Sri Balappa S/O Mallappa Amate Vs Sri Rajaram S/O Maruti Kalebere

THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD: 04-01-2010 IN R.A.NO:16/2001 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AND ADHOC DISTRICT COURT, HUKKERI AT HUKKERI, REVERSING THE JUDGEMENT AND DECREE DTD: 08-12-2000 PASSED IN O.S.NO:350/1997 (OLD NO. 85/1995) ON THE FILE OF THE CIVIL JUDGE (JR.DN) SANKESHWAR, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN RSA NO. 5914/2011

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BETWEEN:

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SMT. CHANDRABHAGA W/O SHANKAR KALEBERE, AGE: 61 YEARS, OCC: HOUSEHOLD & AGRICULTURE, TQ. HUKKERI, DIST. BELAGAVI,

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THROUGH HER GPA HOLDER SRI. ISHWAR PARASU MALI, AGE: 71 YEARS, R/O. KANAGALA, TQ. HUKKERI, DIST. BELAGAVI.

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1A. SMT. SWATI W/O ANIL KHATAVKAR, AGE. 45 YEARS, OCC. HOUSEWIFE, R/O. SHASTRINAGAR, BELAGAVI.

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…APPELLANTS

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(BY SRI. B.K. MALLIGAWAD , ADVOCATE)

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AND:

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SRI. RAJARAM MARUTI KALEBERE, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. KANAGALA, TQ. HUKKERI, DIST. BELAGAVI, SINCE DEAD BY HIS LRS.

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1A. SUBHASH S/O RAJARAM KALEBERE, AGE. 53 YEARS, OCC. PRIVATE WORK,

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1B. NAMADEV S/O. RAJARAM KALEBERE, AGE. 52 YEARS, OCC. PRIVATE WORK.

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1C. PRAMILA D/O RAJARAM KALEBERE, AGE. 50 YEARS, OCC. PRIVATE WORK.

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ALL ARE R/O. HAWLDAR GALLI, BAZARPETH, VILLAGE. KANAGALA, TQ. & DIST. BELAGAVI.

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SRI. VILAS ANANT BAYAPALE, AGE: MAJOR, OCC: BUSINESS, R/O. SATAGAN, TQ. BHUDARGAD, DIST. KOLHAPUR- 590001.

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SMT. SUNITA W/O UMESH MALAWADE, SINCE DEAD BY HER LRS.

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PRIYANKA UMESH MALAVADE, AGE. MINOR, REP. MINOR GUARDIAN FATHER UMESH MALAVADE, AGE: MAJOR, OCC: SERVICE, R/O. HIREBAGEWADI, TQ. AND DIST. BELAGAVI- 590001.

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POOJA D/O. UMESH MALAVADE, AGE. MINOR, REP. MINOR GUARDIAN FATHER UMESH MALAVADE, AGE: MAJOR, OCC: SERVICE, R/O. HIREBAGEWADI, TQ. AND DIST. BELAGAVI- 590001.

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KUMARI. ROOPA PANDURANG PETKAR, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O. EXAMBA, TQ. CHIKODI, DIST. BELAGAVI- 590001.

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JAYAWANT VASANT BONGALE, AGE: 43 YEARS, OCC: BUSINESS, H. NO. 848, ACHARYA GALLI, SHAHAPUR, BELAGAVI- 590001.

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RAJESH VASANT BONGALE, AGE: 41 YEARS, OCC: BUSINESS, H. NO. 848, ACHARYA GALLI, SHAHAPUR, BELAGAVI- 590001.

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…RESPONDENTS

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(BY SRI. SANTOSH B. MALAGOUDAR, ADVOCATE FOR R1(A-C), NOTICE TO R2, R5, R6 & R7 ARE SERVED UNREPRESENTED)

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THIS RSA IS FILED U/SEC.100 CPC., AGAINST THE JUDGEMENT & DECREE DTD:17-08-2011 IN R.A.NO.25/2005 ON THE FILE OF THE FAST TRACK COURT AND ADHOC DISTRICT JUDGE, HUKKERI, AT HUKKERI, CONFIRMING THE JUDGMENT AND DECREE DTD:18-03-2005 IN O.S.NO.217/1998 ON THE FILE OF THE CIVIL JUDGE(JR.DN.) SANKESHWAR, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

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RSA No.5208/2010 is filed by the plaintiff challenging the judgment and decree dated 04.01.2010 passed in R.A.No.16/2001 on the file of the Fast Track and Adhoc District Court, Hukkeri, allowing the appeal and setting aside the judgment and decree dated 08.12.2000 passed in O.S.No.350/1997 on the file of the Civil Judge (Jr.Dn.), Sankeshwar decreeing the suit of the plaintiff in part.

