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Vithal v/s Shantabai & Others

    Regular First Appeal No. 200020 of 2016

    Decided On, 13 March 2018

    At, High Court of Karnataka Circuit Bench OF Kalaburagi

    By, THE HONOURABLE MR. JUSTICE RAGHVENDRA S. CHAUHAN & THE HONOURABLE MR. JUSTICE R. DEVDAS

    For the Appellant: Umesh V. Mamadapur, Advocate. For the Respondents: R1 to R3, D.P. Ambekar, R4 & R5, Sanganabasava B. Patil, Advocates.



Judgment Text

(Prayer: This Regular First Appeal filed under Section 96 of CPC, against the Judgment and Decree dated 09.02.2016 passed in O.S.No.10/2012 on the file of Prl. Senior Civil Judge, Vijaypur wherein, the suit was decreed.)

Raghvendra S. Chauhan, J.

1. Mr. Vithal, the appellant (defendant No.1) is aggrieved by the judgment and decree dated 09.02.2016, passed by the Principal Senior Civil Judge, Vijaypur, whereby the learned Judge has decreed the suit for partition in favour of the respondent-plaintiff Nos.1 to 3 and has directed the partition and separate possession of their 1/4th share each in the suit properties.

2. Briefly the facts of the case are that the respondent-plaintiff No.1, Shantabai claimed that the appellant-defendant No.1 was her lawfully wedded husband. According to her,

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during their marriage, they were blessed with two sons, namely respondent Nos.2 and 3. Moreover, according to her, her husband, the appellant, had inherited the suit properties, namely Sy. No.530/2 measuring 6 acres 20 guntas and Sy. No.539 measuring 7 acres 20 guntas located in Arakeri village as per the share of his family property, which fell into his share after his family properties were partitioned. Moreover, according to the respondent No.1, during their married life, the appellant had become addicted to bad vices, and started raising loans from the Co- operative banks on the said property. Therefore, in order to protect her own interest, and the interest of the children, she was constrained to file the suit for partition and separate possession of their legitimate 3/4th share in the suit properties.

3. The appellant, as defendant No.1, submitted his written statement and denied the averments made in the plaint. More specifically, he denied any relationship with the respondent No.1. According to him, respondent No.1 was not his wife and respondent Nos.2 and 3 were not his children. According to him respondent No.4, Smt. Swamavva, is his legal wife. He, thus, claimed that the suit should be dismissed.

4. On the basis of the pleadings, the learned Trial Court framed four issues. But before proceeding with the four issues, the learned Trial Court dealt with the issue whether the appellant is the lawfully wedded husband of respondent No.1 or not?

5. In order to buttress her case, the respondent No.1 examined the respondent No.2, Chandrakant, as PW.1, and one Amasidda as PW.2. She further submitted eighteen documents before the learned Trial Court. In turn, the appellant examined himself as DW.1 and Mr. Amoghsidda as DW.2. He also submitted five documents.

6. After assessing the oral and documentary evidence, the learned Trial Court, as mentioned above, decreed the suit in favour of the respondent Nos.1 to 3, the plaintiffs and opined that the respondent Nos.1 to 3 are entitled to partition and separate possession of their 1/4th share each in the suit properties. Hence, this appeal before this Court.

7. Mr. Umesh V. Mamadapur, the learned counsel for the appellant, has vehemently contended that while the learned Trial Court has considered the oral and documentary evidence produced by the respondent Nos.1 to 3, it has ignored the documents submitted by the appellant, namely Exs.D1 to D5. Secondly, the respondent Nos.1 to 3 have failed to establish the fact that respondent No.1 is the lawful wedded wife of the appellant. Therefore, the impugned judgment and decree deserve to be set aside by this Court.

