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NINGAVVA & OTHERS V/S BASAPPA & OTHERS, decided on Thursday, January 12, 2017.
[ In the High Court of Karnataka Circuit Bench At Dharwad, Regular First Appeal No. 100089 of 2014. ] 12/01/2017
Judge(s) : RAVI MALIMATH & K. SOMASHEKAR
Advocate(s) : Deepak Maganur, Chandashekar P. Patil, A.S. Patil, Hanumanthareddy Sahukar.
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    (Prayer: This RFA is filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree dated 03.03.2014 passed in O.S. No.14 of 2008 on the file of the Senior Civil Judge RON dismissing the suit filed for awarding 1/25th each share in the suit properties.)K. Somashekar J.1. This appeal has been preferred by the appellants by challenging the impugned judgment and decree passed in O.S.No.14 of 2008 by the learned Senior Civil Judge Ron.2. The factual matrix of the appeal is as under:The suit properties are the agricultural landed properties bearing R.S.No.360/B measuring 5 acres 10 guntas R.S.No.435/2+3+4+5/B measuring 10 acres 9 guntas R.S.No.578/1A measuring 4 acres 35 guntas R.S.No.614/4A+BCD/3+4 measuring 4 acres 24 guntas R.S.No.420/1A measuring 2 acres 21 guntas and R.S.No.608/1A measuring 2 acres 21 guntas. As these properties are situated at Nidagundi Village in Ron Taluk. The other landed properties bearing R.S.No.125/2A + 2B measuring 5 acres 27 guntas and R.S.No.125/2K measuring 4 acres 2 guntas situated at Sudi Village Ron Taluk. The other agricultural landed properties bearing R.S.No.538/570/A2 measuring 4 acres 26 guntas R.S.No.555/603/A2 measuring 2 acres 21 guntas + 04 guntas and R.S.No.551/4/1 measuring 4 acres 08 guntas 06 guntas all situated at Mudhol Village Yalburga Taluk. The genealogy also indicates in the plaint as filed by the plaintiffs against the defendants in respect of the suit schedule properties depicted therein.3. The propositus Siddappa died about 40 years back leaving behind his wife Smt. Basavva and 3 sons namely Basappa (defendant No.1) Irappa (demised without marriage) Shivappa who demised on (12.02.2003) and 3 daughters namely Irawwa (defendant No.6) Gangawwa (defendant No.7) and Balawwa @ Sharada (defendant No.8) as his legal heirs. Amongst them Shivappa S/o. Siddappa demised on 12.02.2003 leaving behind his wife Smt. Annakka (defendant No.4) and only son Manjunath defendant No.5 as his legal heirs. The plaintiff No.1 is the legally wedded wife of the defendant No.1 Basappa and plaintiff Nos.2 to 4 are the children of defendant No.1 and plaintiff No.1. The defendant No.2 is calling herself as wife of defendant No.1 and defendant No.3 calling himself as son of the defendant No.1. But the defendant Nos.2 and 3 are no way concerned to the family of the plaintiffs and defendant Nos.1 and 4 to 8 they are in joint possession and enjoyment of the same as coparceners of the Hindu Joint family. The defendant No.1 colluded with other defendants without the knowledge consent and behind the back of these plaintiffs got obtained the decree from the Hon’ble Civil Judge Sr. Dn. Gadag in O.S.No.155 of 1988 and R.A. No.16 of 2000 and R.S.A.No.418 of 2001 and FDP No.6 of 2007 just to gulp the legitimate shares of the plaintiffs. These proceedings are not binding to the extent of share of the plaintiffs in any manner. The defendants intentionally have not made these plaintiffs as the parties to the said proceedings with an ulterior motive.4. In response to the suit summons issued against the defendants the defendant No.9 has remained as ex parte and the defendant Nos.1 to 4 and 6 to 8 have put in their appearance before this Court through their learned counsels and filed their independent written statements. Similarly the defendant No.5 being the minor he has been represented by the court guardian who has been appointed duly by this Court in due process of law and procedure during the lis pendence.5. The defendant Nos.2 and 3 have filed their common written statement denying almost all the averments of the plaint and further contended that the genealogical pedigree one which is disclosed in the plaint is not true and correct. It is further contended that the defendant No.2 is the legally wedded wife of the defendant No.1 and the defendant No.3 has born from the wedlock of the defendant Nos.1 and 2 and also a daughter has born to them by name Renuka who has not been added as the party to the instant suit. Therefore the defendants pleaded for dismissal of the suit filed by the plaintiffs.6. Based upon the rival pleadings of both the parties in the suit the issues have been framed which reads as under:“1. Whether the plaintiffs prove that the plaintiff No.1 is the legally wedded wife and plaintiff Nos.2 to 4 are the legitimate children of defendant No.1?2. Whether the plaintiffs prove that suit schedule properties are the ancestral properties of plaintiffs and defendant Nos.1 and 4 to 8?3. Whether the plaintiffs