IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL NO.2028 OF 2012 (PAR) BETWEEN:
1. SMT. MUNIVENKATAMMA W/O. LATE VENKATARAYAPPA, AGED ABOUT 59 YEARS, RESIDENT OF KADASEEGENAHALLI VILLAGE, NANDI HOBLI, CHICKBALLAPUR DISTRICT-562 103.
2. SMT. DYAVAMMA W/O. SRINIVASA, AGED ABOUT 49 YEARS, RESIDING AT KADASEEGENAHALLI VILLAGE, NANDI HOBLI, CHICKBALLAPUR DISTRICT-562 103.
... APPELLANTS (BY SRI R.D. RENUKARADHYA, ADV.) AND:
1. SRI BALAPPA DEAD BY HIS LRs, (a). DYAVAMMA AGED ABOUT 47 YEARS, (b). DEVARAJ AGED ABOUT 45 YEARS, (c). CHANDRAMMA AGED ABOUT 42 YEARS, (d). RAMESHA AGED ABOUT 35 YEARS, (e). SUVARNA AGED ABOUT 29 YEARS, ALL ARE CHILDREN OF LATE BALAPPA RESIDING AT GOLLAHALLI VILLAGE, KASABA HOBLI, SIDLAGHATTA TALUK – 562 105.
2. ANJANAPPA S/O LATE DODDA KOMAPPA, AGED ABOUT 51 YEARS, RESIDING AT GOLLAHALLI VILLAGE, KASABA HOBLI, SIDLAGHATTA TALUK – 562 105.
[BY SRI KALYAN R., ADV., FOR R1 (b, c, e) AND R2-(ABSENT); R1(d) IS SERVED;
APPEAL AGAINST R1(a) ABATES VIDE COURT ORDER DATED 21/08/2013.] * * * ... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 03/03/2012 PASSED IN R.A.No.127/2005 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., SIDLAGHATTA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22/10/2005 PASSED IN O.S.No.127/2001 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC., SIDLAGHATTA.
THIS REGULAR SECOND APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellants assailing the judgment and decree passed by Prl.Civil Judge (Jr.Dn.), JMFC, Sidlaghatta (hereinafter referred to as ‘trial Court’) in O.S.No.127/2001, dated 22.10.2005 having dismissed the suit and the same was confirmed by the Senior Civil Judge and JMFC, Sidlaghatta (hereinafter referred to as ‘First Appellate Court’) in R.A.No.127/2005 dated 03.03.2012.
2. Heard the arguments of learned counsel for the appellants.
3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court is that the plaintiff filed a suit against the defendants for partition and separate possession of 1/3rd share of her husband Venkatarayappa claiming that the father-in-law of the plaintiff namely Dodda Kamappa had three sons namely Venkatarayappa, Balappa and Anjanappa. There are lot of ancestral properties belongs to her father-in-law. After the death of her father-in-law, defendants were in possession and enjoyment of the suit schedule properties. Her husband died long back. Thereby, the plaintiffs are entitled for 1/3rd share of her husband Venkatarayappa. Hence, this suit.
5. In pursuant to the notice, defendants filed a common written statement by denying the averments made in the plaint as false. They also contended that there is a relinquishment deed between Venkatarayappa and the plaintiff. Also contended that the said Venkatarayappa from his childhood was a vagabond and he has not used to stay at Gollahalli Village. The said Venkatarayappa was in the habit of taking money from the defendants and their father often and often and spent lavishly for luxurious wants. Defendants and their father by selling movable and their carnings used to pay money to Venkatarayappa. As per intervention of the elders of the family and villagers, panchayath was conveyed and the said Venkatarayappa has released from the joint family properties by taking Rs.1,000/- cash on 18.05.1972 and executed relinquishment deed in favour of their father. After release from the joint family, he left Gollahalli Village and he returned to the village only at the time of his death. About 15 years back, Venkatarayappa died and the defendants had performed his funeral ceremonies. Defendant’s father also died about 5 years back prior to the death of Venkatarayappa and contended that during the partition, the joint family property has been divided Item No.1 equally. The katha was also changed in their names. Defendants are not at all aware of plaintiff Nos.1 and 2. The plaintiffs taking advantage of illiteracy and poverty of the defendants and with the collusion of others trying to knock the defendant’s property. Hence, prayed for dismissing the suit.
6. Based upon the pleading, the trial Court framed the recasted issues as under:
“1. Whether plaintiffs prove that 1st plaintiff is the legally wedded wife and 2nd plaintiff is the daughter of Venkatarayappa?
