Karnataka High Court
Smt.Gangavva @ Manjula W/O. ... vs Sri.Somaraddi S/O. Channaraddi ... on 21 May, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF MAY, 2020
:PRESENT:
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
REGULAR FIRST APPEAL No.4123/2012
C/w
REGULAR FIRST APPEAL No.100090/2020
REGULAR FIRST APPEAL No.100091/2020
REGULAR FIRST APPEAL No.100092/2020
RFA No.4123/2012:
BETWEEN:
1. CHANNARADDI @ CHANNAPPA
BASAVARADDI BELKOPPA
AGED ABOUT 65 YEARS
OCC: AGRICULTURE
R/AT KARAMADI, TALUK RON.
2. BASAVRADDI CHANNARADDI BELKOPPA
AGED ABOUT 65 YEARS
OCC: AGRICULTURE
R/AT KARAMADI, TALUK RON.
3. DODDANNA@
RAJU CHANNARADDI BELKOPPA
AGED ABOUT 31 YEARS
OCC: PVT. SERVICE
R/AT KARAMADI, TALUK RON
H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBLI
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
2
4. HANAMANTHRADDI CHANNARADDI BELKOPPA
AGED ABOUT 29 YEARS
OCC: PVT. SERVICE
R/AT KARAMADI, TALUK RON
H.NO.6, ARUN COLONY
MANJUNATH NAGAR,
GOKUL ROAD, HUBLI ...APPELLANTS
(BY SRI C.N.HARLAPUR & SRI P.H.TOTAD, ADVOCATES)
AND:
1. HANMAVVA MALLAPPA GADAGI
AGED ABOUT 76 YEARS
OCC: AGRICULTURE
R/AT DAMBAL
TALUK MUNDARGI
2. SANTAVVA W/O SIDDAPPA GADAGI
SINCE DECEASED BY LRS.
2(a) SIDDAPPA
S/O.BALLAPPA GADAGI
AGED ABOUT 70 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
2(b) SMT.SUMANGALA
W/O. BASAVARAJ PATIL
AGED ABOUT 48 YEARS
OCC: HOUSE HOLD WORK
R/AT ARAHUNASHI
TALUK RON, DISTRICT GADAG
2(c) VENKANNA
S/O. SIDDAPPA GADAGI
AGED ABOUT 46 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
2(d) SMT.AKKAMMA
W/O. YENKANAGOUDA APPANAGOUDAR
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
3
AGED ABOUT 43 YEARS
OCC: AGRICULTURE
R/AT BANNIKOPPE
TALUK YALBURGA
DISTRICT KOPPAL
2(e) HANAMANTH
S/O.SIDDAPPA GADAGI
AGED ABOUT 40 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
2(f) GOVINDARADDI
S/O. SIDDAPPA GADAGI
AGED ABOUT 34 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
3. TIMMAVVA W/O SHIVAPPA SHIROL
SINCE DECEASED BY HER L.RS
3(a) SHARNABASAPPA SHIVAPPA SHIROL
AGED ABOUT 40 YEARS
OCC: DRIVER
R/AT UNKAL CROSS
HUBLI
3(b) HANAMAVVA MALLAPPA SOMARADDI
AGED ABOUT 50 YEARS
OCC: AGRICULTURE
R/AT GANJUR, TALUK HAVERI
3(c) NILAVVA SANGANGOUDA NAGNUR
AGED ABOUT 45 YEARS
OCC: HOUSEHOLD
R/AT PETALUR, TALUK MUNDARGI
3(d) SHANTAVVA BHIMANGOUDA PATIL
AGED ABOUT 38 YEARS
OCC: AGRICULTURE
R/AT BELAVAL KOPPA
TALUK BADAMI
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
4
3(e) RENAVVA ANDANGOUDA PATIL
AGED ABOUT 29 YEARS
OCC: AGRICULTURE
R/AT SUNNAGA, TALUK BILAGI
4. SOMALINGAPPA
S/O CHANNRADDI BELKOPPA
AGED ABOUT 45 YEARS
OCC: AGRICULTURE AND DOCTOR
R/AT KARAMADI ,TALUK RON
PLOT NO.6, R.S.NO.101/A
ARUN COLONY, MANJUNATH NAGAR
NEAR SIDDALINGESHWAR MILL
HUBLI
5. SMT.GANGAVVA @ MANJULA
W/O.NAGANAGOUDA HIREGOUDAR
AGED ABOUT 47 YEARS
OCC: HOUSE HOLD
R/AT BUDIHAL, TALUK BILAGI
DISTRICT BAGALKOTE
6. SMT.MALLAMMA
W/O. PRADEEP MALIPATIL
AGED ABOUT 42 YEARS
OCC: HOUSE HOLD
R/AT KAVALU, DISTRICT KOPPAL ...RESPONDENTS
(BY SRI K.L.PATIL, SRI S.S.BETHURMATH,
SRI H.R.PATIL & SRI S.B.NAIK, ADVOCATES FOR R3(a)-R3(e);
SRI B.V.SOMAPUR, MS.NANDINI SOMAPUR,
SRI C.B.SHAKUNEVALLI, ADVOCATES FOR C/R1 & R4;
SRI S.L.MATTI AND SURESH.S., ADVOCATE FOR R5 AND R6;
R2(a) TO R2(f) SERVED.
THIS R.F.A. FILED UNDER SECTION 96 OF THE CODE OF THE
CIVIL PROCEDURE, 1908 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 06.08.2012 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE, RON IN O.S.NO.31/2009 ETC.
R.F.A.No.100090/2020:
BETWEEN:
1. SMT GANGAVVA @ MANJULA
W/O NAGANAGOUDA HIREGOUDAR
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
5
AGED ABOUT 47 YEARS
OCC: HOUSEHOLD WORK
R/AT BHUDIHAL, TALUK BILAGI
DISTRICT BAGALKOT
2. SMT MALLAMMA
W/O PRADEEP MALIPATIL
AGED ABOUT 42 YEARS
OCC: HOUSEHOLD WORK
R/AT KAVALUR TALUK
DISTRICT KOPPAL ...APPELLANTS
(BY SRI S.L.MATTI, ADVOCATE)
AND:
1. SRI SOMARADDI
S/O CHANNARADDI BELAKOPPA
AGED ABOUT 46 YEARS
OCC: MEDICAL PRACTITIONER
R/AT H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBBALLI
2. SRI CHANNARADDI
S/O BASAVARADDI BELAKOPPA
AGED ABOUT 74 YEARS
OCC: AGRICULTURIST
R/AT KARAMADI
POST: ASUTI, TALUK RON
DISTRICT GADAG
3. SRI BASAVARADDI
S/O CHANNARADDI BELAKOPPA
AGED ABOUT 42 YEARS
OCC: AGRICULTURIST
R/AT KARAMADI, POST:ASUTI
TALUK RON, DISTRICT GADAG
4. SRI SHARANAPPA
S/O CHANNARADDI BELAKOPPA
AGED ABOUT 40 YEARS
OCC: AGRICULTURIST
R/AT KARAMADI, POST: ASUTI
TALUK RON, DISTRICT GADAG
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
6
5. SRI DODNNA @ RAJU
S/O CHANNARADDI BELAKOPPA
AGED ABOUT 40 YEARS
OCC: AGRICULTURIST
R/AT KARAMADI
POST: ASUTI, TALUK RON
DISTRICT GADAG
6. SRI HANAMANTAPPA RADDI
S/O CHANNARADDI BELAKOPPA
AGED ABOUT 31 YEARS
OCC: AGRICULTURIST
R/AT KARAMADI, POST: ASUTI
TALUK RON, DISTRICT GADAG
7. SMT HANAMAVVA
W/O MALLAPPA GADAGI
AGED ABOUT 82 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
8. SMT: SHANTAVVA
SINCE DECEASED BY HER L.Rs
8(a) SRI SIDDAPPA
S/O BALAPPA GADAGI
AGED ABOUT 72 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
8(b) SMT SUMANGALA
W/O BASAVARAJ PATIL
AGED ABOUT 48 YEARS
OCC: HOUSEHOLD WORK
R/AT ARAHUNASI, TALUK RON
DISTRICT GADAG
8(c) SRI VENKANNA
S/O SIDDAPPA GADAGI
AGED ABOUT 46 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
7
8(d) SMT AKKAMMA
W/O YANKANAGOUDA APPANAGOUDAR
AGED ABOUT 45 YEARS
OCC: AGRICULTURIST
R/AT BANNIKOPPA
TALUK YALABURGA
DISTRICT KOPPAL
8(e) SRI HANAMANTA
S/O SIDDAPPA GADAGI
AGED ABOUT 42 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
8(f) SRI GOVINDARADDI
S/O SIDDAPPA GADAGI
AGED ABOUT 36 YEARS
OCC: AGRICULTURIST
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
9. SMT SHANTAVVA
W/O SIDDAPPA GADAGI
SINCE DECEASED BY HER L.Rs
9(a) SRI SHARANABASAPPA
S/O SHIVAPPA SHIROL
AGED ABOUT 41 YEARS
OCC: DRIVER
R/AT UNKAL CROSS
1ST CROSS, HUBBALLI
9(b) SMT HANAMAVVA
W/O MALLAPPA SOMARADDI
AGED ABOUT 51 YEARS
OCC: AGRICULTURIST
R/AT GANJUR TALUK
DISTRICT HAVERI
9(c) SMT NEELAVVA
W/O SANGANGOUDA NAGNOOR
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD WORK
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
8
R/AT PATTALUR VILLAGE
TALUK MUNDARAGI
DISTRICT GADAG
9(d) SMT SHANTAVVA
W/O BHIMANAGOUDA PATIL
AGED ABOUT 39 YEARS
OCC: HOUSEHOLD WORK
R/AT PATTALUR VILLAGE
TALUK MUNDARAGI
DISTRICT GADAG
9(e) SMT RENAVVA
W/O ANDANIGOUDA PATIL
AGED ABOUT 30 YEARS
OCC: AGRICULTURIST
R/AT SUNAG VILLAGE
TALUK BILAGI
DISTRICT BAGALKOT ...RESPONDENTS
(BY SRI. B.V.SOMAPUR, SRI C.B.SHAKUNAVALLI
& SRI V.P.VADAVI, ADVOCATES FOR R1;
SRI C.N.HARLAPUR, ADVOCATE FOR R2 TO R6,
SRI K.L.PATIL, SRI S.S.BETURMATH & SRI S.A.SANDUR,
ADVOCATES FOR R7, R8(a) TO R8(f) & R9(a) TO R9(e)
THIS R.F.A. FILED UNDER SECTION 96 READ WITH ORDER
XLI RULE 1 OF THE CODE OF THE CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.06.2016 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, HUBBALLI IN O.S.NO.55/2009 ETC.
R.F.A.NO.100091/2020:
BETWEEN:
SHRI CHANNARADDI BELKOPPA
S/O BASAVAREDDI
AGED ABOUT 65 YEARS
OCC: AGRICULTURE
R/AT KARAMADI
POST: ASUTI, TALUK RON
DISTRICT GADAG
REP. BY HIS GPA HOLDER
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
9
HANMANTAPPA REDDI
S/O CHANARADDI BELKOPPA
AGED ABOUT 28 YEARS
OCC: AGRICULTURE
R/AT KARAMADI
POST: ASUTI, TALUK RON
DISTRICT GADAG
AND ALSO R/AT
H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBLI ...APPELLANT
(BY SRI C.N.HARLAPUR, ADVOCATE)
AND:
SHRI SOMARADDI
S/O CHANNAREDDI BELKOPPA
AGED ABOUT 38 YEARS
OCC: DOCTOR
R/AT H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBLI ... RESPONDENT
(BY SRI B.V.SOMAPUR, SRI C.B.SHAKUNAVALLI
& SRI V.P.VADAVI, ADVOCATES)
THIS R.F.A. FILED UNDER ORDER XLI RULE 1 READ WITH
SECTION 96 OF THE CODE OF THE CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.06.2016 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE,
HUBBALLI IN O.S.NO.79/2013 ETC.