prove that defendant No.1 and other defendants colluding with each other obtained collusive decree in O.S.No.155/88?4. Whether the plaintiffs prove that the judgment and decree passed in O.S.No.155/88 R.A. 16/00 and RSA 118/01 are not binding on the plaintiffs?5. Whether the defendant Nos.2 to 6 prove that the plaintiff No.1 is 2nd wife and plaintiff Nos.2 to 4 are illegitimate children of defendant No.1 and as such they are not entitled for any share in the co-parcenary/suit properties?6. Whether the plaintiffs are entitled for their shares in suit schedule properties by way of partition and separate possession? If so what is their share?7. What order of decree?”7. To substantiate their case the plaintiff Nos.2 and 1 have got examined as P.Ws.1 and 2 respectively and got marked documents as Exs.P-1 to P-34. On behalf of the defendants D.Ws.1 to 4 were examined and got marked documents as Exs.D-1 to D-26. Subsequently the learned Senior Civil Judge Ron heard the arguments of the plaintiffs and defendants and dismissed the suit. As this impugned judgment is questioned by the plaintiffs by preferring this appeal. Issue Nos.1 to 4 and 6 are held in the negative and issue No.5 in the affirmative.8. Heard the arguments in this appeal by the learned counsel for the appellants as well as the respondents.9. In view of these the point that arise for consideration in this appeal is:“Whether the judgment and decree dated 03.03.2014 passed in O.S.No.14 of 2008 is just and proper?”10. It is the case of the plaintiffs that the propositus Siddappa died about 40 years back leaving behind his wife Smt. Basavva and 3 sons namely Basappa (defendant No.1) Irappa (demised without marriage) Shivappa who demised on 12.02.2003 and 3 daughters namely Irawwa (defendant No.6) Gangawwa (defendant No.7) and Balawwa @ Sharada (defendant No.8) as his legal heirs. Amongst them Shivappa died on 12.02.2003 leaving behind his wife Smt. Annakka (defendant No.4) and only son Manjunath defendant No.5 as his legal heirs. It has stated that the plaintiff No.1 is the legally wedded wife of the defendant No.1/Basappa and plaintiff Nos.2 to 4 are the children of defendant No.1 and plaintiff No.1. The defendant Nos.2 and 3 are no way concerned to the family of the plaintiffs and defendant Nos.1 and 4 to 8. The plaintiffs demanded their legitimate share in the suit properties. But the defendant No.1 denied to give the share of the plaintiffs. The defendant No.1 colluded with other defendants to file a suit in respect of the suit schedule properties depicted therein. However the case in O.S.No.155 of 1988 on the file of the Civil Judge Senior Division Gadag as regards R.A. No.16 of 2000 and R.S.A.No.418 of 2001 and F.D.P. No.6 of 2007 the proceedings held between them only in order to call for legitimate shares of the plaintiffs. These proceedings are not binding to the extent of share of the plaintiffs in any manner. This contention is also taken by the learned counsel for the respondents in this appeal during the course of his arguments. To substantiate their case the plaintiff Nos.2 and 1 respectively have got examined as P.Ws.1 and 2 respectively and also got marked several documents as Exs.P-1 to P-34. The defendant Nos.2 3 and 4 have a defence that defendant No.2 is the legally wedded wife of the defendant No.1 and the defendant No.3 has born from the wedlock of the defendant Nos.1 and 2 and also a daughter has born to them by name Renuka who has not been added as the party to the instant suit. Therefore the suit of the plaintiff is bad for non-joinder of necessary parties. Neither the plaintiff No.1 is legally wedded wife of the defendant No.1 nor the plaintiff Nos.2 to 4 are the legitimate children of the plaintiff No.1. This aspect was also analyzed by the learned Senior Civil Judge keeping in view of the evidence of the plaintiffs as well as the defendants and also the documents got marked by them to establish their case.11. All the suit properties being the ancestral co-parcenary properties of the propositus Siddappa after his demise the defendant Nos.1 to 8 being the members of the joint family they are in joint possession of the same. The marriage of the defendant Nos.1 and 2 has taken place legally about 28 to 29 years back itself. However the defendant No.1 having ill treated the defendant No.2 by forcing her to bring the dowry from her parental house she was driven out by the defendant No.1. In order to avoid giving the share to the instant defendant Nos.2 and 3 in FDP No.6 of 2007 the defendant No.1 has deliberately with an ulterior motive got filed the instant suit through the instant plaintiffs. The instant defendant No.1 has clearly admitted in the said Criminal Miscellaneous No.47 of 1988 that the instant defendant No.2 is his legally wedded wife and defendant No.3 and one Renuka are his legitimate children.12. Per contra to substantiate their case the defendant