ex.P.3 and P.4 are the mutation extracts of the suit schedule land in which it is recognized that plaintiff is wife of Sangappa Sunagar. The name of plaintiff is appearing in the said

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record of rights. Ex.P.5 is the genealogical tree issued by

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the Secretary of Gram Panchayat showing the plaintiff as wife of deceased Sangappa Sunagar. Ex.P.6 to P.9 are the Aadhar cards to show that the defendants are children of deceased Sangappa Sunagar. Ex.P.10 is the record of rights in which also it is shown as plaintiff is the wife of deceased Sangappa Sunagar. Ex.P.12 and P.13 are the election ID card and Aadhar card, in which also the name of plaintiff is shown as the wife of Sangappa Sunagar.

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Therefore upon considering all these documentary evidence and upon appreciating the documentary evidence on all its preponderance of probabilities, it is proved that plaintiff is wife of Sangappa Sunagar. The defendants have not placed any other evidence rebutting the claim of the plaintiff. Therefore in this regard the trial Court has correctly appreciated the evidence on record and rightly come to the conclusion that plaintiff is wife of deceased Sangappa Sunagar.

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The judgment relied upon by the learned

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counsel for appellant in the case of Domegunta Venkatasesha Reddy (supra) is not applicable to the case on hand since the defendants have specifically represented the suit and contested the suit. Therefore on the facts and circumstances involved in this case, this judgment is not applicable to the present case.

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Further, the judgment in the case of

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Smt.Ismailbee (supra) is not applicable to the present case, because in the present case the documents have been marked but the trial Court has taken judicial notice

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of considering the documentary evidence and acted judicially. Though marking of the document is a ministrial act, but application of mind made on it is a judicial act that is correctly made by the trial Court. Therefore, this judgment is also not applicable to the present case.

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Marking of documents though it is ministrial act, it has its own significance. Marking of documents in

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the proceedings is not only putting a number on it as a ministrial act, but also inviting other side to make a comment upon it. In the present case the plaintiff has got produced and got marked the documents, thereby the plaintiff invited defendants to make a comment upon those documents. These documents are appreciated by the trial Court while assessing and evaluating the evidence on record. Thus, the trial Court has judiciously acted upon the documentary evidence produced and got marked by the plaintiff. Therefore, the trial Court has correctly appreciated the evidence on record and correctly come to the conclusion that the plaintiff is wife of Sangappa Sunagar. Though there is no specific issue framed in this regard, but the plaintiff has discharged her burden in proving that she is the wife of deceased Sangappa Sunagar. Therefore, non framing of issue in this regard is not grave error by the trial Court and this ground alone is not sufficient reason to remand the case. Therefore, there is no merit found in the case. Thus, the judgment and

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decree passed by the trial Court is justified and found correct.

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Regarding quantum of share granted, the plaintiff is the first wife and defendants are children through the second wife. Therefore, the trial Court is correct in granting half share to the plaintiff in suit schedule land. Accordingly, I answer point Nos.1 and 3 in the affirmative and points Nos.2 and 4 in the negative.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal is dismissed.

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ii) The judgment and decree dated

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19.06.2018, passed in O.S.No.79/2016, on the

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file of Senior Civil Judge and Judicial Magistrate

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First Class, Ron, is hereby confirmed.

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iii) No order as to costs.

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iv) The Secretary, Legal Services

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Authority, High Court of Karnataka, Dharwad Bench, Dharwad, is requested to pay professional fees as per the rules to the Amicus Curiae, in this case.

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v) No order as to costs.

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vi) Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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SRA-para 1 to 5. MRK-para 6 to end. CT: BCK LIST NO.: 1 SL NO.: 21

Parasappa S/O Sangappa Sunagar v. Smt.Mallavva W/O Sangappa Sunagar

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Parasappa S/O Sangappa Sunagar v. Smt.Mallavva W/O Sangappa Sunagar

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