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RSA No.5914/2011 is filed by the plaintiff challenging the judgment and decree dated 17.08.2011 passed in R.A.No.25/2005 on the file of the Fast Track and Adhoc District Court, Hukkeri, dismissing the appeal and confirming the judgment and decree dated 18.03.2005 passed in O.S.No.217/1998 on the file of the Civil Judge (Jr.Dn.), Sankeshwar dismissing the suit of the plaintiff.

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Since issues involved in these appeals and

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subject matter of the suit schedule properties are identical

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in respect of the common parties and as such appeals were clubbed, heard together and disposed of by this common judgment.

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For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the Trial Court in O.S.No.217/1998.

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The facts in nutshell for the purpose of adjudication of the appeals are that the plaintiff in O.S.No.217/1998 stated that the schedule ‘A’ and ‘B’ properties are originally belonging to the propositus – Maruti. Sri.Maruti had six children namely Sri.Rajaram Maruti Kalebere (defendant No.1), Sri.Shankar (husband of the plaintiff), Shusheela (defendant No.3), Sonabai (died without leaving legal representatives), Smt.Indubai (since dead represented by her legal representatives defendants No.4A and 4B) and Saraswati (died leaving behind son – Sri.Vilas Anant Bayapale (defendant No.2)).

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It is the case of the plaintiff that the original propsitus – Maruti died during 1973 leaving behind the legal

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representatives to succeed to the properties mentioned at

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schedule ‘A’ and ‘B’. It is further stated that after the death of her husband- Shankar, plaintiff gave varadi to the revenue authorities to delete the name of her husband and include the name of the plaintiff in his place and defendant No.1 has filed objection to the same. The Deputy Tahasildar, after conducting enquiry, entered the name of the plaintiff to the half share of schedule properties. It is further stated that the plaintiff is paying tax to the revenue authorities and in the meanwhile, defendant No.1

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has challenged the order passed by the Tahasildar in an appeal before the Assistant Commissioner, which came to be allowed, hence, plaintiff has filed O.S.No.217/1998 seeking relief of partition and separate possession in respect of suit schedule properties.

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After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of defendant No.1 that the son of the original

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propositus – Shankar died on 01.07.1987 as a bachelor and therefore disputes the relationship of the said Shankar with the plaintiff and accordingly sought for dismissal of the suit. Defendants No.2 to 4 have filed written statement and supported the case of the plaintiff.

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On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. In order to establish the case, plaintiff has examined three witnesses as PW.1 to PW.3 and got marked 33 documents as Exs.P1 to P.33. On the other hand, defendants have examined two witnesses as DW.1 and DW.2 and got marked 16 documents as Exs.D1 to D.16.

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The Trial Court, after considering the material on record, by its judgment and decree dated 18.03.2005 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.25/2005 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the facts on record,

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by its judgment and decree dated 17.08.2011, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in O.S.No.217/1998. Being aggrieved by the dismissal of R.A.No.25/2005, the appellant/plaintiff has preferred Regular Second Appeal No.5914/2011 under Section 100 of CPC.

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The facts in nutshell for the purpose of adjudication of RSA No.5208/2010 are that the plaintiff in O.S.No.350/1997 (old O.S.No.85/1995) has filed suit for permanent injunction restraining the defendant from interfering with the suit schedule properties. It is stated in the plaint that portion of the land bearing Sy.No.61/3 measuring 1 acre 23 gunta situate at Kanagala village was originally belong to the original propositus – Maruti. Sri.Maruti had six children namely Sri.Rajaram Maruti Kalebere (defendant), Sri.Shankar (husband of the Chandrabhaga - plaintiff in O.S.No.217/1998), Shusheela, Sonabai (died without leaving legal representatives), Smt.Indubai and Saraswati. It is the case of the plaintiff

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that the land bearing Sy.No.61/3 was allotted to the share

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of Shankar in the joint family partition and the said Shankar died leaving behind his wife – Chandrabhaga. It is further stated in the plaint that the plaintiff has purchased the schedule property from the said Chandrabhaga as per the registered sale deed dated 02.03.1994 and the vendor has put the plaintiff into possession of the suit schedule property. It is further stated in the plaint that the defendant has interfered with the suit schedule property, hence, the plaintiff has filed O.S.No.350/1997 seeking relief of permanent injunction against the defendant.

