Karnataka High Court
Smt. Danamma Kom, Yanka Chaluvadi vs Smt. Lalita Kom. Hanumantappa ... on 21 April, 2023
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RSA No. 5677 of 2010
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21st DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
RSA NO.5677 OF 2010
BETWEEN:
1. SMT. DANAMMA KOM
YANKA CHALUVADI,
AGE: 44 YEARS, OCC: RYOT AND COOLIE,
R/O. SORAB ROAD IN BANAVASI VILLAGE
TQ: SIRSI PIN:581402.
2. SMT. SHANTAMMA KOM
KERIYAPPA CHALUVADI,
AGED 42 YEARS,
Digitally
signed by J OCC: RYOT and COOLIE,
J
MAMATHA R/O. SIRSI TALUK,
MAMATHA Date: MARIGUDI ROAD,
2023.04.21
16:44:46 CHALUVADI GALLI,
+0530 SIRSI, UTTAR KANNADA,
PIN:581402.
3. SMT. RATNAMMA KOM
VASU CHALUVADI,
AGED 40 YEARS,
OCC: RYOT and COOLIE,
R/O. SIRSI TALUK,
MARIGUDI ROAD,
CHALUVADI GALLI,
SIRSI, UTTAR KANNADA,
PIN:581402. ...APPELLANTS
(BY SHRI VISHWANATH HEGDE, FOR
SHRI NEERALAGI AND K.S. PATIL, ADVOCATE)
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RSA No. 5677 of 2010
AND:
1. SMT. LALITA KOM
HANUMANTAPPA CHALUVADI,
AGE ABOUT 48 YEARS,
R/O. BIDRAKOPPA,
POST: HIREKANAGI,
TQ. HANGAL, DIST. HAVERI,
PIN:581104.
2. KUMAR ANNAPPA HANUMANTAPPA CHALUVADI
AGE: MAJOR,
R/O.BIDRAKOPPA, POST: HIREKANAGI,
TQ. HANGAL, DIST. HAVERI,
PIN:581104.
3. KUMAR RAJESH HANUMANTAPPA CHALUVADI,
AGE: MAJOR, R/O. BIDRAKOPPA,
POST: HIREKANAGI,
TQ. HANGAL, DIST. HAVERI,
PIN:581104.
4. KUMAR. MALLIKARJUN HANUMANTAPPA CHALUVADI,
R/O. BIDRAKOPPA, POST: HIREKANAGI,
TQ. HANGAL, DIST. HAVERI,
PIN:581104.
5. BASAVARAJ SHIVAPPA CHALUVADI,
AGE: MAJOR, OCC: COOLIE,
R/O. BANAVASI,
PIN:581104. ...RESPONDENTS
(BY SHRI A.P. HEGDE JANAMANE FOR
SHRI P.N. HOSAMANI, ADVOCATE FOR R1 TO R4
AND NOTICE TO R5 IS SERVED)
***
THIS R.S.A. IS FILED U/SEC.100 CPC., AGAINST THE
JUDGMENT AND DECREE DATED 16.06.2010 PASSED IN
R.A.NO.415/2009 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT AT SIRSI, DISMISSING THE APPEAL FILED
AGAINST THE JUDGEMENT AND DECREE DATED 22-6-09,
PASSED IN O.S.NO.8/2002 ON THE FILE OF THE CIVIL JUDGE
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RSA No. 5677 of 2010
AT SIRSI AND DISMISSING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.03.2023, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Appellants/plaintiffs feeling aggrieved by the judgment of first Appellate Court-Fast Track Court, Sirsi, in R.A.No.415/2009 dated 16.06.2010, preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiffs can be stated in nutshell to the effect that propositus Shivayya @ Shivanna Basanna Chaluvadi and his wife Guttemma died on 25.12.1990 and 26.06.1993 respectively. Plaintiffs are their daughters and they have a brother by name Hanumantappa Chaluvadi (disputed by plaintiffs). Occupancy rights of the suit property was granted to their father Shivanna which is evidenced under the Mutation Entry No.2066 dated 14.07.1981. Plaintiffs being daughters of Shivanna are claiming declaration and consequential relief of injunction with respect to suit property on the basis of registered Will dated -4- RSA No. 5677 of 2010 12.12.1990 executed by their father Shivanna. The plaintiffs right from the date of acquiring right over the suit property are in actual physical possession and enjoyment of the same. One Hanumantappa Chaluvadi who was residing with their father Shivanna got entered his name in the records without notice to the plaintiffs and said entries are not binding on the plaintiffs. The defendants being the wife and children of deceased Hanumantappa Chaluvadi started asserting their right over the suit property. Therefore, plaintiffs were constrained to file suit for the relief claimed in suit.