RFA No.100092/2020:
BETWEEN:
1. CHANNARADDI BELKOPPA
S/O BASAVAREDDI
AGED ABOUT 65 YEARS
OCC: AGRICULTURE
R/AT: KARAMADI, AT POST: ASUTI
TALUK RON, DISTRICT GADAG
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
10
2. SRI BASAVAREDDI
S/O CHANNARADDI BELKOPPA
AGED ABOUT 35 YEARS
OCC: AGRICULTURE
R/AT KARAMADI, AT POST: ASUTI
TALUK RON, DISTRICT GADAG
3. SRI SHARANAPPA
S/O CHANNARADDI BELKOPPA
AGED ABOUT 32 YEARS
OCC: AGRICULTUE
R/AT KARAMADI
AT POST: ASUTI, TALUK RON
DISTRICT GADAG
AND ALSO R/AT H.NO.6
ARUN COLONY, MANJUNATH NAGAR
GOKUL ROAD, HUBBALLI
4. DODNNA @ RAJU
S/O CHANNARADDI BELKOPPA
AGED ABOUT 30 YEARS
OCC: AGRICULTURE
R/AT KARAMADI, AT POST:ASUTI
TALUK RON, DISTRICT GADAG
5. HANMANTAPPA REDDI
S/O CHANARADDI BELKOPPA
AGED ABOUT 28 YEARS
OCC: AGRICULTURE
R/AT KARAMADI, POST: ASUTI
TALUK RON, DISTRICT GADAG
AND ALSO RESIDING AT
H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBLI ...APPELLANTS
(BY SRI C.N.HARLAPUR, ADVOCATE)
AND:
1. SRI SOMARADDI
S/O CHANNAREDDI BELKOPPA
AGED ABOUT 38 YEARS
OCC: DOCTOR
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
11
R/AT H.NO.6, ARUN COLONY
MANJUNATH NAGAR
GOKUL ROAD, HUBLI
2. SMT HANUMAVVA MALLAPPA GADAGI
AGED ABOUT 76 YEARS
OCC: AGRICULTURE
R/AT DAMBAL
TALUK MUNDARGI
3. SMT SHANTAVVA
W/O SIDDAPPA GADAGI
SINCE DECEASED BY HER LEGAL HEIRS
3(a) SIDDAPPA
S/O BALLAPPA GADAGI
AGED ABOUT 70 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
3(b) SMT SUMANGALA
W/O BASAVARAJ PATIL
AGED ABOUT 48 YEARS
OCC: HOUSEHOLD WORK
R/AT ARAHUNASHI
TALUK RON, DISTRICT GADAG
3(c) VENKANNA
S/O SIDDAPPA GADAGI
AGED ABOUT 46 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
3(d) SMT AKKAMMA
W/O YANKANAGOUDA APPANAGOUDAR
AGED ABOUT 43 YEARS
OCC: AGRICULTURE
R/AT BANNIKOPPA, TALUK YALBURGA
DISTRICT KOPPAL
3(e) HANAMANT
S/O SIDDAPPA GADAGI
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
12
AGED ABOUT 40 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
3(f) GOVINDARADDI
S/O SIDDAPPA GADAGI
AGED ABOUT 34 YEARS
OCC: AGRICULTURE
R/AT DAMBAL, TALUK MUNDARGI
DISTRICT GADAG
4. SMT. TIMMAVVA W/O SIDDAPPA GADAGI
SINCE DECEASED BY HER LEGAL HEIRS
4(a) SHARANBASAPPA SHIVAPPA SIROL
AGED ABOUT 40 YEARS
OCC: DRIVER
R/AT UNKAL CROSS
1ST CROSS, HUBLI
4(b) HANUMAVVA MALLAPPA SOMREDDI
AGED ABOUT 50 YEARS
OCC: AGRICULTURIST
R/AT GANJUR, TALUK HAVERI
4(c) NILAVVA SANGANGOWDA NAGNOOR
AGED ABOUT 45 YEARS
OCC: HOUSEHOLD
R/AT PATTALUR VILLAGE
TALUK MUNDARGI
4(d) SHANTAVVA BHIMANGOWDA PATIL
AGED ABOUT 38 YEARS
OCC: HOUSEHOLD
R/AT PATTALUR VILLAGE
TALUK MUNDARGI
4(e) RENAVVA ANDHINGOWDA PATIL
AGED ABOUT 29 YEARS
OCC: AGRICULTURIST
R/AT SUNAG VILLAGE
TALUK BILGI, DISTRICT BAGALKOT
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
13
5. GANGAVVA @ MANJULA
W/O.NAGANGOWDA HIREGOWDER
AGED ABOUT 46 YEARS
OCC: HOUSEHOLD
R/AT BHUDIHAL
TALUK BILGI
DISTRICT BAGALKOT
6. SMT. MALLAMMA
W/O PRADEEP MALIPATIL
AGED ABOUT 41 YEARS
OCC: HOUSEHOLD
R/AT KAVALUR, DISTRICT KOPPAL. ...RESPONDENTS
(BY SRI B.V.SOMAPUR, SRI C.B.SHAKUNEVALLI
AND SRI VADAVI, ADVOCATES FOR R1;
SRI K.L.PATIL, SRI S.S.BETURMATH & SRI S.A.SANDUR,
ADVOCATES FOR R2, R3(a) TO R3(f) & R4(a) TO R4(e);
SRI S.L.MATTI, ADVOCATE FOR R5 & R6)
THIS R.F.A. FILED UNDER ORDER XLI RULE 1 READ WITH
SECTION 96 OF THE CODE OF THE CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.06.2016 PASSED BY PRINCIPAL SENIOR CIVIL JUDGE,
HUBBALLI, IN O.S.NO.55/2009 ETC.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, K.S.MUDAGAL J., THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
JUDGMENT
Since these appeals involve common questions of law and facts, they are taken up together for disposal by this common judgment.
2. R.F.A.No.4123/2012 is appeal of defendant Nos.1, 2, 4 and 5 against the judgment and decree dated 06.08.2012 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 14 in O.S.No.31/2009 passed by the Senior Civil Judge, Ron. By the impugned judgment and decree, the trial Court partly decreed the suit of the plaintiffs for partition granting them 1/4th share in item Nos.1 to 5, 11 and 12 of the suit properties. The trial Court further held that item Nos.3 and 10 are absolute properties of defendant No.3 by virtue of Wills dated 25.08.1974 and 05.01.1998 respectively.
3. R.F.A.No.100090/2020 is the appeal of defendant Nos.9 and 10 and R.F.A.No.100092/2020 is the appeal of defendant Nos.1 to 5 in O.S.No.55/2009 against common judgment and decree dated 20.06.2016 passed by the Principal Senior Civil Judge & J.M.F.C., Hubballi in O.S.No.55/2009 and O.S.No.79/2013. By the impugned judgment and decree in O.S.No.55/2009 the trial Court granted declaration of title of plaintiff to the suit property under Will dated 05.01.1998 and permanent injunction.
4. R.F.A.No.100091/2020 is the appeal of the plaintiff in O.S.No.79/2013. By the common judgment and decree in O.S.No.55/2009 and O.S.No.79/2013, the Principal Senior R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 15 Civil Judge & J.M.F.C., Hubballi has dismissed the plaintiff's suit in O.S.No.79/2013 for permanent injunction.
5. O.S.No.31/2009 is comprehensive suit from the point of view of properties. But in O.S.No.55/2009 all the parties in these appeals were parties.
6. Defendant Nos.9 and 10 of O.S.No.55/2009 have filed I.A.No.1/2015 to implead them in R.F.A.No.4123/2012 which arises out of O.S.No.31/2009.
7. The subject matter of O.S.No.31/2009 are as follows:
SUIT SCHEDULE PROPERTIES:
A.No. Grama R.S.No. Acres Extent
1 Karamadi 51 16-25 29-94
2 Karamadi 57 13-34 21-61
3 Karamadi 102 17-26 27-04
4 Karamadi 239/1 3-38 7-69
5 Asuti 269/2 5-04 9-49
6 Karamadi 112 18-31 20-29
7 Asuti 257 4-17 8-51
8 Asuti 496/1 1-19 -
9 Asuti 269/1 5-14 9-96
10 Hubli Taluk 101/A 0-02.3.25 -
Krishnapur
Plot No.6 and
the residential
house
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
16
11. House bearing VPC No.135 and 136 of Karamadi village within the limits of Asuti Panchayath.
12. Backyard bearing VPC No.542 of Karamadi village situated within Asuti Gram panchayath village limits.
13. The tractor and trailer bearing No.MEY 2657/58 standing in the name of Ningaraddi.
14. Household articles including utensils, almirahs and fridge in the house of Ningaraddi.
8. Item No.10 of the above properties namely, the Plot No.6 of Krishnapur village of Hubballi Taluk is the subject matter of O.S.No.55/2009 and O.S.No.79/2013.
9. The family pedigree relevant for the purpose of these cases is as follows:
Basavareddi Yallamma (wife) Hanumavva Thimavva Ningaraddi Channaraddi Shantavva 1st daughter 2nd daughter 1st Son 2nd Son 3rd daughter Gangavva Akkamma Somalingappa Mallamma Basavaraddi Sharanappa Doddanna Hanamantharaddi @ Manjula @ Raju R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 17
10. Akkamma has not made any claim in these suits and not a party to the suits.
11. Since the above named persons have different rankings in different suits, for the purpose of clarity and convenience, in these appeals the parties will be referred to henceforth with their names.
12. Some of the admitted facts are as follows:
Hanumavva, Shanthavva, Thimmavva the plaintiffs in O.S.No.31/2009, Channaraddi @ Channappa (Defendant No.1) in O.S.No.31/2009 and one Ningaraddi were the children of Basavaraddi and Yellamma. Basavaraddi, Somaraddi, Doddanna, Hanamantharaddi (defendant Nos.2 to 5 in O.S.No.31/2009) are the sons and Gangavva @ Manjula and Mallamma (Defendant Nos.9 and 10 in O.S.No.55/2009) are the daughters of Channaraddi. During the life time of Basavaraddi, there was partition between him and his sons Channaraddi and Ningaraddi in the year 1954. Basavaraddi died in the year 1971. Ningaraddi died on 12.02.2002. His wife Lakshmavva died on 29.04.2002. Both of them had no issues.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 18
13. On 06.10.2009 Hanumavva, Shanthavva and Thimmavva filed O.S.No.31/2009 against Channaraddi and his four sons before the Senior Civil Judge Court, Ron claiming that in the partition between Basavaraddi, Ningaraddi and Channaraddi suit schedule item Nos.1 to 4 properties were allotted to Ningaraddi and after the death of Basavaraddi item Nos.5 to 9, 11 and 12 were allotted to the share of Ningaraddi. They further contended that out of his income from medical practice and savings, Ningaraddi acquired item No.10 the residential house at Hubballi and item Nos.13 and 14 movable properties. They claimed that till the death of Ningaraddi, all the suit properties were in his possession and enjoyment. On the death of Ningaraddi and his wife, themselves and Channaraddi as Class-II heirs were entitled to equal 1/4th share. They further claimed that to gulp their shares Channaraddi in collusion with his sons has got up false gift deeds in favour of his sons Doddanna and Hanamantharaddi in respect of item Nos.1, 2, 4, 7, & 9 properties and revenue entries in favour of Basavaraddi and Somaraddi in respect of other properties and those documents R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 19 do not bind the plaintiffs. Therefore, they sought decree for partition and separate possession of 3/4th share.