Nos.2 4 7 and 8 themselves have got examined as D.Ws.1 to 4 respectively by reiterating the entire averments of the written statement filed by them. It is necessary to state that it is incumbent upon the Court to make it clear that on meticulous perusal of the averments of the defendant Nos.2 and 3 in their common written statement it has been clearly averred therein that the defendant No.1 has married the plaintiff No.1 during the life time of his first wife i.e. the instant defendant No.2 and the said plaintiff Nos.2 to 4 have born to the plaintiff No.1 and defendant No.1 illegitimately. But the defendant No.2 is the legally wedded wife of the defendant No.1 and from their nuptial relationship the defendant Nos.3 and 9 have born. Therefore it clearly indicates that the defendant Nos.2 and 3 have admitted that the marriage of the plaintiff No.1 with the defendant No.1 and also the plaintiff Nos.2 to 4 are the children born from the relationship between the plaintiff No.1 and defendant No.1. The only point in dispute that the marriage between the plaintiff No.1 and defendant No.1 is a void marriage since it has taken place during the life time of the first wife of the defendant No.1 i.e. the instant defendant No.2 and also the status of the plaintiff Nos.2 to 4 are the illegitimate children of the plaintiff No.1 and defendant No.1. This aspect was also analyzed by the learned Senior Civil Judge keeping in view of the evidence adduced by the plaintiff and also produced the documents to establish their case against the defendants in respect of the suit schedule property.13. Similarly the evidence of the defendants as well as the documents which were to be raised for to take their contention in the written statement which has been filed but in all these circumstances it is incumbent upon this Court that whether the defendant No.2 is the first legally wedded wife of the defendant No.1 or the plaintiff No.1 is the legally wedded wife of the defendant No.1. However it is needless to state that plaintiff No.1 herself got examined as P.W.2 though endeavored to depose in pursuance with her case she has stated in her cross- examination by the learned counsel for the defendant Nos.2 and 3 that her marriage has been solemnized with the defendant No.1 in the year 1980 specifically on Basava Jayanti day in Nidagundi Village. But she does not know as to where it has been placed as she is illiterate. It is further stated by the P.W.2 that she has not at all endeavored to search and trace out her wedding card after filing the written statement by the defendant No.2. According to P.W.2 when the wedding card was printed and as per the versions of the P.W.3 he being the resident of the same lane in which the other witnesses as well as the defendant No.1 were residing but it is very difficult to understand this aspect of the evidence placed on record by the defendants. This evidence was also analyzed by the learned Senior Civil Judge keeping in view of the evidence placed by the parties to establish their case.14. Defendant No.2 herself got examined as D.W.1. Though endeavoured to depose in pursuance of her written statement she has clearly admitted in the cross-examination by the learned counsel for defendant No.5 that the defendant No.3 has also the share in the suit properties. Apart from that she has been clearly stated in the cross-examination by the learned counsel for the plaintiffs that she has produced the wedding card in respect of her marriage taken place in the month of January 1980 with the instance of the 1st defendant.15. P.W.3 wherein he has clearly stated that he does not know as to the defendant No.2 is the legally wedded wife of the defendant No.1. Lateron immediately during the said spur of moment again P.W.3 has changed his version and denied the same.16. It is also significant to note that during the time of the marriage between the plaintiff No.1 and defendant No.1 the instant defendant No.2 had issued a public notice in the public newspaper not to give any bride to the defendant No.1 for second marriage. It is the specific defence of the defendant No.2 that prior to marrying the plaintiff No.1 the defendant No.1 had ill treated her and driven out from his house and thereafter the said defendant No.1 has married the plaintiff No.1 illegally as second wife. In connection with the said it is also contended by the defendant Nos.2 and 3 that after the said second marriage of the defendant No.1 with the plaintiff No.1 in the year 1989 she had filed the private complaint. In the instant appeal it reveals to state that D.W.4 who appears to have colluded with the plaintiffs has clearly admitted regarding the filing of the civil proceedings up to the R.A. No.16 of 2000 in which the shares have been decided but depicted her ignorance regarding the further appeal. In addition to the same D.W.4 has also clearly stated that if her share is given as per the