4. In response to the suit summons, the defendants appeared through their learned counsel and filed written statement contending that Shivanna partitioned suit property in favour of plaintiffs evidenced under M.E.No.2449 dated 02.04.1987 without retaining any share for himself. Defendant No.5 is the son of Lakshmi, who was daughter of Shivanna. The husband of 1st defendant Hanumantappa Chaluvadi was not residing in Banavasi and was working as driver and residing at Hubballi. Thereafter, plaintiffs along with husband of Lakshmi have relinquished their right in favour of Hanumantappa Chaluvadi evidenced under M.E.No.2496 dated 22.04.1988. The brother of plaintiffs - Hanumantappa Chaluvadi was in -5- RSA No. 5677 of 2010 possession and enjoyment of the suit property from the date of plaintiffs relinquishing their rights in his favour. On the death of Hanumantappa Chaluvadi dated 04.07.1999, defendants being the wife and children of Hanumantappa Chaluvadi have succeeded to the property evidenced under M.E.No.3009. The relinquishment of rights by plaintiffs was not questioned from 1988 till 1999 i.e., for more than 11 years and the plaintiffs have no any right over the suit property. Therefore, on these grounds prayed for dismissal of the suit.
5. Defendant No.5 has filed separate written statement contending that he is unaware about Shivanna partitioning the properties in favour of plaintiffs and execution of registered Will dated 12.12.1990 in favour of plaintiffs. It is admitted that after coming to know about the revenue entries, same were questioned before the Assistant Commissioner, Sirsi. It is further admitted that plaintiffs are in possession and cultivation of the suit property. The husband of 1st defendant and other defendants were never in possession and cultivation of the suit property.
6. The trail Court has framed the issues and the plaintiffs to prove their case relied on the evidence of PWs-1 to -6- RSA No. 5677 of 2010 4 and documents as per Ex.P.1 to Ex.P.15. The defendants have relied on the evidence of DW-1 and documents Ex.D.1 to D.5. The trial Court after appreciation of evidence has dismissed the suit of plaintiffs. Appellants/plaintiffs have challenged the said judgment and decree of trial Court before the first Appellate Court on the file of Presiding Officer, Fast Track Court, Sirsi, under R.A.No.415/2009. The first Appellate Court by its judgment dated 16.06.2010 dismissed the appeal and confirmed the judgment and decree of trial Court.
7. Appellants/plaintiffs are challenging the concurrent findings of both the Courts below contending that both the Courts below have committed serious error in outrightly dismissing the suit of plaintiffs. If the Will Ex.P.15 is not proved, then the right of plaintiffs in the suit property cannot be denied. The defendants are claiming their right over the suit property on the basis of alleged relinquishment of plaintiffs in favour of Hanumantappa Chaluvadi. The relinquishment deed in favour of Hanumantappa Chaluvadi of the value exceeding Rs.100/-, requires registration and without registration, no any valid title can be conveyed to Hanumantappa Chaluvadi. Therefore, the defendants cannot acquire any right over suit property. The observations and findings recorded by both the -7- RSA No. 5677 of 2010 Court below in outrightly dismissing the suit of plaintiffs cannot be legally sustained. Therefore, prayed for allowing the appeal and to set aside the judgment of both the Courts below and to decree the suit.
8. In response to notice of appeal, respondents/ defendants have appeared through learned counsel.
9. This Court on 20.03.2014 has framed the following substantial questions of law:
i) Whether both the Courts have committed
a serious error in coming to the
conclusion that there was earlier partition without there being any substantial proof to that effect?
ii) Whether both the Courts have committed
a serious error in coming to the
conclusion that relinquishment deed
Ex.D.3 is valid and it is proved in
accordance with law?
iii) Whether both the Courts have committed
a serious error in holding that the
disputed Will is proved in accordance with law in spite of several suspicious circumstances surrounding the same?