14. Before that on 11.03.2009, Somaraddi S/o. Channaraddi filed O.S.No.55/2009 against Channaraddi and his other sons and the paternal aunts Hanumavva, Shantavva and Thimmavva for declaration of his title to the house property of Hubballi which was item No.10 in O.S.No.31/2009 and for permanent injunction.
15. In that suit, he claimed that his uncle Ningaraddi was the absolute owner of the said property. He further claimed that Ningaraddi out of his love and affection fostered him and helped him in studying medicine and thereafter, he was residing with Ningaraddi couple in the suit property and helping him in his medical practice. He further claimed that out of his love and affection, Ningaraddi executed a Will dated 05.01.1998, thereby he has become absolute owner of the said property. He contended that his father and his brothers are obstructing his peaceful possession and enjoyment of the suit property and thus he sought declaration of his title and permanent injunction.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 20
16. In O.S.No.55/2009 Gangavva @ Manjula and Mallamma subsequently, got themselves impleaded as defendant Nos.9 and 10 claiming that Ningaraddi has executed Will in their favour on 01.01.2001 bequeathing the suit property and the other properties.
17. Pending the above suits, on 10.03.2010 Channaraddi filed O.S.No.223/2010 against his son Somaraddi before the Principal Civil Judge (Junior Division), Hubballi for permanent injunction in respect of the house property situated at Hubballi which was suit item No.10 in O.S.No.31/2009 and the sole subject matter in O.S.No.55/2009. That matter was assigned to IV Additional Civil Judge (Junior Division), Hubballi. In O.S.No.223/2010 Channaraddi sought permanent injunction against Somaraddi contending that Ningaraddi died intestate. He further claimed that himself and his children were residing in the said house with Ningaraddi and he is entitled to the property as Class-II heir. He further contended that creating a Will Somaraddi is obstructing his possession.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 21
18. Somaraddi filed Misc.Petition No.3/2013 before the Principal District Judge, Dharwad seeking transfer of O.S.No.223/2010 to the Court of the Principal Senior Civil Judge, Dharwad for hearing along with O.S.No.55/2009 on the ground that they were connected matters. The learned Principal District Judge, Dharwad vide order dated 17.01.2013 allowed Misc.Petition No.3/2013 and transferred O.S.No.223/2010 as prayed for.
19. On such transfer, O.S.No.223/2010 was renumbered as O.S.No.79/2013 on the file of Principal Senior Civil Judge & J.M.F.C., Hubballi. Learned Principal Senior Civil Judge & J.M.F.C, Hubballi consolidated O.S.No.79/2013 with O.S.No.55/2009, recorded common evidence in O.S.No.55/2009 and disposed of the said suits by common judgment.
20. In O.S.No.31/2009, the defence of Channaraddi was as follows:
Plaintiffs' case and their claim was denied. The suit was bad for non inclusion of land bearing Survey No.205 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 22 measuring 7 acres and 11 guntas of Karamadi village and non-joinder of Rohan son of Somaraddi (defendant No.3) as the said property stands in his name. Partition of the year 1954 was admitted. But only item Nos.11 and 12 were allotted to the share of Ningaraddi in that partition. Item No.5 is in his possession as absolute owner thereof. The allotment of item Nos.1 to 4 to the share of Ningaraddi in that partition was denied. The acquisition of suit item No.10 by Ningaraddi out of his own income was denied. Ningaraddi acquired that property availing huge loan from him, but did not repay the same. Therefore, Ningaraddi permitted him to occupy the said house since 31.01.1998 due to non-payment of loan. Since then he is in possession of the said property as absolute owner thereof. Thereby he has perfected his title to the said property by adverse possession. Other suit immovable properties situated were allotted to his share. Ningaraddi's ownership over tractor and other movable properties was denied. Defendant No.2 Basavaraddi is the absolute owner of item No.3 and in possession of the same since 1984. Thereby, Basavaraddi has perfected his title to the said properties by R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 23 adverse possession. In 1971, there was family arrangement in which item No.6 has fallen to his share and he is in possession of the same since 14.07.1971 as absolute owner, thereby perfected his title to the said property by adverse possession. His sons Doddanna and Hanamantharaddi are the absolute owners of item nos.1, 2, 4, 7 and 9.
21. Defence of Somaraddi (defendant No.3) in O.S.No.31/2009:
In the partition of the year 1954, suit item Nos.1 to 4 were allotted to Ningaraddi and item Nos.7 to 9 were allotted to Channaraddi. Suit item No.10 was Ningaraddi's absolute property. Ningaraddi educated and fostered him. Therefore, he acquired Bachelor of Medical Science degree and was assisting Ningaraddi in his medical practice. Ningaraddi out of his love and affection towards him bequeathed suit schedule item No.10 in his favour under the Will dated 05.01.1998. R.S.No.112 measuring 18 acres 31 guntas (item No.6) was the ancestral property. In the partition the said property was allotted to Basavaraddi's share. Since Basavaraddi's elder sister Adivavva objected the said partition for not allotting any R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 24 share to her, Basavaraddi gave that property to her as her share. Accordingly, Mutation Entry 1909 was effected. Channaraddi and Ningaraddi gave joint report to the revenue authorities confirming the same and that Adivavva was absolute owner of Survey Nos.112 and 145. She bequeathed those properties in his favour under the Will dated 25.08.1974. After her death on 11.02.1976, he was enjoying those properties as absolute owner. Thereafter Mutation Entry No.1966 was effected in his favour. Since his father and brothers obstructed his peaceful possession of item No.10 property, he filed O.S.No.55/2009 against them before the Senior Civil Judge Court, Hubballi. Except item Nos.6 & 10, plaintiffs are entitled to share in other properties. Therefore, he sought dismissal of the suit in respect of item Nos.6 and
10.
22. Defence of Hanamantharaddi (Defendant No.5) in O.S.No.31/2009 was in tune with the defence of his father Channaraddi. He claimed that himself and Doddanna (defendant No.4) are the absolute owners of item Nos.1, 2, 4, 7 to 9 properties.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 25
23. Basavaraddi (Defendant No.2) adopted the written statement of Channaraddi and Doddanna (defendant No.4) adopted the written statement of Hanamantharaddi (defendant No.5).
24. The rival pleadings of the parties in the aforesaid cases were one and the same. In O.S.No.55/2009, Gangavva and Mallamma (defendant Nos.9 and 10) apart from denying the Will dated 05.01.1998 set up by Somaraddi, contended that Ningaraddi executed a Will in their favour on 01.01.2001 bequeathing the suit house and his landed properties situated at Karamadi village.
25. On the basis of the pleading of the parties in the above three suits, the trial Court framed the following issues:
Issues in O.S.No.31/2009:
1. Whether the plaintiffs prove that, after the death of Ningaraddi the plaintiffs and defendants jointly succeeded the suit properties and became joint owners of the suit properties?
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 26
2. Whether the defendant - 3 proves that the suit land bearing Sy.No.112 measuring 18 acres 31 guntas was absolute property of sister of propositus by name Adivevva, who bequeathed the same to defendant - 3 by executing registered Will deed dated 25.08.1974?
3. Whether the defendant - 2 proves that suit item No.10 i.e. plot No.6 in suit land Sy.No.101/A situated at Hubli was bequeathed by Ningaraddi in favour of defendant - 3 through a registered Will deed dated 5.1.1998 and thereby after the death of Ningaraddi the defendant - 3 became the owner in possession of the same?
4. Whether the plaintiffs are entitled for share in the suit properties by way of partition and separate possession?
5. What order or decree?
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 27 Additional Issues:
1. Whether the plaintiffs prove that, the genealogical pedigree as pleaded in the plaint para-2 is true and correct?
2. Whether the defendant-5 proves that, himself and his elder brother defendent-4 are the absolute owners in possession of the suit properties at Sl.Nos.1, 2, 4 and 7 to 9?
Issues in O.S.No.55/2009:
1) Whether the plaintiff proves that late Ningaraddi has executed a Will in his favour on 5.1.1998 bequeathing the suit property and as such he became the absolute owner?
2) Whether the defendant No.1 proves that himself and his sisters are the legal heirs of deceased Ningaraddi?
3) Whether plaintiff is entitled for the reliefs claimed in the suit?
4) What Order or decree?
R.F.A.No.4123/2012 C/w
R.F.A.No.100090/2020
R.F.A.No.100091/2020
R.F.A.No.100092/2020
28
Additional Issues:
1) Do the plaintiff proves his possession over the suit property?
2) Do the plaintiff proves the alleged interference of defendants?
3) Do the defendants No.9 and 10 prove that Ningaraddi has executed the 'Will' dated 01-01-2001 in their favour in respect of the suit property?
4) Do the court fee paid by the plaintiff is correct? Issues in O.S.No.79/2013:
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of filing of this suit?
2. Whether the plaintiff proves the alleged obstructions and interference of the defendant over the suit property?
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
4. What decree or order?
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 29
26. Pending the proceedings Shantavva and Thimmavva sisters of Channaraddi died and their legal representatives were brought on record in the concerned cases. In O.S.No.31/2009, on behalf of the plaintiffs, PW.1 and PW.2 were examined and Exs.P1 to P24 were marked. Somaraddi was examined as DW.1 and on his behalf, DW.2 to DW.4 were examined. Channaraddi was examined as DW.5.
27. In O.S.No.55/2009 connected with O.S.No.79/2013, Somaraddi got himself examined as PW.1 and attestors to the Will as PW.2 and PW.3. On his behalf, Ex.P1 to Ex.P21 were marked. Channaraddi did not lead any oral evidence, but on his behalf, Ex.D1 to Ex.D11 were marked confronting them to PW.1 during his cross- examination. The other defendants in O.S.No.55/2009 did not lead any evidence.
28. The trial Court partly decreed the suit in O.S.No.31/2009 as aforesaid on the following reasons:
(i) Oral evidence of Channaraddi/DW.5 and Exs.P5, P13, P16 and P20 show that Survey Nos.205, 112 and 145 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 30 were the properties of Adivavva and she bequeathed them in favour of Somaraddi.
(ii) The plea of adverse possession set up by Channaraddi and the sons who sailed with him was not proved.
(iii) Channaraddi failed to prove that he funded purchase of item No.10 Hubballi property and he was in possession of the said property, much less exclusive possession.
(iv) Ex.P15, Ex.P17 and Ex.P18 the mutation entries show that there was partition between Basavaraddi, Ningaraddi and Channaraddi in December 1954 and in that partition item Nos.1 to 4 were allotted to Ningaraddi. On the death of Basavaraddi, item No.5 allotted to his share devolves on his children.
(v) Somaraddi has proved that Ningaraddi bequeathed item No.10 property in his favour under Will dated 05.01.1998.
29. In O.S.No.55/2009 and O.S.No.79/2013, the trial Court decreed the suit of Somaraddi (O.S.No.55/2009) for R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 31 declaration of title and permanent injunction on the ground that:
(i) He has proved the Will. In O.S.No.31/2009 the said Will and his possession was already held proved.
Therefore, he was entitled to permanent injunction.
(ii) Despite granting sufficient opportunity Gangavva and Mallamma failed to produce the Will dated 01.01.2001 set up by them and prove the same. Therefore, O.S.No.55/2009 was decreed and O.S.No.79/2013 was dismissed.