8. On the other hand, the learned counsel for the respondent Nos.1 to 3, Mr. D.P. Ambekar, has pleaded that the learned Trial Court has meticulously examined the oral and documentary evidence produced by the respondent Nos.1 to 3. It has also considered Exs.D1 to D5. After considering Exs.D1 to D5, it has concluded that the said documents are insufficient to establish the fact that the respondent No.1 is not the lawful wedded wife of the appellant, and to further substantiate the case of the appellant that respondent No.4, Smt. Swamavva, is his lawfully wedded wife. Therefore, according to the learned counsel, the learned Trial Court was justified in concluding that, indeed, respondent No.1 happens to be the lawfully wedded wife of the appellant.

9. Secondly, the learned Trial Court has correctly appreciated the fact that the suit property was an ancestral one. Hence, the respondent Nos.1 to 3 were entitled to 1/4th share each in the said suit property. Therefore, the learned counsel has supported the impugned judgment and decree.

10. Heard the learned counsel for the parties, and perused the impugned judgment and decree.

11. Admittedly, the appellant had denied any relationship with respondent No.1. However, in order to establish her case, the respondent No.1 had produced two Syndicate Bank pass books (Ex.P7), one Syndicate Bank pass book (Ex.P8), the Temporary Ration coupon (Ex.P10), Original Marks Card (Ex.P11), Original Election Identity Card (3) (Ex.P12), Original Transfer Certificate of respondent No.3 (Ex.P17) and the Original Transfer Certificate of respondent No.2 (Ex.P18). She had also examined the appellant's nephew, Mr. Amasidda as PW.2. These documents show the appellant as the husband of the respondent No.1 and the father of respondent Nos.2 and 3. Thus, there was sufficient documentary evidence to conclude that the appellant happens to be the husband of respondent No.1, and the father of respondent Nos.2 and 3.

12. Moreover, Mr. Amasidda (PW.2), who happens to be the appellant's nephew, has testified in favour of the respondent No.1. In particular, in his testimony, he has supported the case of respondent No.1 that she is the lawfully wedded wife of the appellant. Since PW.2 happens to be the nephew of the appellant, his natural inclination would be to support the case of his uncle. However, he has supported the case of his aunt, the respondent No.1. Therefore, there is no reason for doubting the trustworthiness of this witness. Hence, even through oral evidence, the respondent No.1 has sufficient corroborative evidence to establish her plea that she is the lawfully wedded wife of the appellant.

13. Although the appellant had submitted the original PAN card (Ex.D-1), original Aadhar card (Ex.D-2), original Election ID card (Ex.D-3), original Election ID Card (Ex.D-4), and the ration card (Ex.D-5), none of these documents rebut the plea raised by the respondent No.1 that she is the lawfully wedded wife of the appellant. Therefore, these documents do not shed any light on the issue whether respondent No.1 is the legally wedded wife of the appellant or not. In fact, it is the case of the respondent No.1 that during the subsistency of her marriage with the appellant, the appellant had entered into a second marriage with Smt. Swamavva, the respondent No.4 before this Court, and within their wedlock, the respondent No.5, Amoghsidda was born. However, since the second marriage was entered into by the appellant during the subsistency of the first marriage, the respondent No.4 cannot be termed as lawfully wedded wife of the appellant. Therefore, the learned Trial Court was justified in not relying upon Exs.D-1 to D-5, and in relying upon oral and documentary evidence produced by the respondent No.1 to substantiate her case that she and her children are related to the appellant.

14. As far as the ancestral nature of the property is concerned, the appellant has not disputed the fact that the suit property belonged to his ancestors, and the suit property fell in his share when his joint family partitioned their property. Therefore, the learned Trial Court was legally justified in concluding that since the respondent Nos.1, 2 and 3 are related, since the respondent Nos.2 and 3 happened to be the son of the appellant, they would have a share in the ancestral property.

15. For the reasons stated above, this Court does not find any illegality or perversity in the impugned judgment and decree. Therefore, the present appeal is devoid of merit; the same is, hereby, dismissed.

16. In view of dismissal of the appeal, I.A.No.1/2016 filed for stay does not survive for consideration; the same is, hereby, dismissed.
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