10. Heard the arguments of both sides.
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11. The occupancy rights with respect to Sy.No.73/2 measuring 7 acres 10 guntas of Banavasi, was granted to the father of plaintiffs Shivanna as per the order in LRM SR-5116 dated 16.05.1981 evidenced under M.E.No.2066 dated 14.07.1981 of Banavasi gram and the plaintiffs are the daughters of deceased Shivanna, are the facts not in dispute. The plaintiffs have disputed status of Hanumantappa Chaluvadi being son of Shivanna. Whereas defendants have contended Hanumantappa Chaluvadi was the son of Shivanna and was working as driver and residing at Hubballi. Plaintiffs got partitioned the suit property in their favour from Shivanna evidenced under M.E.No.2449 and Shivanna did not retain any share for himself. Thereafter, the plaintiffs have relinquished their right in favour of Hanumantappa Chaluvadi. Therefore, status of Hanumantappa Chaluvadi being the son of Shivanna has to be decided first before adverting to other questions involved in the suit.
12. It is pleaded in the plaint averments that Hanumantappa Chaluvadi was residing with Shivanna and he got entered his name in the records without notice to plaintiffs. PW-1 in paragraph 5 of the cross-examination admits that brother of plaintiffs, Hanumantappa Chaluvadi died in 1999. -9- RSA No. 5677 of 2010 However, pleads ignorance that defendant Nos.1 to 4 are the legal heirs of deceased Hanumantappa Chaluvadi. PW-2/Rathnamma - plaintiff No.3 has deposed in her cross- examination that defendant Nos.1 to 4 may be the legal heirs of Hanumantappa Chaluvadi. DW-1 in her evidence has spoken about the relationship between the parties to the suit with Shivanna. PW-2 has admitted the signature of plaintiffs and that of her father appearing on the back of Ex.D.1 to Ex.D.3 wherein she admits the status of Hanumantappa Chaluvadi being brother of plaintiffs. Therefore, it is not now open for the plaintiffs to retract from their own admission of Hanumantappa Chaluvadi being their brother. Whether any right has been acquired by virtue of the said document Ex.D.1 to Ex.D.3 is a different matter which requires to be appreciated with other evidence on record. However, the fact remains that plaintiffs have admitted the status of Hanumantappa Chaluvadi being their brother. Therefore, I find no any substance in the contention of the plaintiffs that deceased Hanumantappa Chaluvadi was not the son of Shivanna and defendant Nos.1 to 4 are the wife and children of Hanumantappa Chaluvadi.
13. Indisputably, the plaintiffs are claiming title and possession over the suit property by virtue of registered Will
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RSA No. 5677 of 2010dated 12.12.1990 Ex.P.15 said to have been executed by their father Shivanna. The testator Shivanna died on 25.12.1990. The defendants have denied the due execution and attestation of Will Ex.P.15 in terms of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. Therefore, it is the duty of plaintiffs to prove due execution and attestation of the Will Ex.P.15 in accordance with law by virtue of the evidence placed on record.
14. The trial Court as well as first Appellate Court have held that plaintiffs failed to prove due execution and attestation of the registered Will dated 12.12.1990 Ex.P.15. The following are the suspicious circumstances recorded by both the Courts below regarding due execution and attestation of the registered Will dated 12.12.1990 Ex.P.15.
i) Deceased Shivanna was suffering from
Asthma,
ii) Testator Shivanna died within 9 days from
the date of execution of the Will,
iii) No reasons have been assigned in the Will
to exclude son Hanumantappa Chaluvadi
who is son of testator,
iv) Plaintiffs were present at the time of
execution of Will,
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RSA No. 5677 of 2010
v) Name of testator was not appearing in the
records as on the date of execution of Will,
vi) Execution and attestation of the Will has not been proved,
vii) Will has not seen light of the day for 9 years.
These suspicious circumstances have been appreciated by both the Courts below and recorded finding that due execution and attestation of the Will Ex.P.15 has not been proved by the plaintiffs.
15. The mere registration of the Will dated 12.12.1990 Ex.P.15 cannot by itself will dispel the burden of plaintiffs proving the due execution and attestation of Will in terms of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, when the same has been denied by the contesting defendants.