30. When the above suits were pending before the respective Courts, Gangavva @ Manjula and Mallamma the daughters of Channaraddi filed P & SC No.4/2010 before the I Additional District & Sessions Judge, Dharwad sitting at Hubballi seeking probate of the Will dated 01.01.2001 allegedly executed by Ningaraddi in their favour. In that petition, they did not implead the sisters of Ningaraddi, Somaraddi, their father Channaraddi and his other sons. The I Additional District Judge vide order dated 24.04.2013 allowed the said petition.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 32
31. Somaraddi filed Civil Misc.Petition No.53/2013 and Hanumavva and Shantavva sisters of Ningaraddi filed Civil Misc.Petition No.61/2013 before the V Additional District and Sessions Judge, Dharwad sitting at Hubballi seeking revocation of the probate granted in P & SC No.4/2010 on the ground of suppression of material facts namely, pendency of O.S.No.31/2009, O.S.No.55/2009 etc and fraud. The V Additional District Judge allowed Civil Misc.Petition No.53/2013 on 10.11.2016 and Civil Misc.Petition No.61/2013 on 08.09.2016 reserving liberty to the respondents therein to establish their right in O.S.No.31/2009 or in any pending appeal or by filing separate appeal challenging the judgment and decree in O.S.No.31/2009.
32. Accordingly, they filed I.A.No.1/2015 in R.F.A.No.4123/2012 seeking to implead themselves as respondent Nos.5 and 6 on the ground that they were not aware of the pendency of O.S.No.31/2009 and they are necessary parties to the appeal. The said application was opposed by the respondents therein.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 33
33. Sri C.N.Harlapur, learned Counsel representing Channaraddi, Basavaraddi, Doddanna @ Raju, Hanamantharaddi and Sri S.L.Matti, learned Counsel representing Gangavva @ Manjula and Mallamma in all these appeals reiterating the grounds of appeals seek to assail the impugned judgments in O.S.No.31/2009, O.S.No.55/2009 and O.S.No.79/2013 on the following grounds:
(i) The appreciation of the pleadings and evidence by the trial Courts is contrary to the law and facts.
(ii) The trial Court did not show the legal representatives of the deceased plaintiff No.3 in O.S.No.31/2009 in its judgment. Therefore, the judgment is vitiated.
(iii) Sufficient and proper opportunity was not given to the appellants herein to cross-examine the witnesses of the adversaries and to lead their evidence and to submit their arguments.
(iv) Despite the pendency of transfer petition in C.P.No.543/2012 and W.P.No.65864/2012 against an interim order, the trial Court proceeded to dispose of O.S.No.31/2009 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 34 which shows that the judge was biased against the appellants herein.
(v) Somaraddi was having conflicting interest with his co-defendants in O.S.No.31/2009. The trial Court committed error in holding that plaintiffs therein admitted the Wills set up by Somaraddi.
(vi) The trial Court failed to consider the maintainability of the suits on the ground of non-inclusion of Survey No.205 and non joinder of Rohan as party to O.S.No.31/2009.
(vii) The trial Court was in error in admitting the Will through DW.1 in O.S.No.31/2009.
(viii) The trial Court did not appreciate the suspicious circumstances surrounding the Will of Ningaraddi. The findings of the trial Court on the said Will is unsustainable.
(ix) The trial Court ignored that Somaraddi (DW.1 in O.S.No.31/2009) while deposing had made certain notings on his palm.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 35
(x) The trial Court unjustly rejected the applications of the appellants to recall the witnesses for cross-examination, to produce documents, to lead their evidence and to address their arguments.
(xi) The comparison of the signatures of Ningaraddi on the certified copy of the Will is contrary to Section 73 of the Indian Evidence Act, 1872.
(xii) The trial Court though rejected the production of the documents by the appellants herein, compares the writing on those documents to form the opinion regarding the signature of Ningaraddi.
(xiii) Despite the High Court's direction in W.P.No.64826/2012, original Will was not summoned.
(xiv) The trial Court ought to have seen that O.S.No.55/2009 was barred by principle of res-judicata and sub-judice.
(xv) The finding of the trial Court in O.S.No.55/2009 on Court fee issue is erroneous.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 36 (xvi) In O.S.No.55/2009, the trial Court did not consider the documents of the defendants which was marked by confrontation.
(xvii) Having regard to the order in Civil Misc. Petition Nos.53/2013 and 61/2013, I.A.No.1/2015 for impleading requires to be allowed.
(xviii) The matters require to be remanded to give further opportunity to the parties.
34. In support of his arguments, Sri C.N.Harlapur, learned Counsel relies upon the following judgments:
(i) Shashidhar v. Ashwini Uma Matad1
(ii) H.Lakshmaiah Reddy & Ors. v. L.Venkatesh
Reddy 2
(iii) Apoline D'Souza v. John D'Souza3
(iv) Garre Malikharjuna Rao (D) by Lrs. v.Nalabothu
Punnaiah4
35. Sri K.L.Patil, learned Counsel representing the legal representatives of Thimmavva, Sri B.V.Somapur, learned 1 (2015) 11 SCC 269 2 2015 SAR (Civil) 611 3 AIR 2007 SC 2219 4 2013 SAR (Civil) 431 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 37 Counsel representing Somaraddi seek to justify the impugned judgments and decrees on the following grounds:
(i) Ex.P15 the undisputed mutation entry pursuant to the partition dated 21.12.1954 showed that item Nos.1 to 4 lands had fallen to the share of Ningaraddi. Channaraddi himself admitted that in his evidence.
(ii) Ex.P13 Mutation Entry No.244 dated 22.08.1927 showed that under the family arrangement dated 1926 father and uncle of Adivavva gave Survey No.205 for her maintenance during her lifetime. Thus, that became her absolute property.
(iii) Ex.P12 Mutation Entry No.1909 dated 13.08.1974 proved that Ningaraddi and Channaraddi themselves got mutated the name of Adivavva to Survey Nos.112 and 145 reporting that the said properties have fallen to her share, they were in her possession and by mistake their names were entered to the said properties.
(iv) Ex.P16 Mutation Entry No.1884 dated 22.08.1973 showed that Ningaraddi and Channaraddi by consent got the name of Adivavva entered into those records.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 38
(v) Under Ex.P20 Mutation Entry No.1966 dated 28.04.1977 Channaraddi himself as the minor guardian of Somaraddi aged six years gave application to revenue department and got entered the name of Somaraddi on the basis of Will of Adivavva dated 25.08.1974 regarding Survey Nos.205, 112 and 145 which he admits in his cross-examination unequivocally.
(vi) In the light of such admissions of Channaraddi in his depositions and the documents the contentions regarding non-inclusion of Survey No.205 and non-joinder of Rohan were rightly rejected by the trial Court. So also there is no merit in the challenge to the decree with regard to item Nos.1 to 5 properties.
(vii) Though, Channaraddi and his other sons contended that Channaraddi funded loan for acquiring item No.10 property, he did not produce any iota of evidence to prove that. His contention with regard to the title to that property by adverse possession was equally ridiculous as he pleaded that Ningaraddi permitted him to stay in that house.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 39
(viii) Channaraddi and his other sons failed to prove their possession of item No.10 property.
(ix) Somaraddi proved the Will dated 05.01.1998 by examining the attesting witnesses and nothing was elicited in the cross-examination to impeach their evidence.
(x) Channaraddi his other sons and the contesting daughters themselves were guilty of undue procrastination of the proceedings. Despite granting sufficient opportunity, they did not cross-examine the witnesses promptly and lead their own evidence. They violated their own undertaking before this Court in W.P.No.64827/2012 connected with W.P.No.64826/2012 (GM-CPC) DD 20.07.2012. The trial Court disposed of O.S.No.31/2009 in accordance with the time schedule set in the order of the said writ petitions.
(xi) The original Will was produced in O.S.No.31/2009 and marked as Ex.D1. Then that was taken back substituting the certified copy of the same for the purpose of producing the same in O.S.No.55/2009 and that was very much available in the records of O.S.No.55/2009. Therefore, there is no merit in R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 40 the contention with regard to the trial Court disposing of O.S.No.31/2009 on the basis of the certified copy of the Will.
(xii) Apparently, Channaraddi set up his daughters Gangavva and Mallamma to impede and defeat the proceedings in O.S.No.31/2009. The Will set up by them is also engineered by Channaraddi in collusion with them. Further, they did not choose to produce and prove the same in O.S.No.55/2009 and have already suffered a finding in that regard in the said suit. Therefore, I.A.No.1/2015 is bereft of any merits and liable to be dismissed.
36. It is material to note that though in O.S.No.31/2009, partition and separate possession of shares were sought in item Nos.1 to 12 properties, the trial Court decreed the suit only with regard to item Nos.1 to 5, 11 and 12 properties. The trial Court further held that item No.6 was the property of Adivavva and item No.10 was the property of Ningaraddi and they bequeathed those properties in favour of Somaraddi. Channaraddi and his other sons themselves admitted in their pleadings that item Nos.11 and 12 were the absolute properties of Ningaraddi. Plaintiffs in O.S.No.31/2009 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 41 have not preferred any appeal against the rejection of their claim in respect of item Nos.7 to 9, 13 and 14. Therefore, the dispute in these appeals is confined to item Nos.1 to 5, 6 and
10.
37. Considering the said circumstance, rival contentions and the materials on record, the points that arise for the determination of the Court in these appeals are:
(i) Whether the trial Court in O.S.No.31/2009 was justified in holding that the plaintiffs were entitled to share in plaint schedule item Nos.1 to 5 properties?
(ii) Whether the trial Court was justified in holding that Somaraddi was the absolute owner of plaint schedule item No.6 property?
(iii) Whether in O.S.No.31/2009 the trial Court was justified in holding that the suit was maintainable without including Survey No.205 and impleading Rohan as a party?
(iv) Whether the trial Court in O.S.No.31/2009 was justified in holding that Somaraddi was the absolute owner of plaint schedule item No.10 property?
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 42
(v) Whether the trial Court was justified in holding that defendant Nos.9 and 10 in O.S.No.55/2009 failed to prove the Will dated 01.01.2001 set up by them?
(vi) Whether I.A.No.1/2015 filed by Smt.Gangavva and Smt.Mallamma to implead them in R.F.A.No.4123/2012 deserves to be allowed?
(vii) Whether the Court fee paid in O.S.No.55/2009 was insufficient?
(viii) Whether the impugned judgment and decree of the trial Court in O.S.No.31/2009 is sustainable in law?
(ix) Whether the impugned common judgment and decree of the trial Court in O.S.No.55/2009 and O.S.No.79/2013 is sustainable in law?
Reg. Item Nos.1 to 5 properties in O.S.No.31/2009:
38. Since the full description of these properties is already given in the schedule supra it is not required to mention them again here. Shantavva, Hanumavva, Thimmavva contended that in a partition between their father Basavaraddi, Channaraddi and Ningaraddi in the year 1954, item Nos.1 to 4 properties were allotted to the share of R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 43 Ningaraddi and item No.5 was in his possession and enjoyment. They further claimed that since Ningaraddi and his wife died issueless, themselves and Channaraddi being Class-II heirs are entitled to equal share in those properties.
39. Whereas Channaraddi, Basavaraddi, Doddanna Hanamantharaddi (defendant Nos.1, 2, 4 and 5) denied the allotment of those properties to the share of Ningaraddi and they claimed that item Nos.1, 2, 4, 7 to 9 were the absolute properties of Doddanna and Hanamantharaddi and they have perfected their title to the said properties by adverse possession. Channaraddi claimed that he was the absolute owner of item Nos.1, 5 and 6 properties.