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After service of summons, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of defendant that the son of the original propositus – Shankar died on 01.07.1987 as a bachelor and therefore disputes the relationship of the said Shankar with the vendor of the plaintiff – Chandrabhaga and accordingly sought for dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. In order to establish the case, plaintiff has examined four witnesses as PW.1 to PW.4 and got marked 11 documents as Exs.P1 to P.11. On the other hand, defendant was examined himself as DW.1 and got marked 22 documents as Exs.D1 to D.22.

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The Trial Court, after considering the material on record, by its judgment and decree dated 08.12.2000 decreed the suit of the plaintiff in part and being aggrieved by the same, the defendant has preferred Regular Appeal in R.A.No.16/2001 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 04.01.2010 allowed the appeal and set aside the judgment and decree passed by the Trial Court in O.S.No.350/1997. Being aggrieved by the same, the appellant/plaintiff has preferred Regular Second Appeal No.5208/2010 under Section 100 of CPC.

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This Court vide order dated 22.06.2010

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formulated the following substantial questions of law in RSA No.5208/2010:

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“1) Whether the lower appellate Court has erred in coming to the conclusion that no objection can be granted against the co-owner?

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2) Whether the lower appellate Court has erred in dismissing the suit of the plaintiff on the sole ground that the plaintiff has not sought for joint possession of the suit property and thus granting of joint possession by the trial Court is erroneous?

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3) Whether the lower appellate Court has erred in holding that plaintiff has to seek for partition for allotment of specific share without considering the fact that already suit is filed by the vendor for partition and separate possession and the plaintiff is seeking for permanent injunction in respect of the specific portion of the property as per the sale deed?

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4) Whether the lower appellate Court has erred in refusing to granting permanent injunction in favour of the plaintiff when the lower appellate Court rightly holds that the vendor of the plaintiff had right over the property of the deceased Shankar?”

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This Court vide order dated 26.08.2020

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formulated the following substantial question of law in RSA No.5914/2011:

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“Whether the Court below has erred in appreciating oral evidence of PW.2 and PW.3 and considering the documents at Exs.P.3 to 13, 15, 24, 28 and admission of genealogical tree by defendant Nos.2 to 4 in their written statement with regard to the relationship of plaintiff with Shankar S/o Maruthi Kalabere?”

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I have heard Smt.Surabhi Kulkarni, learned

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counsel for the appellant in RSA No.5208/2010, Sri.B.V.Somapur and Sri.Santosh B Malagoudar for respondent No.1 (a-c) and also I have heard Sri.B.K.Malligawad for the appellant in RSA No.5914/2011 and Sri.Santosh B Malagoudar for respondent No.1 (a-c) and Sri.A.S.Patil for respondents No.3 and 4.

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Learned counsel for the appellant in RSA No.5914/2011 argued that both the Courts below failed to consider the relationship between Shankar and the plaintiff as husband and wife respectively and in this regard he refers to Ex.P.28 wherein defendant No.1 – Rajaram has filed appeal before the Revenue Authority stating that the

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plaintiff is the wife of Shankar. He also refers to the evidence of PW.2 and PW.3 and argued that the marriage

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between defendant No.1 with the plaintiff was proved with cogent evidence and therefore as the schedule properties are joint family properties of children of original propositus Maruti and as such the plaintiff, being the wife of Shankar is entitled for share in the joint family property and therefore he argued that, both the Courts below have committed an error in rejecting the claim made by the plaintiff. It is also the submission of the learned counsel for the appellant that defendants No.2 to 5 (sisters-in-law of the plaintiff) admitted that plaintiff is the legally wedded wife of Shankar and therefore, the finding recorded by both the Courts below requires to be interfered with.

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Per contra, Sri.Santosh B Malagoudar, learned

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counsel for respondent No.1 (a-c) contends that both the Courts below have arrived at a conclusion that the plaintiff is not the legally wedded wife of late Shankar and in this regard he argued that the documents produced by the plaintiff cannot be considered to substantiate the marriage

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between the plaintiff with the said Shankar and accordingly sought for dismissal of the appeal.