modification made in R.A. No.16 of 2000 it would suffice. However it clearly goes to indicate that D.W.4 is in agreement with the civil proceedings already taken place up to this Court. Merely having depicted the ignorance by the P.W.2 with respect to the civil proceedings as stated herein before supra in respect of which the documents are placed on record by the defendant Nos.2 and 3 as per Ex.D-14 to 22 it cannot be stated that there was no any decision made with respect to the allotment of shares to the instant defendant Nos.2 and 3. As this aspect of the evidence was also analyzed by the learned Senior Civil Judge keeping in view of the evidence adduced by the defendants to establish their case.17. In addition to the same the instant defendant Nos.2 3 and 9 had preferred a criminal miscellaneous case against the instant defendant No.1 seeking for the maintenance in Criminal Miscellaneous Case No.47 of 1988. Even otherwise if the said documentary evidence placed on record as per Exs.D-1 to D-12 are ignored for the time being in one angle it is clear from the document evidence placed on record as per Exs.D-14 to D-22 with respect to the civil proceedings taken place between the instant defendant Nos.2 and 3 against the defendant No.1 and others that the instant defendant No.2 is the legally wedded wife of the defendant No.1 and the defendant Nos.3 and 9 are their legitimate children. This aspect of the evidence was also analyzed by the learned Senior Civil Judge in respect of the suit schedule properties between the plaintiffs and the defendants depicted therein.18. It is relevant to state that plaintiffs have placed the documents as Exs.P-20 to P-22 but the said documents disclose regarding the birth of the plaintiff Nos.2 to 4 only after 1990 but not prior to the same.19. All these circumstances basing on the rival oral as well as the documentary evidence placed on record by both the sides it is crystal clear that the plaintiff No.1 is not the legally wedded wife of the defendant No.1. More specifically in the year 1980 but the defendant No.2 is the legally wedded wife of the defendant No.1 having married in the year 1980 January itself. It is the specific case of the plaintiff that the defendant No.1 and other defendants colluded with each other and have obtained the collusive decree in O.S.No.155 of 1988 and therefore the judgment and decree passed in O.S.No.155 of 1988 R.A. No.16 of 2000 and R.S.A.No.418 of 2001 are not binding on them since the said judgment and decrees are being obtained collusively just to engulf the legitimate shares of the plaintiffs.20. The learned Senior Civil Judge keeping in view of the evidence of the parties as well as the documents adduced by them to establish their case in respect of the suit schedule properties are concerned it has opined that the plaintiffs have utterly failed to establish that plaintiff No.1 is the legally wedded wife and plaintiff Nos.2 to 4 are the legitimate children of the defendant No.1 and the suit properties are the joint family ancestral properties of themselves and defendant Nos.1 and 4 to 8 and the defendant No.1 and other defendants colluded with each other. Therefore the learned Senior Civil Judge answered issue Nos.1 to 4 in the negative and issue No.5 in the affirmative as for the reasons stated in the impugned judgment.21. It is relevant to state that issue No.6 it is to be discussed at length keeping in view of the issue Nos.1 to 4 in the negative and issue No.5 in the affirmative had arrived at a conclusion and held substantially that the plaintiff No.1 is not the legally wedded wife and plaintiff Nos.2 to 4 are not legitimate children of defendant No.1. However the learned Senior Civil Judge was granted liberty to the plaintiff after the death of his father to file a suit for adjudication in respect of the suit schedule properties. But the same has not been incorporated in the impugned judgment and decree passed by the learned Senior Civil Judge Ron. Therefore keeping in view of the contention as taken by the learned counsel for the appellants as well as learned counsel for the respondents we are of the opinion that the plaintiffs/appellants are at liberty to file fresh suit for adjudication in respect of the properties.22. For the aforesaid reasons and findings we are of the opinion that there are no good grounds urged in this appeal. However the judgment and decree dated 03.03.2014 in O.S.No.14 of 2008 passed by the learned Senior Civil Judge Ron is hereby modified to the extent of that the plaintiffs are at liberty to file a fresh suit for adjudication in respect of the share of their property after the death of their father and to claim such legal rights as available to them in law.23. Accordingly we proceed to pass the following:ORDERAppeal filed by the appellants under Section 96 of the Code of Civil Procedure is dismissed with the aforesaid modification.No costs.