40. Under such circumstances, burden of proving the fact that the aforesaid properties were allotted to the share of Ningaraddi in the partition between himself, Channaraddi and their father in 1954 and he was the owner of those properties was on the plaintiffs therein. To prove that fact, the plaintiffs relied on the evidence of PW.1 and PW.2, DW.1 (Somaraddi), Ex.P15, Ex.P17, Ex.P18, Ex.P19 and the admissions of DW.5/Channaraddi himself.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 44
41. In the cross-examination of PW.1, PW.2 and DW.1 it was not disputed that family of propositus Basavaraddi owned huge properties and there was family partition between Basavaraddi and his sons Ningaraddi and Channaraddi in the year 1954. Then the only question was in that partition whether item Nos.1 to 5 had fallen to the share of Ningaraddi.
42. Ex.P15 the certified copy of the Mutation Entry No.1084 dated 28.04.1955 reveals that Basavaraddi, his sons Ningaraddi and Channaraddi who were then minors represented by their guardian Adivavva, gave requisition to the revenue authorities reporting that they have effected oral partition and their names shall be entered in the revenue records in respect of the properties allotted to their shares as per the said partition.
43. On the basis of such report, the names of Basavaraddi, Ningaraddi and Channaraddi were entered to the following properties as their shares:
Basavaraddi:
1. RS No.112 measuring 18 acres 31 guntas
2. RS No.145 measuring 9 acres 29 guntas R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 45
3. 5 acres of lands of Asuti Village
4. Entire property of Belakoppa village Ningaraddi
1. Survey No.51 measuring 16 acres 25 guntas
2. Survey No.57 measuring 13 acres 34 guntas
3. Survey No.102 measuring 17 acres 13 guntas
4. Survey No.239/1 measuring 3 acres 38 guntas.
Channaraddi
1. Survey No.46 measuring 24 acres 15 guntas
2. Survey No.179/4 measuring 9 acres 3 guntas 3. Survey No.238/1 & 2A measuring 3 acres 24 guntas
4. Western portion of 11 acres of land situated in Asuti
44. The properties shown towards the share of Ningaraddi in Ex.P15 are none else but item Nos.1 to 4 properties. On the basis of such mutation entries, the names of the aforesaid parties were shown in the records of rights of respective lands since 28.04.1955 till the death of Ningaraddi. DW.5 Channaraddi in his cross-examination unequivocally admitted the aforesaid partition and mutation of their R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 46 respective names in the revenue records of the properties accordingly.
45. Channaraddi/DW.5 also admitted that as per Ex.P15, Survey No.269 of Asuti Village was divided between himself and his father in the said partition and as per Ex.P18 Mutation Entry No.2727 on sub-division land allotted his father's share was assigned as Survey No.269/2 and his share was assigned as Survey No.269/1 respectively.
46. DW.5 also admitted that as per Ex.P19 Mutation Entry No.4968 dated 11.09.1971 on the death of his father, the names of himself and Ningaraddi were entered to the land allotted to their father in Survey No.269/2. He gives clean cut admission to the effect that as per Mutation Entry No.1084, name of Ningaraddi was mutated to Survey Nos.51, 57, 102 and 239/1 and till the death of Ningaraddi, RS Nos.51, 57, 102, 239/1 were standing in the name of Ningaraddi and Survey No.269/2 was standing in the names of Ningaraddi and Channaraddi. He further admits that after the death of Ningaraddi, in the year 2005-2006 he got his name entered R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 47 under MR No.37 to the properties fallen to the share of Ningaraddi.
47. Though DW.5 (Channaraddi) further volunteered that before the death of Ningaraddi only, his name was entered and claimed that Ningaraddi conveyed those properties to him under a paper, he does not produce any such paper. Such admissions of Channaraddi coupled with the documents Ex.P15, Ex.P17 clearly showed that item Nos.1 to 4 properties were allotted to the share of Ningaraddi.
48. When propositus Basavaraddi acquired item No.5 property under the partition as per Ex.P15 that became his absolute property and Section 8 of the Hindu Succession Act, 1956 applies. On his death his sons and daughters were entitled to equal share in that. In such event, any relinquishment of their shares by the daughters in that property must have been by a registered document. Though Channaraddi contended that after demise of Basavaraddi, under Ex.P19 the daughters relinquished their share in the said property in his favour, despite the daughters disputing R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 48 that nothing was produced in proof of such relinquishment. Therefore Ex.P19 does not confer any absolute right on Channaraddi. Since Ningaraddi died issueless, item No.5 devolves on Basavaraddi's only surviving Class-I heirs that is daughters Hanumavva, Shantavva, Thimmavva and son Channaraddi.
49. Sri C.N.Harlapur, learned Counsel relying on the judgment of the Supreme Court in H.Lakshmaiah Reddy's case referred to supra contended that the revenue records are not the documents of title. Section 133 of the Karnataka Land Revenue Act, 1964 which deals with the presumption available with regard to the mutation entries reads as follows:
"133. Presumption regarding entries in the records.-- An entry in the Record of Rights and a certified entry in the Register of Mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore"
50. In Shri Partap Singh (Since Dead)Thr Lrs vs Shiv Ram (Since Dead) Thr Lrs. in Civil Appeal No. 1511/2020 (Arising Out of SLP (Civil) No.725/2017) DD 20.02.2020, a later judgment R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 49 the Hon'ble Supreme Court in para 24 of the judgment in this regard held as follows:
"Presumption of truth attached to the record of rights can be rebutted only if there is fraud in the entry or the entry was surreptuously made or that prescribed procedure was not followed. It will not be proper to rely on oral evidence to rebut statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at much weaker level."
(Emphasis supplied) Thus it is clear that though the revenue entries are not the documents of title, they shall be presumed to be true until the contrary is proved or new entries lawfully substituted.
51. The mutation entries under Ex.P15 and Ex.P17 were about more than 50 years old. Channaraddi did not question those entries as against that admitted them. Therefore, the presumption under Section 133 of the Karnataka Land Revenue Act not only went unrebutted, but further stood affirmed by the admissions of Channaraddi. The entries regarding item No.5 in favour of Ningaraddi and Channaraddi to the exclusion of the daughters of Basavaraddi R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 50 were made without a registered document of relinquishment and they were disputed, it cannot be said that they were lawfully substituted on the death of Basavaraddi.
52. Once the properties were allotted to the share of Ningaraddi, they become his absolute properties. Any conveyance of such properties to the other person shall be by a registered document as per Sections 17 and 49 of the Registration Act, 1908. Otherwise, such alleged transfer does not affect the properties. Regarding item Nos.1 to 4, Channaraddi did not adduce any evidence to show that Ningaraddi during his life time conveyed those properties to himself and his sons as alleged. According to the plaintiffs, Channaraddi fraudulently got the names of his sons entered in the revenue records to those properties and they do not bind them.
53. When such revenue entries in favour of Basavaraddi, Doddanna and Hanamantharaddi (defendant Nos.2, 4 and 5) were made without any lawful conveyance, they do not confer any rights on Channaraddi, Basavaraddi, R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 51 Doddanna and Hanamantharaddi (defendant Nos.1, 2, 4 and
5). Under the circumstances, H.Lakshmaiah Reddy's case relied upon by Sri C.N.Harlapur, learned Counsel does not advance the case of Channaraddi or his other sons.
54. The claim of adverse possession set up by Channaraddi is wholly misplaced. To make such claim, Channaraddi had to admit the title of Ningaraddi. In the written statement, he denied the allotment of item Nos.1 to 4 properties to the share of Ningaraddi. Further, defendant No.5 filed the independent written statement and he did not set up any defence of adverse possession. Doddanna (Defendant No.4) adopted the written statement of Hanamantharaddi (Defendant No.5). Though, Channaraddi pleaded adverse possession for his sons Basavaraddi, Doddanna and Hanamantharaddi, they did not enter the witness box to speak to that. Thus, the claim of adverse possession was wholly unsustainable.
55. In para 20 of the judgment in Shasidhar's case referred to supra relied upon by Sri C.N.Harlapur, learned R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 52 Counsel it was held that in a suit for partition, the Court has to first examine the nature and character of the properties, who was the original owner of the suit properties, whether they were his self acquired properties or ancestral properties. It was held that secondly, the Court has to consider on the death of such party, how his interest in the property devolves on surviving members of the family. Thirdly, whether the properties were capable of being partitioned and fourthly, whether all properties are included in the suit.
56. As already pointed out, the flow of the title of item Nos.1 to 4 properties to Ningaraddi on the basis of Ex.P15 and Ex.P17, deposition of PW.1, PW.2, DW.1 and admission of DW.5 made it clear that Ningaraddi acquired them in a partition and therefore, in his hands they became his absolute properties. On his death, as per Section 8 of the Hindu Succession Act, 1956, they devolved on his wife. On her death, since there were no Class-I heirs as per Section 15 of the Hindu Succession Act, they devolve on his sisters and the only brother Channaraddi.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 53
57. Similarly item No.5 property devolves on the plaintiffs and defendant No.1 in the suit for the reasons stated supra. Therefore, the judgment in Shasidhar's case does not in any way advance the case of Channaraddi and his other sons. In the light of the aforesaid evidence and legal position, the trial Court was fully justified in holding that plaintiffs were entitled to share in item Nos.1 to 5 properties. Reg. Item No.6 property in O.S.No.31/2009.
58. Item No.6 property was land bearing Survey No.112 measuring 18 acres 31 guntas of Karamadi village. Plaintiffs claimed that item No.6 was the property of Ningaraddi. Somaraddi claimed that in the partition between Basavaraddi and his sons no share was given to Adivavva, therefore, she objected that. He further contended that to satisfy the claim of Adivavva, Basavaraddi gave Survey Nos.112 and 145 to Adivavva towards her share and Survey No.205 was given to her towards her maintenance which transformed into her absolute estate. He further claimed that, Adivavva bequeathed Survey Nos.205, 112, and 145 in his R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 54 favour under the Will dated 25.08.1974. Channaraddi and his other sons denied the contentions of plaintiffs and Somaraddi both.
59. Having regard to such contentions burden was on Somaraddi to prove that Survey Nos.112, 145 and 205 were the properties of Adivavva and she bequeathed those properties to him under the Will dated 25.08.1974.
60. To prove the said contention, Somaraddi relied upon Ex.P13 Mutation Entry No.244 dated 22.08.1927, Ex.P12 Mutation Entry No.1909 dated 13.08.1974, Ex.P14 Mutation Entry No.773 dated 09.06.1947, Ex.P20 Mutation Entry No.1966 dated 28.04.1977, Ex.D2 the certified copy of the statement of Channaraddi dated 24.03.1977 to the revenue authorities, Ex.D3 copy of Rule 65 notice in Form U dated 26.02.1977, Ex.D5 the certified copy of the Will of Adivavva dated 25.08.1974 and the admissions of DW.5 himself.
61. In his evidence, Somaraddi reiterated his case and spoke to the above said documents. As already pointed out, plaintiffs have not challenged the findings of the trial Court R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 55 that Survey Nos.112, 145 and 205 belonged to Adivavva and she has bequeathed them to Somaraddi.
62. Ex.P14 Mutation Entry No.773 dated 09.06.1947 shows that on the death of Somaraddi, the grandfather of Channaraddi and Ningaraddi on 05.07.1946, the name of Basavaraddi the father of Channaraddi was entered to Survey Nos.102, 107/3, 112, 145/1, 145/2, 205, 238/1+2A, 179/4 and 239/1 on 09.06.1947. Ex.P13 Mutation Entry No.244 shows that Somappa the grandfather of Ningaraddi and Channaraddi, along with his brother Ningappa under a family arrangement deed dated 19.06.1926 gave Survey No.205 to Adivavva in lieu of her maintenance with life estate. Those entries were not disputed.