2. Whether plaintiffs further prove that suit properties are the joint family properties of plaintiffs and defendants?
3. Whether defendants prove that Venkatarayappa got himself released from joint family on 18.05.1972 and item No.2 to 5 are their self acquired properties?
4. Whether plaintiffs are jointly entitled for 1/3rd share and separate possession of suit properties?
5. What Order or Decree?”
7. To substantiate the contention of the plaintiffs, plaintiff No.1 herself examined as PW.1 and also got examined PWs.2 and 3 and defendant No.2 examined as PW.4 and they marked nine documents. Defendant No.1 examined as DW.1 and also examined one more witness as DW.2 and got marked seven documents and after considering the evidence on record, the trial Court answered Issue Nos.1, 2 and 4 in negative and Issue No.3 in the affirmative and consequently dismissed the suit. Assailing the same, the plaintiffs filed an appeal before the First Appellate Court in R.A.No.127/2005 which came to be dismissed on 03.03.2012, hence, plaintiffs before this Court.
8. Learned counsel for the plaintiffs/appellants has contended that both the Courts below have committed error in dis-believing the documents of the plaintiffs produced before the trial Court, the oral and documentary evidence adduced therein. The plaintiff No.1 was able to prove that she was the wife of Venkatarayappa and plaintiff No.2 was born out of the wedlock and their marriage was held on 04.06.1972 at Gollahalli village. Marriage invitation has been produced and the same was not accepted by the Courts below which is not correct. In spite of the defendants admitting the schedule in Item No.1 which is the joint family property, merely Ex.D7-relinquishment deed said to be executed by the Venkatarayappa which is not a ground to dismiss the suit by the trial Court and the First Appellate Court ought to have not rejected the claim of the plaintiffs. The substantial question of law is involved in this case. Hence, prayed to allow the appeal.
9. On perusal of the record, the plaintiff No.1 claimed that she is the wife of Venkatarayappa and plaintiff No.2 claimed to be daughter of Venkatarayappa. Ex.P1 is the only documents to show that the plaintiff No.1 married to Venkatarayappa. Ex.P1 though looks like the marriage invitation card, but other than Ex.P1, the plaintiff not produced any other documents like ration card, voter list or voter ID etc., of the Venkatarayappa in order to show that she was the wife of Venkatarayappa. Even otherwise, plaintiff No.2 claimed to be the daughter, but have failed to prove and produce any documents to show that she was born out of the wedlock of the plaintiff No.1 and Venkatarayappa. Though plaintiff No.2 has claimed that she studies in school, but no documents were produced and examined any of the school teacher or head master showing plaintiff No.2 was the daughter of Venkatarayappa and plaintiff No.1. Absolutely, there is no document produced before the Court to prove that the plaintiff Nos.1 and 2 are the wife and daughter of the deceased Venkatarayappa. Even they were not able to produce the address proof like voter ID, Ration card etc., to show that the Venkatarayapa and the plaintiff were residing together till the death of Venkatarayappa and not even able to show what was the date of death of Venkatarayappa and where is has died. On the other hand, the defendants claim that due to some dispute among the family members, the Venkatarayappa, the brother of defendants have executed the relinquishment deed on 18.05.1972 itself and left the village, thereafter only he came back to the Gollahalli village prior to his death and after his death, the cremation was performed by the defendants. This aspect was not been disputed by the plaintiffs and also not able to produce the date of death of the Venkatarayappa and residing together during the lifetime of Venkatarayappa.
10. Such being the case, the trial Court and First Appellate Court by considering the evidence on record had rightly rejected the claim of plaintiff Nos.1 and 2 as they are the wife and daughter of Venkatarayappa and also accepted the defendants’ contentions that the Venkatarayappa relinquished the right on 18.05.1972 prior to leaving Gollahalli village. Subsequently, execution of relinquishment deed, the plaintiff was not able to produce any documents to show that the plaintiffs have visited the house of the defendants along with Venkatarayappa even the marriage card does not reflect the names of the defendant Nos.1 and 2 as they are the brothers of Venkatarayappa.
Such being the case, the Courts below have rightly appreciated and re-appreciated the facts and dismissed the suit of the plaintiffs and rejected the claim of partition.
There is no substantial question of law involved in this appeal to admit the appeal and the appeal is devoid of merits.
Accordingly, the second appeal is dismissed.
SD/- JUDGE GBB