IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.36 of 2011 (INJ) BETWEEN:
1. SRI PRABHUSWAMY, S/O NANJUNDA DEVARU, AGED ABOUT 32 YEARS, 2. SMT. KANTHAMMA, D/O ANNOJAPPA, AGED ABOUT 63 YEARS, APPELLANTS NO.1 AND 2 ARE RESIDENTS O KANTHEPURA, KAMSAMUDRAM HOBLI, BANGARPET TALUK.
...APPELLANTS (BY SRI MURALI T.N., ADVOCATE) AND:
SMT. PARVATHAMMA, D/O ERANNA, W/O KANTHE WODIYAR, AGED ABOUT 52 YEARS, RESIDENTS OF KANTHEPUR, KAMSAMUDRAM HOBLI, BANGARPET TALUK, SINCE DEAD BY HER LRS:
1(a). UMADEVI D/O. LATE PARVATHAMMA, AGED ABOUT 35 YEARS, 1(b). JAYAMALA, D/O. LATE PARVATHAMMA, AGED ABOUT 32 YEARS, 1(c). SHOBHA, D/O. LATE PARVATHAMMA, AGED ABOUT 29 YEARS, 1(d). SHIVAKUMAR, S/O. LATE PARVATHAMMA, AGED ABOUT 23 YEARS, 1(e). SHILPA, D/O. LATE PARVATHAMMA, AGED ABOUT 19 YEARS, ALL ARE RESIDENTS OF KANTHEPURA VILLAGE, KAMASAMUDRAM HOBLI, BANGARPET TALUK.
… RESPONDENTS (BY SRI ABHINAV R., ADVOCATE FOR R1(a-e) THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 24.08.2010 PASSED IN R.A.No.121 of 2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KGF, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.10.2007 PASSED IN O.S.NO.135 of 2004 (O.S.NO.230/2002) ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC AT BANGARPET.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is filed by the defendants assailing the judgment and decree passed by the Civil Judge (Jr.Dn.) and JMFC, Bangarpet, in O.S.No.135/2004 (old O.S.No.230/2002) dated 30.10.2007 and the same was confirmed by the Fast Track Court, KGF, in RA.No.121/2007 dated 24.08.2010.
2. Heard the arguments of learned counsel for the appellants. Learned counsel for the respondents is not present.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The plaintiffs filed a suit for permanent injunction restraining the defendants, their family members, agents and their representatives from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties, more fully, described in the schedule plaint, alleging that she has acquired the suit schedule properties under a registered Will dated 01.02.2001 executed by her mother-in-law and her mother-in-law namely Nanjamma has died on 06.06.2001. Thereafter, her name was mutated in the revenue records and since then, she is in peaceful possession and enjoyment of the suit schedule properties. The defendants not having any right, title and interest over the suit schedule properties tried to obstruct the peaceful possession and enjoyment of the plaintiff. Hence, the plaintiff filed a suit for the relief of permanent injunction.
5. In pursuance to the notice, the defendants appeared before the trial Court and filed the written statement by denying the averments made in the plaint as false and contended that the suit schedule properties belongs to Nanjamma who is the wife of Prabhuswamy and she died on 06.06.2001 and denied the execution of registered Will dated 01.02.2001 in favour of the plaintiff. It is also contended that defendant No.1 already filed a suit in OS.No.42/2001 on the file of II Addl. Civil Judge (Jr.Dn.), KGF, during the year 2001 for partition of the properties belonging to Nanjamma. During the pendency of the said suit, Nanjamma died and her legal heirs were brought on record. It is further contended that the plaintiff’s husband is a habitual litigant and he has concocted the Will. Hence, the defendants prayed for dismissal of the suit.
6. Based on the rival pleadings, the trial Court framed four issues, which reads as under:
1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?
2. Whether he further proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief sought for?
4. What order or decree?
7. In order to substantiate the contention, the plaintiff herself was examined as P.W.1 and examined two more witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P.1 to P.10. On behalf of the defendants, 1st defendant was examined as D.W.1 and got marked the documents as Exs.D1 to D4.
8. After hearing the arguments of the parties, the trial Court answered issue Nos.1 to 3 in favour of the plaintiff and decreed the suit by judgment and decree dated 30.10.2007. Assailing the said judgment and decree, the defendants preferred RA.No.121/2007 before the Fast Track Court, KGF.