63. Channaraddi (DW.5) in his cross-examination admitted that Adivavva was the elder sister of his father and Survey Nos.112 and 145 were given to her as her share under the report to the revenue authorities as reflected in Mutation Entry No.1909. He admits that in the year 1977, his son Somaraddi was five or six years old and he was the guardian R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 56 for minor Somaraddi, but he pleads his ignorance to the suggestion that Adivavva has bequeathed RS No.112 and 145 to Somaraddi under the Will. But, he unequivocally admitted that he himself got entered the name of Somaraddi under Mutation Entry No.1966 (Ex.P20) as per the Will of Adivavva. He also admitted that he got such entry effected on the basis of appropriate documents and those documents are with him. Therefore, Ex.P20, Ex.D2 to Ex.D5 stood proved by the admission of Channaraddi himself.
64. The question with regard to Ex.P20/Mutation Entry No.1966 was objected by Channaraddi's Counsel on the ground that the said entry relates to Somaraddi (defendant No.3). That objection was reserved for consideration at the final hearing. It is settled law that in a suit for partition all the parties are in the array of plaintiffs. Apart from that, the question posed related to one of the subject matters, therefore was relevant. Therefore, there was no merit in such objection.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 57
65. Having given such clean admissions, it was argued in these appeals that the original of Ex.D5 was not produced, therefore, the trial Court was in error in accepting that Will. Somaraddi in his evidence contended that the original of Ex.D5 was not in his custody and that was with Channaraddi. His evidence that he obtained the certified copy from the revenue authorities was not disputed. When Channaraddi himself produced the Will before the revenue authorities, that too during the minority of Somaraddi, it was for him to explain where the original document was.
66. Section 58 of the Indian Evidence Act, 1872 states that facts admitted need not be proved. In the light of the clean admission of Channaraddi that he got the name of Somaraddi entered in the revenue records by virtue of Will of Adivavva, the trial Court's reliance on Ex.D5 the certified copy of the Will cannot be found fault with. Needless to say that by virtue of Section 14(1) of the Hindu Succession Act, 1956 the limited estate of Adivavva in Survey No.205 got enlarged as absolute estate.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 58
67. Having regard to such admissions, evidence on record and the legal position, the trial Court was justified in holding that Survey Nos.112, 145 and 205 were the absolute properties of Adivavva and she bequeathed those properties in favour of Somaraddi under Ex.D5 and others have no share in those properties.
Reg. Non inclusion of Survey No.205 and non-joinder of Rohan in the suit.
68. It was contended that Survey No.205 was also family property and that stands in the name of Rohan the son of Somaraddi and therefore, the suit was bad for non-inclusion of the properties and non-joinder of necessary party.
69. The suit was not for partition and separate possession of plaintiff's share in the joint family properties. But the plaintiffs' claimed share in the suit schedule properties as Class-II heirs of Ningaraddi. The discussions made supra show that Survey No.205 was not the property of Ningaraddi. Therefore, the question of including the said property or impleading the holder of the said property in the suit does not arise. Therefore, the contention regarding non-inclusion of R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 59 Survey No.205 and non-joinder of Rohan deserve no merit and was rightly rejected by the trial Court. Reg. Item No.10 of the property in O.S.No.31/2009 and the Will dated 01.01.2001 of Gangavva and Mallamma (defendant Nos.9 and 10) in O.S.No.55/2009.
70. Item No.10 was the house property situated at Plot No.6 of Krishnapura village of Hubballi Taluk. Plaintiffs in both the above suits contended that Ningaraddi acquired the said property out of his income from medical practice and his savings.
71. Disputing that Channaraddi contended that Ningaraddi acquired the said property availing loan from him and could not repay the same, therefore, Ningaraddi permitted him to occupy the said house since 31.01.1998. He claimed that he has perfected his title to the said property by adverse possession.
72. Somaraddi admitted that item No.10 was acquired by Ningaraddi and that was his absolute property. But he contended that Ningaraddi bequeathed the same to him under R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 60 the Will dated 05.01.1998 and thus he is the absolute owner and in possession of the same.
73. Since Channaraddi and his other sons admitted that Ningaraddi acquired the property, but only contended that Channaraddi funded the purchase of the property, the burden of proving the said fact was on them. Except his self serving statement, Channaraddi did not produce any material or evidence to show that he lent loan to Ningaraddi and the property was acquired out of the said amount. Even assuming for the arguments sake that he had lent the loan, mere lending of the loan does not confer the title to the property on the lender. At the most his right would be to recover the loan amount. Probably for that reason, Channaraddi set up the claim of perfection of title by adverse possession.
74. It is the settled law that the person claiming perfection of title by adverse possession has to plead and prove that he was in possession of the property peacefully and continuously for more than 12 years claiming title hostile to R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 61 that of the true owner to the knowledge of the true owner. He also has to admit the title of the true owner.
75. In the case on hand, Channaraddi at one breath in his pleadings as well evidence claims that because he has funded the purchase of the property he is the owner. At another breath, he claims that he has perfected his title by adverse possession. Both such contentions cannot go together and they are mutually destructive.
76. Further, Channaraddi himself in his pleadings claimed that Ningaraddi permitted him to occupy the house. In that event that becomes the permissive possession and not the hostile possession. Such statement demolishes his claim of adverse possession.
77. Somaraddi claiming title and possession over the property on the basis of the Will had filed O.S.No.55/2009 against Channaraddi and his other sons for declaration of title and permanent injunction. Under the circumstances, Channaraddi was required to prove his possession over the property much less 12 years possession.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 62
78. Claiming that he is in lawful possession of the property, Channaraddi filed O.S.No.79/2013 (original number 223/2010) against Somaraddi for permanent injunction. Channaraddi did not adduce any evidence in O.S.No.55/2009 connected with O.S.No.79/2013. Whereas in O.S.No.31/2009, Somaraddi produced Ex.D6 to Ex.D9 namely, the postal correspondence delivered to him on the address of item No.10 sent by State Bank of India, Life Insurance Corporation and Income Tax Department. In O.S.No.55/2009 connected with O.S.No.79/2013 he produced Ex.P3 to Ex.P11 again the correspondences sent by Life Insurance Corporation from 1999 to 2008, State Bank of India and RTC of item No.10 for the year 2008-2009. Those documents indicated that Somaraddi was in possession of the property.
79. Further, in O.S.No.31/2009, Channaraddi admitted in his cross examination that his voters list, ration card are at Karamadi village address. To the suggestion that he permanently resides in Karamadi, he says that he is residing in Karamadi as well as in Hubballi. He admitted that Ningaraddi resided in the said house till his death. Though he R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 63 claimed that he was paying the tax of item No.10 property to municipal corporation and possesses those tax paid receipts, he did not venture to produce them. He admitted that Somaraddi is transacting all his affairs from the address of item No.10 property but evasively said that those documents may be concocted. To prove their possession of item No.10, Channaraddi's other sons did not enter the witness box. Considering all these facts, the trial Court negatived the claim of adverse possession with regard to item No.10 property as well as the possession of Channaraddi and his other sons over the said property.
80. Then the next question is whether Ningaraddi disposed that property under Will dated 05.01.1998 in favour of Somaraddi as claimed by him. Channaraddi and his other sons disputed the signatures of Ningaraddi on the Will and contended that the Will was fabricated and is a suspicious document.
81. How the Will has to be proved is expounded in detail by the Bench of Four Judges of the Hon'ble Supreme R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 64 Court in H. Venkatachala Iyengar vs B.N.Thimmajamma & Others5. Referring to the said judgment catena of other judgments were rendered including Apoline D'Souza's case referred to supra. The sum and substance of the said judgments was that having regard to Sections 67 and 68 of the Indian Evidence Act, 1872 the signature and the handwriting of the testator must be proved, one attesting witness at least shall be examined to prove the execution of the Will. The sound disposing state of mind of the testator at the time of execution of the Will and due attestation shall be proved.
82. It was further held, ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. It was held that having regard to the solemnity of the Will, if the Will is surrounded by suspicious circumstances, even in the absence of plea of adversary 5 AIR 1959 SC 443 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 65 regarding fraud, undue influence etc, the propounder of the Will has to satisfy the judicial conscience of the Court regarding the due execution of the Will.
83. The following were generally found as suspicious circumstances:
(i) Lack of sound disposing state of mind of the testator.
(ii) Propounder taking active role in execution of the Will and taking substantial benefits under the Will.
(iii) Unnatural disposition for example excluding/ disinheriting the natural heirs.
(iv) Lack of plausible explanation for disinheriting the natural heirs.
(v) Wills surfacing its existence after long delay
84. In the light of the aforesaid guidelines, the question whether Somaraddi proved the Will propounded by him has to be examined. The original Will was produced in O.S.No.31/2009 and marked as Ex.D1. That was taken back substituting the certified copy, then produced and marked as Ex.P18 in O.S.No.55/2009 C/w O.S.No.79/2013. Ex.P18 is a R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 66 typed and unregistered document purportedly executed in Hubballi on 05.01.1998 and notarized by one P.B.Olekar, a Notary. In that one Ashok C.Kakambi has purportedly identified the executant before the Notary. The notary has not stated the place of notarization.
85. In support of the Will, Somaraddi was examined as DW.1 in O.S.No.31/2009 and PW.1 in O.S.No.55/2009 C/w O.S.No.79/2013. In O.S.No.31/2009 he examined DW.2 to DW.4 Krishna Poojar, Ningaiah Savadathimath, Gurunath Karjagi as attestors. In O.S.No.55/2009 C/w O.S.No.79/2013, he examined Krishna Poojar and Gurunath Karjagi as PW.2 and PW.3.
86. As per Ex.P18 at the time of execution of the Will, namely on 05.01.1998, Ningaraddi was 57 years old. It is not the case of the parties that Ningaraddi was suffering from some ailment inducing him to make arrangement for disposition of properties. It has come in evidence that on 12.02.2002, Ningaraddi died due to sudden heart-attack without suffering any prolonged ailment. He himself was a R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 67 doctor. Himself and his wife Lakshmavva had no issues. It has come in evidence that the relationship of Ningaraddi and Lakshmavva was cordial. That was the only house of Ningaraddi at Hubballi where the couple were residing.
87. In the Will disposition excludes Lakshmavva. Ex.P2 in O.S.No.55/2009 namely the death certificate of Lakshmavva shows that she died at Karamadi on 28.04.2002 i.e. within two months from the date of death of Ningaraddi and not in item No.10 property. In the Will, the only recital for excluding Lakshmavva is that Somaraddi shall take care of Lakshmavva in the same way he took care of the testator till then. However, there was no evidence that Ningaraddi was under the care of Somaraddi. According to Somaraddi himself as well as the sisters of Ningaraddi, Ningaraddi was well-off and was on his own. Therefore, to a man of ordinary prudence a doubt arises about exclusion of the wife from disposition.
88. It is the contention of Somaraddi that Ningaraddi had special affection for him, brought him up and educated him in BEMS degree. It was his further contention that during R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 68 his education and even after his marriage, he was residing in item No.10 house and practicing medicine with him. In the cross-examination of Somaraddi, all those contentions including his BEMS qualification were denied. Somaraddi did not produce any authenticated records like voters list, ration card, school records etc to show that he was ordinarily residing with Ningaraddi and his wife in item No.10 property since his student life.
89. In his cross-examination, in O.S.No.55/2009 Somaraddi unequivocally admits that based on the Will he gave application to the Tahsildhar on 01.06.2009. Therefore, it is clear that from 05.01.1998 till 01.06.2009 the Will had not seen the light of the day.