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Smt.Surabhi Kulkarni, learned counsel for the appellant in RSA No.5208/2010 argued that the appellant has purchased the suit schedule property from Smt.Chandrabhaga wife of Shankar through a registered sale deed and as the schedule property had fallen to the share of Shankar through a partition in the joint family of late Maruti and accordingly sought for interference of this Court. She further contended that the Court below has not properly appreciated the Ex.P.8 and evidence of DW.1 in O.S.No.350/1997 and as such sought for interference of this Court.

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Per contra, Sri.B.V.Somapur, learned counsel for respondent No.1 (a-c) contended that the Trial Court has not considered the factual aspect on record in a right perspective and further as the relationship between the late Shankar with Chandrabhaga was disputed and same was not proved in O.S.No.217/1998 and accordingly same

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was set-right by the First Appellate Court and as such sought for dismissal of the appeal.

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Heard the learned counsel appearing for both the parties and I have carefully examined the original records. The issue involved in these appeals is with regard to ascertain the relationship between Chandrabhaga (plaintiff in O.S.No.217/1998) with late Shankar. In order to establish her relationship with late Shankar, the plaintiff in O.S.No.217/1998 has produced voters list at Ex.P.24 wherein name of the husband was shown as Shankar. RTC extracts as per Exs.P.1 to P.13 show the name of the plaintiff as the wife of late Shankar. Ex.P.15 – LIC policy of late Shankar wherein the name of the plaintiff - Chandrabhaga was shown as the wife.

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It is also to be noted that, the plaintiff has

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examined PW.2 and PW.3 who are the neighborers of the plaintiff who have deposed that the marriage between late Shankar with the Chandrabhaga was held nearly 40 years ago and they were residing together. It is also to be noted

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that defendant No.1 – Rajaram has filed appeal before the Revenue Authorities stating that the said Chandrabhaga was the wife of Shankar. In that of the matter, taking into consideration the aforementioned documents, I am of the view that, both the Courts below in RSA No.5914/2011 have committed an error in not appreciating the material on record in a right perspective.

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It is also to be noted that the sisters of defendant No.1 – Rajaram and Shankar have supported the case of the plaintiff that the Shankar married Chandrabhaga – plaintiff and therefore, interference is called for in this appeal and taking into consideration the evidence on record would makes it clear that the plaintiff – Chandrabhaga is the wife of late Shankar and therefore the finding recorded by both the Courts below requires to be set aside in this appeal.

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Insofar as RSA No.5208/2010 is concerned, the

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Trial Court after considering the material on record with regard to the sale deed dated 02.03.1994 (Ex.P.1) said to

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have been executed by Smt.Chandrabhaga in favour of the plaintiff for valuable consideration of Rs.45,000/- and the said property is the joint family property of late Shankar and therefore, the suit in O.S.No.350/1997 has been rightly decreed by the Trial Court restraining the defendant from interfering with the suit schedule property. The said aspect of the matter was misconstrued by the First Appellate Court and without considering the fact that the Chandrabhaga had married late Shankar and further Shankar and defendant were the brothers and as such entitled for share in the suit schedule property equally and therefore, First Appellate Court has committed error in interfering with the reasoned judgment and decree passed by the Trial Court in O.S.NO.350/1997.

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Having arrived at a conclusion to decree the suit in O.S.No.217/1998 as mentioned above, I am of the view that the First Appellate Court in R.A.No.16/2001 has committed error in allowing the appeal and therefore RSA No.5208/2010 requires to be allowed.

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Hence, the substantial questions of law framed

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above favours the plaintiff in O.S.No.217/1998 (Chandrabhaga) and the plaintiff in O.S.No.350/1997 (Balappa Mallappa Amate). Hence, I pass the following:

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ORDER

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i. RSA 5208/2010 and RSA No.5914/2011 are hereby allowed.

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ii. Judgment and decree dated 04.01.2010 in R.A.No.16/2001 on the fie of the Fast Track and Adhoc District Court, Hukkeri is hereby set aside by confirming the judgment and decree dated 08.12.2000 in O.S.No.350/1997 (old O.S.NO.85/1995) on the file of Civil Judge (Jr.Dn.) Sankeshwar.

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iii. Judgment and decree dated 17.08.2011 in R.A.No.25/2005 on the fie of the Fast

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Track and Adhoc District Court, Hukkeri

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