16. It would be profitable to have Section 63 of the Indian Succession Act for ready reference which reads as follows:
"63. Execution of unprivileged Wills. --
Every testator, not being a soldier employed in an expedition or engaged in actual
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warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
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RSA No. 5677 of 2010The plaintiffs in order to prove the due execution and attestation of the Will rely on the evidence of PW-3 and PW-4 who are the attesting witnesses to the Will Ex.P.15.
17. PW-3 has admitted in his cross-examination that contents of his examination-in-chief was prepared on the instruction of Shivanna Chaluvadi and he has not given any instruction to the learned counsel and he did not know the contents of his examination-in-chief. Further, he has only signed on the examination-in-chief and he was tutored by counsel about the evidence that is required to be given before the Court. PW-3 with regard to due execution and attestation has deposed to the effect that Shivanna asked him to sign on the Will which was already written by Kalabhaga, bond writer. Thereafter, he went in the evening at 4 p.m., and signed on the Will. Shivanna had already signed on the prepared Will and another witness also signed on the Will. PW-3 has further admitted that the Will deed was already written and he do not know at what time it was prepared. The said Will was prepared by Shivanna and his wife. If the above referred admissions of PW-3 are taken into consideration, then it is evident that the testator Shivanna has not executed the Will in his presence and he has not seen the testator signing in his presence. PW-3 also
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RSA No. 5677 of 2010admits that Shivanna was having weakness, plaintiffs Danamma, Rathnamma and Shivamma were present and in their presence only, Ex.P.15 was written. PW-3 has further admitted that Shivanna was suffering from Asthma and he was under the treatment for the last one year.
18. Another attesting witness PW-4 has deposed to the effect that the Will was got prepared and kept in the Sub- Registrar office and thereafter, he went there and signed. PW-4 further states that Shivanna and the bond writer Vivekanand Ullagaddi signed in his presence. This evidence of PW-4 runs contrary to the evidence of PW-3 who is another attesting witness. The evidence of PW-3 never speaks that the testator was present when the Will was prepared and the testator has signed in their presence and the attesting witnesses have seen testator signing on the Will. Therefore, the evidence of PWs-3 and 4 who are the attesting witnesses to the registered Will dated 12.12.1990 Ex.P.15 is not in conformity with the Rules in terms of Section 63 of the Indian Succession Act and as such, the due execution and attestation of the Will has not been proved by the evidence of PWs-3 and 4.
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RSA No. 5677 of 2010
19. Indisputably, testator Shivanna died on 25.12.1990 and the Will in question Ex.P.15 is executed on 12.12.1990. It means that the testator Shivanna died within 13 days from the date of execution of the Will, Ex.P.15. PWs-3 and 4 both have admitted that testator Shivanna was suffering from Asthma and PW-3 deposed to the effect that he was having weakness due to Asthma. Plaintiffs have produced no any evidence to show that testator was in fit condition to execute the Will.
20. The plaintiffs though have denied the status of Hanumantappa Chaluvadi being the son of testator Shivanna, but there is ample evidence on record, the admission of PW-2 and the document Ex.D.1 to Ex.D.3 to show that Hanumantappa Chaluvadi is the son of propositus Shivanna. If at all there was already a partition evidenced under M.E.No.2449 dated 02.04.1987 Ex.P.7 of effecting partition by Shivanna in favour of his own daughters, there was no any occasion for Shivanna to again execute the Will in favour of plaintiffs. If the contention of plaintiffs is to be accepted that there was already partition then it is evident that as on the date of execution of the Will Ex.P.15 dated 12.12.1990 testator Shivanna was having no any property in his name, since under the said partition testator did not retain any property for
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RSA No. 5677 of 2010himself. When the fact of Hanumantappa Chaluvadi being the son of testator is proved by evidence on record then there must be valid reason to exclude Hanumantappa Chaluvadi from being the beneficiary of the Will. The recitals of the Will is totally silent to that effect. The evidence of PW-3 would go to show that plaintiff Danamma, Rathnamma and Shivamma were present at the time of execution of the Will being the beneficiaries under the Will. Therefore, the persuasion of plaintiffs to exclude Hanumantappa Chaluvadi from being beneficiary of the Will cannot be ruled out.