90. Since Channaraddi and his other children disputed the signatures of Ningaraddi on the Will, claimed that to be a concocted document and the Will was surrounded by the aforementioned suspicious circumstances, Somaraddi had the heavy burden of proving signatures of Ningaraddi on the Will and the due execution of the Will. The Will was unregistered R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 69 one purportedly signed by Ningaraddi. Thereafter one Ashok C.Kakumbi purportedly identified Ningaraddi, then purportedly signed by the attestors and thereafter notarized by the notary. In the light of the rival contentions of the parties and the form of the document viz., the Will, we have to see whether oral evidence adduced to prove the Will is consistent and cogent with the document.
91. Somaraddi in his cross-examination in O.S.No.31/2009 states that Ex.D1 was executed on 05.01.1998 and on that day Ningaraddi sent him to the clinic saying that he will be delayed to go to clinic, therefore, he did not accompany Ningaraddi for execution of Ex.D1. He says that before Ningaraddi going out for execution of Ex.D1, he was present in the house and he had seen three attesting witnesses. At another breath, in the cross-examination, he says that he dropped Ningaraddi on his motor bike to the Court and three witnesses left to the Court from the house of Ningaraddi in an auto-rickshaw.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 70
92. Though in his cross-examination at one breath he made an attempt to say that he gained the knowledge of the Will when Laskmavva handed over the Will to him only after one month of the death of Ningaraddi. But in another breath in his cross-examination, he states that Ningaraddi got written the Will through a typist in Hubballi Court premises signed that along with attesting witnesses and at that time, he himself was present. Therefore, his evidence is self contradictory and shows his role in the alleged execution of the Will. Despite such knowledge, why did he not produce the Will anywhere till 01.06.2009 is not explained.
93. DW.2 in O.S.No.31/2009 alleged attestor to the Will in his chief examination stated that Ningaraddi got typed the Will by a typist, then read over the same to the attestors, then signed that and thereafter on his instructions, himself and other attestors signed. But in the cross-examination, he stated that his chief-examination affidavit was prepared by his Lawyer and he does not know the name of the said lawyer.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 71
94. DW.2, in his cross-examination, states that Ningaraddi summoned him to his house stating that he has to get affidavit done. He further states that Ningaraddi told him that he has to get the affidavit done in the name of the boy, thereafter, himself, Ningaraddi and other attestors went to the Court in auto-rickshaw and Ningaraddi had brought the stamp paper. He further states that he does not know who brought the stamp paper and from where. He says when he reached the Court only the advocate of Ningaraddi was present with him and he got the Will prepared through the Advocate known to him, but he was not present at that time. He says that he does not know who gave the instructions to draft the Will. When questioned in cross-examination, as to who looked after Ningaraddi in his last days, DW.2 stated that since Ningaraddi died within a day, there is no question of anybody looking after him. He further stated that first the advocate signed on the Will, followed by Ningaraddi and themselves namely the attesting witnesses. He said that Ex.D1 was ready before he reached the place.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 72
95. The same witness was examined in O.S.No.55/2009 as PW.2 on 29.10.2015 and cross-examined on 24.02.2016. In the said cross-examination, he states that Ningaraddi purchased the stamps, met an advocate and got typed the Will, but he does not know the name of that advocate. According to him, first Ningaraddi signed on the Will, then himself and then other signed on the Will. Since the Will was notarized one, making an improvement after four years, he stated that before he signing the Will notary had put his signature and seal on Ex.P18 the Will. Such statement was conspicuously absent in his evidence in O.S.No.31/2009.
96. DW.3 in O.S.No.31/2009, Ningaiah Savadathi Math another attestor, in the chief examination stated that Ningaraddi got typed the Will by a typist. In the cross-examination he states that Ningaraddi got written the Will in the Court compound and then read over the same to him. But he does not know who gave the instructions to prepare the Will and through whom the Will was got written. He also states that himself, defendant Nos.2 and 4 (Probably DW.2 and DW.4) along with Ningaraddi reached the Court in R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 73 auto-rickshaw at about 10.30 a.m. and Ningaraddi alone went and came back with Ex.D1, read over the same to them. He further states that on the Will first Ningaraddi signed, followed by DW.2, himself and DW.4. He does not speak about presence of the lawyer and the lawyer signing the Will first or about the notarization of the Will. He says that he did not see in detail how Ningaraddi signed and he has no personal knowledge as to who prepared the Will and who typed that and where that was typed. Though he claims that he was well acquainted with Ningaraddi, he does not know how was the relationship between Ningaraddi and his wife and when he died.
97. DW.4 in O.S.No.31/2009 Gurunath Karjagi though in the chief-examination affidavit reiterates whatever was stated by DW.2 and DW.3. In the cross-examination by the plaintiffs therein, he also stated that Ningaraddi took them to the Court premises, got typed the Will, read over the same to them and took his signature.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 74
98. In the cross-examination by the Counsel for Channaraddi and his other sons he states that himself, DW.2 and DW.3 went to the Court in auto-rickshaw and Somaraddi dropped Ningaraddi to the Court on his motor cycle. He states that Ningaraddi had brought the stamp paper and was sitting with a typist in the Court compound and got written the Will through the said typist. At one breath, he says that Will was got typed by the plaintiffs and at another breath, he says he does not know who got that typed. DW.4 further states that he does not know how was the relationship between Somaraddi and Ningaraddi and except himself, DW.2 and DW.3 none else have signed on Ex.D1. Such statement was contrary to the evidence of the other attesting witnesses regarding notarization.
99. The Will is purportedly signed by one Ashok C. Kakambi and the notary who has notarized the documents. DW.4 of O.S.No.31/2009 was examined in O.S.No.55/2009 as PW.3. After four years, there in his cross-examination he makes improvements regarding notorization. Still, his evidence goes inconsistent with other witnesses as he states R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 75 that they took Ex.P18 to the notary at the entrance of the Court and on notary reading over the same to him, himself and other attesting witnesses signed that, but he does not know whether notary signed the document or not. According to him, before himself and other attestors signing the Will, nobody else had signed on that. But again he takes a U turn and states that before he signed Ex.P18, notary had subscribed his signature and affixed the seal on the same.
100. All the three attesting witnesses do not speak about the identification of Ningaraddi by Ashok.C.Kakambi. They were not able to tell the particulars of Ningaraddi's brothers and sisters and his relationship with his wife. Their evidence indicates the participation of Somaraddi in bringing up Ex.D1/Ex.P18. Apparently, the attestors were unable to state the names of the scribe of the Will, notary and the advocate who was allegedly consulted. The alleged scribe and the notary were not examined. An attempt was made to say that the Will was drafted through an Advocate. As pointed out above, the evidence of Somaraddi and other attesting witnesses does not corroborate each other.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 76
101. Under the law, when a Will is not required to be drafted on a stamp paper, why an advocate gets the same drafted on the stamp papers was not clarified. The stamp papers for Ex.D1/Ex.P18 were purportedly issued on 16.01.1997, that was one year prior to the execution of the alleged Will. It was purportedly purchased on 05.01.1998 by Ningaraddi from one M.H.Angadi, Stamp Vendor, Hubballi. Neither the said stamp vendor was examined nor his stamp register was summoned to show that Ningaraddi purchased the stamp papers. No attempt was made to prove the alleged signatures of Ningaraddi on Ex.D1/Ex.P18 by leading any other independent evidence or sending that to the opinion of the expert.
102. The trial Court in O.S.No.31/2009 compared the signatures found on the certified copy of Ex.D1 with alleged admitted signatures of Ningaraddi on the other documents. Section 73 of the Indian Evidence Act, 1872 contemplates comparison of the original signature and not the signature on the certified copy taken by mechanical process. Therefore, the arguments of Sri C.N.Harlapur, that such comparison is R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 77 contrary to Section 73 of the Indian Evidence Act is acceptable.
103. In the light of the evidence discussed above, the trial Court in O.S.No.31/2009 committed error in holding that the execution of the Will was proved by the evidence of Somaraddi and other attesting witnesses. The approach of the trial Court in appreciating the evidence on record and the circumstances of the case was erroneous and contrary to the principles laid down by the Hon'ble Supreme Court in H. Venkatachala Iyengar's case and Apoline D'Souza's case referred to supra.
104. In O.S.No.55/2009, the trial Court without appreciating elaborately the other aspects of the case upheld the Will mainly on the ground that the said Will was held proved in O.S.No.31/2009. Therefore, in both the suits, the trial Courts were not justified in holding that suit schedule item No.10 was the absolute property of Somaraddi.
105. Gangavva and Mallamma the other two daughters of Channaraddi claimed that Ningaraddi executed Will dated R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 78 01.01.2001 in their favour bequeathing item No.10 the landed properties at Karamadi. Item No.10 property in O.S.No.31/2009 was the sole subject matter of O.S.No.55/2009. Though they were not parties in O.S.No.31/2009, they were defendant Nos.9 and 10 in O.S.No.55/2009. Based on their written statement in O.S.No.55/2009, a specific issue was raised casting upon them the burden of proving the said Will. They did not produce the said Will before the trial Court in O.S.No.55/2009 at required time nor adduced any evidence. Therefore, the trial Court held that despite granting sufficient opportunity, they have not adduced any evidence and proved the Will set up by them. In these appeals they challenge the said finding on the sole ground that they were not given proper opportunity. Therefore, this Court has to examine whether they were not given the proper opportunity.
106. Somaraddi filed O.S.No.55/2009 against Channaraddi, his brothers and paternal aunts on 11.03.2009. Channaraddi and his sons filed written statement in the said suit on 20.07.2009. Due to some interim applications filed in R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 79 between, issues were framed on 28.09.2011. The matter was prolonged for quite some time in evidence. When the said matter was being prolonged for cross-examination of PW.1, on 26.07.2013 Gangavva and Mallamma filed I.A.No.7 to implead them as defendant Nos.9 and 10. That application was allowed on 07.12.2013.
107. After their impleadment, they did not file written statement for a long time and their right to file written statement was forfeited. After two years on 02.11.2015, when the matter was set down for defendants' evidence, they filed I.A.10 to recall the order passed against them and for leave to file the written statement. Along with IA No.10 they filed the written statement of defendant No.9 and memo by defendant No.10 for adopting the written statement of defendant No.9. That was allowed on cost of Rs.1,000/-.
108. On the basis of such written statement of defendant Nos.9 and 10, additional issues were framed on 01.12.2015. By then, the plaintiff's Somaraddi's evidence had commenced on 16.01.2012 itself. On the request of the R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 80 defendants therein, his cross-examination was deferred. He was cross-examined by defendant Nos.1 to 5 on 03.10.2015, 24.02.2016 and 27.02.2016 bit by bit. Defendant Nos.9 and 10 cross-examined PW.1 on 05.03.2016. Though PW.1 appeared five times after additional issues, he was not cross- examined by defendant Nos.9 and 10. Therefore, he was discharged on 06.01.2015.
109. The order sheet of the trial Court reveals that several times defendants filed applications to recall the plaintiff's witnesses for cross-examination and to lead their own evidence and they were allowed even putting them to terms. Ultimately, the matter was posted for defendants evidence on 08.03.2016. Till 25.04.2016 the defendants did not do the needful and their evidence was closed. On 27.04.2016, they come up with I.A.No.17 again seeking leave to adduce their evidence. Showing leniency, the said application was allowed on the same day with costs. But still the defendants did not lead evidence on 01.06.2016. Therefore their right to lead evidence was forfeited.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 81
110. Thereafter the defendants filed some other applications which were rejected. Then again defendant Nos.9 and 10 came up with I.A.No.19 to I.A.No.21 to recall the earlier order and permission to lead their evidence which were rightly rejected by the trial Court by a detailed order with observations about the conduct of the defendants.