9. The Fast Track Court after hearing the arguments has formulated the points for consideration, which reads as under:
1. Whether the judgment and decree passed by the trial Court under appeal is perverse, capricious and arbitrary and it calls for any interference by this court?
2. What order?
10. The Fast Track Court answered point No.1 in negative and by judgment and decree dated 24.08.2010 dismissed the appeal filed by the defendants. Assailing the judgments of both the court below, the defendants are before this Court in this second appeal.
11. The learned counsel for the appellants has contended that both the court below has committed an error in accepting the registered Will executed by Nanjamma who is the mother-in-law of the plaintiff, even though the property was acquired by Nanjamma through her father, but she was bed ridden and not executed any Will in favour of the plaintiff. By taking advantage, husband of the plaintiff concocted the Will in the favour of the plaintiff and revenue records were also mutated in the name of the plaintiff. Therefore, the appellants also filed a suit for partition, which was pending. Therefore, there is substantial question of law involved in this appeal for admitting the appeal. It is also contended that the observation of the trial Court as well as the 1st Appellate Court was against the documentary evidence. Hence, he prayed for admitting the appeal and setting aside the judgment and decree of both the courts below.
12. Though, the respondents were represented through their counsel, but not appeared in the matter.
13. On perusal of the records, it goes to show that both the Courts below have given concurrent findings against the appellants. Admittedly, the plaintiff filed a suit for permanent injunction restraining the defendants, their family members, agents and their representatives from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties. The said property originally belongs to her mother-in-law by name Nanjamma and the same was executed in favour of the plaintiff through registered Will dated 01.02.2001. But the said Nanjamma is said to have died on 06.06.2006. Admittedly, the defendants had already filed a suit in O.S.No.42/2001 for partition of the properties belonging to said Nanjamma. During the course of arguments, it is submitted by the learned counsel and also it is revealed from the judgment of the 1st Appellate Court that the suit in O.S.No.42/2001 filed for partition on the file of II Additional C.J., (Jr.Dn.) KGF came to be dismissed on ground that the children of Nanjamma have not filed any suit for partition, whereas the grandson who is defendant No.1 before the trial Court filed a suit for partition of the properties belonging of his grand mother.
14. Learned counsel for the appellant also submitted that the defendants have already filed a suit in O.S.No.68/2011 challenging the validity of the registered Will executed by the deceased Nanjamma in favour of the plaintiff, which is pending for consideration.
15. Upon considering the evidence on record, Will-Ex.P1 dated 01.02.2001 is marked before the trial Court and Ex.P2 is the death certificate of said Nanjamma who died on 06.06.2001. After the death of said Nanjamma, the revenue records were mutated in the name of the plaintiff. Exs.P4 to P7 are the RTC extracts. Exs.P9 and 10 are the certified copies of the judgment and decree of the suit filed by the appellant in O.S.No.42/2001 which came to be dismissed.
16. Admittedly, the plaintiff is said to be in possession and enjoyment of the suit schedule property which was acquired through registered Will dated 01.02.2001 executed by her mother-in-law (Nanjamma) and subsequently, Nanjamma died on 06.06.2001 after four months from the date of alleged execution of the Will. Admittedly, the defendants have filed the suit in O.S.No.68/2011 challenging the validity of the will which is pending before the Civil Judge at Bangarpet. The suit of the plaintiff is also for permanent injunction. The trial Court by considering the evidence on record has rightly held that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit and the suit filed by the defendant challenging the validity of the alleged will said to be executed by Nanjamma has been questioned before the competent Court of law. Till then, the possession of the plaintiff required to be protected. The reasonings of the trial Court as well as the First Appellate Court call for no interference as there is no infirmity in concurrent findings of both the Courts below.
17. By considering the evidence on record, the trial Court has rightly decreed the suit and the First Appellate Court also rightly dismissed the appeal. Therefore, there is no substantial question of law involved in this appeal to admit the appeal. Hence, the appeal is devoid of merits. Accordingly, the appeal is dismissed.
18. Any observation made in this appeal will not come in the way of Court in disposing the matter in O.S.No.68/2011.
Sd/- JUDGE PB/GBB