111. Similarly, in R.F.A.No.4123/2012, Channaraddi and his other sons claim that the trial Court in O.S.No.31/2009 did not give them the fair opportunity to cross-examine their adversary witnesses and permit them to produce the documents and lead further evidence. The order sheet in that suit also clearly shows that despite granting sufficient opportunities, needful was not done on the appointed dates and several similar applications were filed. Ultimately, the trial Court while allowing one of such applications, on 13.06.2012 fixed time limit upto 21.06.2012 for completing the evidence. However, before that they came up with another application seeking direction to Somaraddi for the production of the original Will which was rejected.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 82
112. Both those orders were challenged before this Court in W.P.No.64827/2012 C/w W.P.64826/2012 (GM-CPC). This Court vide order dated 20.07.2012 making observations about the conduct of Channaraddi and his other sons held that the question of interfering with both the orders does not arise. The petitioners therein themselves undertook that they complete the cross-examination of DW.2 to DW.4 within one week from the date of the order i.e., 20.07.2012 and thereafter within the next one week, they complete their own evidence. Recording that undertaking this Court observed that since the suit is of the year 2009, the petitioners shall conclude the evidence within the time as undertaken by them and the trial Court shall conclude the proceedings within one week thereafter.
113. Having given such undertaking, Channaraddi and the other petitioners therein did not adhere to the said time schedule and adopted some other malicious tactics. Ultimately, the trial Court took up the matter for arguments and at that stage, they filed I.A.Nos.20 to 22 seeking production of documents, recalling DW.5, to lead further R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 83 evidence etc. The trial Court rejected those applications with very extensive reasonings meticulously explaining what all had transpired in the case by the conduct of Channaraddi and his other sons (applicants).
114. The records of both the suits show that appellants herein were contumacious and incorrigible defaulters not only towards their adversaries, but also towards the Court. They indulged in filing several applications only with the intention to invite the adverse orders and agitate them before the Higher Courts only to prolong the litigations. They were unsuccessful in all those applications and the matters arising there from. When they were unsuccessful in such acts they even went to the extent of filing transfer petition in Civil Petition No.543/2012 making allegations of bias against the Presiding Officer and did not pursue that. Apparently, Channaraddi himself has set up his daughters Gangavva and Mallamma only to prolong the proceedings. These are the classic examples of the abuse of the process of the Court. Their conduct is like a person throwing diamonds in the river and later wailing over the loss. Therefore, they cannot decry the R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 84 trial Courts alleging that they were not given fair opportunity. As against that the conduct of the concerned parties is depricable and calls for compensatory costs.
115. Since Gangavva and Mallamma did not adduce any evidence, the trial Court in O.S.No.55/2009 was justified in holding that they have not proved the Will. Apart from that, though they claim that Ningaraddi executed such Will on 01.01.2001, they did not produce that Will anywhere for about 10 years till they filed P & SC No.4/2010. It is not their case that there was no contacts between them and their father Channaraddi and his other sons who were sailing with him. Therefore, it is difficult to accept that they were not aware of the suits filed against their father and brothers in O.S.No.31/2009 and suit filed by Somaraddi in O.S.No.55/2009. Despite that, they did not array them as parties in P & SC No.4/2010 as respondents and obtained probate in that case by suppression of material facts. Therefore, that was rightly revoked in Civil Misc.Nos.53/2013 and 61/2013. Whatever suspicious circumstances discussed with regard to the Will of Somaraddi applies to them also.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 85 Therefore, in O.S.No.55/2009 the trial Court was justified in holding that Will dated 01.01.2001 set up by Gangavva and Mallamma (defendant Nos.9 and 10) was not proved. Reg. I.A.No.1/2015 in R.F.A.No.4123/2012.
116. Gangavva and Mallamma have filed the aforesaid application to implead them as respondents No.5 and 6 on the ground that while passing the order of revocation of probate in Civil Misc.No.61/2013, the V Additional District Judge, Dharwad has reserved the liberty to them to get themselves impleaded in O.S.No.31/2009 or in any appeal arising out of the said suit.
117. The observation made in the Civil Misc.No.61/2013 in that regard is as follows:
"The respondent herein are at liberty to establish their right, if any, under the said Will in O.S.No.31/2009 or in any appeals pending or by filing separate appeal challenging the judgment and decree of O.S.No.31/2009."
(Emphasis supplied)
118. From the above observation, it becomes clear that the said order has not conferred upon Gangavva and R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 86 Mallamma any right to get impleaded in the appeal and that was only liberty to file an impleading application. Such observations were made without considering whether such applications could be maintained that too at the appellate stage. Therefore they were only passing observations. It is a settled proposition of law under Order I Rule 10 of the Code of the Civil Procedure, 1908 can be invoked only to implead the necessary parties whose presence is required for effective adjudication of the matter.
119. The applicants were unsuccessful parties in O.S.No.55/2009. The appeal filed by them against the said judgment is also taken up for consideration in this judgment and the finding of the trial Court that they have failed to prove the Will dated 01.01.2001 set up by them is confirmed. In the light of that finding they do not become necessary parties to R.F.A.No.4123/2012. Thus the application is liable to be dismissed.
Reg. Court fee in O.S.No.55/2009:
120. The subject matter of O.S.No.55/2009 was the plot No.6 carved out of Survey No.101/A of Krishnapura R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 87 village, Hubballi Taluk and the house situated thereon. Ex.P5 in O.S.No.55/2009 is admittedly the RTC relating to the said property. The said document shows that the property was carved out of agricultural land assessed to the land revenue. The plaintiff therein sought the decree for declaration of his title to the said property and for perpetual injunction. The judgment and decree of the trial Court indicates that the plaintiff therein valued property at Rs.7,00,000/- for the purpose of jurisdiction of the Court and for the purpose of payment of Court fee valued the same under Sections 24(b) and 26 of the Karnataka Court-Fee and Suits Valuation Act, 1958 ('the KCF Act' for short) and paid the Court fee of Rs.50/-.
121. Defendant Nos.9 and 10 in their written statement very baldly state that the averments in the plaint regarding jurisdiction and valuation are not proper and Court fee paid on the plaint was not proper. They did not state for what reason that was not proper.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 88
122. Section 24 of the KCF Act deals with the valuation of the suit in case of declaration and injunction which reads as follows:
"Section 24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.-
a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on [rupees one thousand] which ever is higher;
b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on (rupees one thousand), whichever is higher;
c) Xxxx
d) In other cases, whether the subject matter of the suit is capable for valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on (rupees one thousand), whichever is higher;
Therefore, the Court fee was to be paid on 1/2 of the market value of the property or Rs.1,000/- whichever is higher.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 89
123. Section 7 of the KCF Act deals with determination of the market value of the property. Section 7(a) of the KCF Act deals with the land forming part of an entire estate or definite share of the estate paying annual revenue to the Government. In such event, the market value of the property shall be determined 25 times the revenue so payable. As noted above, Ex.P5 showed that suit property formed part of a land which was assessed to the land revenue. Therefore, for the purpose of Court fee the plaintiff assessed the property at Rs.1,000/- and paid Court fee of Rs.50/-.
124. Except Gangavva and Mallamma no other defendants challenged the correctness of the valuation or the Court fee payable or paid. None of the defendants adduced any evidence to show that the market value of the property was higher than that.
125. Section 49 contemplates the payment of Court fee which was payable before the trial Court and not what was paid before the trial Court. The appellants in R.F.A.No.100090/2020 and R.F.A.No.100092/2020 have paid R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 90 the same Court fee as was paid by the plaintiffs in O.S.No.55/2009 before the trial Court. They have not paid the higher Court fee saying that the Court fee payable was on the higher side. Therefore, there is no merit in the contention that the finding of the trial Court on Court fee issue was unsustainable.
Reg. Sustainability of the impugned judgment and decree of the trial Court in O.S.No.31/2009:
126. Apart from the challenge to the decree on the grounds discussed above, the appellant's counsel argued that the trial Court has not shown the names of legal representatives of Thimmavva (Plaintiff No.3). The records clearly show that on the death of Thimmavva her legal representatives were brought on record before the trial Court and the plaint was also amended. If their names were not reflected in the judgment that is only an accidental error which could be corrected at any time by invoking power under Section 152 CPC. It was not a judgment against a dead person. Therefore the said omission does not vitiate the judgment.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 91
127. The aforesaid reappreciation of the pleadings, evidence, records and the legal position, it can be concluded that the impugned judgment and decree of the trial Court calls for interference only with regard to item No.10 property. Plaintiffs and defendant No.1 Channaraddi are entitled equal one-fourth share in that property. The impugned judgment and decree requires to be modified only to that extent. Reg. Sustainability of the impugned judgment and decree of the trial Court in O.S.No.55/2009 c/w O.S.No.79/2013:
128. One more ground of challenge to the judgment and decree in O.S.No.55/2009 was that the said suit was hit by Section 11 of the Civil Procedure Code that means principles of res-judicata. It was contended that the issue with regard to subject matter in O.S.No.55/2009 was already decided in O.S.No.31/2009, therefore O.S.No.55/2009 was not maintainable.
129. Section 11 of the Civil Procedure Code bars a Court from adjudicating an issue if the same issue was decided in a former suit by a competent Court. First of all O.S.No.55/2009 R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 92 itself was the former suit and not O.S.No.31/2009. Secondly when the suit in O.S.No.55/2009 came up for trial, O.S.No.31/2009 was not yet decided by the trial Court. Thirdly this Court in RFA No.4123/2012 on 31.07.2013 has granted interim stay in respect of item No.10 property which was the subject matter of O.S.No.55/2009. Therefore, the issue regarding the property in question was not finally decided as it was pending in the appeal. Therefore the contention regarding the bar of principles of res-judicata is untenable.
130. Since it is held that the plaintiff in O.S.No.55/2009 has failed to prove the Will in his favour in respect of the subject matter in O.S.No.55/2009 is not entitled for declaration of title to the said property. Since the brother and sisters of Ningaraddi are entitled to the share in the said property, no injunction can be granted against them. Therefore the impugned judgment and decree in O.S.No.55/2009 is unsustainable.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 93
131. The plaintiff in O.S.No.79/2013 has failed to prove his possession over the suit property. Decree for permanent injunction can be granted only if the possession of the plaintiff over the suit property is proved. Therefore, the trial Court has rightly dismissed the suit in O.S.No.79/2013.
132. For the aforesaid reasons, I.A.No.1/2015 in RFA No.4123/2012 is hereby dismissed. RFA No.4123/2012 is partly allowed. The judgment and decree dated 06.08.2012 passed by the Senior Civil Judge, Ron in O.S.No.31/2009 is modified as follows:
Suit of the plaintiffs is decreed in part with costs through out and compensatory cost of Rs.50,000/- payable by defendant No.1 Channaraddi to the plaintiffs.
It is declared that the plaintiffs and defendant No.1 are entitled to 1/4th share each in suit schedule item Nos.1 to 5, 10, 11 and 12 properties. Plaintiffs shall be put in possession of their separate 1/4th share in the said properties.
There shall be a preliminary decree accordingly.
R.F.A.No.4123/2012 C/w R.F.A.No.100090/2020 R.F.A.No.100091/2020 R.F.A.No.100092/2020 94 R.F.A.No.100090/2020 and R.F.A.No.100092/2020 are hereby allowed. The impugned judgment and decree dated 20.06.2016 in O.S.No.55/2009 passed by the Principal Senior Civil Judge, Hubballi is hereby set aside.
Suit of the plaintiff in O.S.No.55/2009 is dismissed. R.F.A.No.100091/2020 is hereby dismissed.
(Sd/-) JUDGE (Sd/-) JUDGE KSR