21. The Will Ex.P.15 dated 12.12.1990 would come into effect immediately after the death of testator on 25.12.1990, Ex.P.12 death extract. However, the said Will Ex.P.15 has not seen light of the day for almost 9 years. PW-1 claims that on the death of Hanumantappa Chaluvadi through Village Accountant he came to know about Shivanna executing the Will in favour of plaintiffs. The husband of the 1st defendant Hanumantappa Chaluvadi died on 04.07.1999. PW-1 has not pleaded or offered any explanation as to the occasion of Village Accountant revealing about execution of the Will by Shivanna in favour of plaintiffs. Hence, if the above referred suspicious circumstances surrounding due execution and attestation of the
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RSA No. 5677 of 2010Will are taken into consideration, then it is evident that the due execution and attestation of the Will in terms of Section 63 of the Indian Succession Act has not been proved by the plaintiffs. Therefore, both the Courts below were justified in holding that plaintiffs have failed to prove the due execution and attestation of the Will.
22. The claim of defendants is based on alleged relinquishment of rights by plaintiffs' evidenced under M.E.No.2496 dated 22.04.1988 Ex.P.8. The defendants have claimed that Shivanna effected partition amongst daughters evidenced under M.E.No.2449 dated 02.04.1987 Ex.P.7 by excluding Hanumantappa Chaluvadi son of the propositus. The question is as to whether deceased Hanumantappa Chaluvadi can acquire valid title on oral relinquishment of their right reported to the Village Accountant can confer any valid title. Indisputably, the value of the suit property is more than Rs.100/-. In terms of Section 17 of the Registration Act, any transfer of immovable property, conveyance of title can be effected only by way of a registered document. In this context, it is useful to refer to the judgment of co-ordinate bench of this Court in NAGANNA VS. SHIVANNA (2004 (2) KCCR 813) wherein it has been observed and held that once the parties by
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RSA No. 5677 of 2010oral partition have divided the properties by meets and bounds and put into writing by way of memorandum of partition, the joint character of the property comes to an end and each of the party would become exclusive owner of the share allotted to him. If there is any further transaction of exchange of properties between the parties, it is to be done necessarily by a registered document under Section 17 of the Registration Act. Therefore, in view of the principles enunciated in this decision and the fact that the relinquishment of plaintiffs is by virtue of M.E.No.2496 Ex.P.8, no any valid title can be conveyed to the husband of 1st defendant deceased Hanumantappa Chaluvadi.
23. The plaintiffs are not claiming the relief of declaration and injunction based on the partition dated 02.04.1987 evidenced under M.E.No.2449 Ex.P.7. However, the plaintiffs are claiming their right over the suit property by virtue of the Will dated 12.12.1990 Ex.P.15 and sought for declaration of their right under the Will. In view of the reasons recorded as above, plaintiffs have failed to prove the due execution and attestation of the Will. Therefore, plaintiffs are not entitled for the relief of declaration based on the Will. The defendants have also failed to prove the deceased Hanumantappa Chaluvadi acquired valid title over the suit
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RSA No. 5677 of 2010property in view of relinquishment of right by plaintiffs evidenced under M.E.No.2496 Ex.P.8. Therefore, the status of the suit property as on the date of suit will necessarily be the joint family property of plaintiffs and defendants representing the share of Hanumantappa Chaluvadi.
24. Learned counsel for defendants has vehemently argued that the plaintiffs have approached the Court and the relief has to be granted based on the pleadings and the relief claimed in the suit. The failure of defendants to prove the acquisition of right by deceased Hanumantappa Chaluvadi cannot be a ground to grant the relief to which the plaintiffs are seeking for the relief of declaration. It is for the plaintiffs to seek appropriate relief, if at all they are entitled to seek for partition and no relief of declaration can be granted.
25. When the grant of occupancy right over the suit property to the propositus of the family Shivanna, is not in dispute, on his death naturally the plaintiffs and defendant No.5 representing the branch of Lakshmi, so also their brother Hanumantappa Chaluvadi will have right of share in the suit property. This natural succession was sought to be deviated in view of alleged Will said to have been executed by Shivanna
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RSA No. 5677 of 2010Ex.P.15. In view of the reasons recorded above, it has been observed and held that the Will has not been proved by the plaintiffs and the defendants cannot acquire absolute right by virtue of alleged relinquishment deed as per Ex.P.8. Therefore, under such circumstances, the Court has got every power to mould the relief to which the parties to suit are entitled in exercise of power conferred under Order VII Rule 7 of Code of Civil Procedure.
26. In this context of the matter, a coordinate bench of this Court in IBRAHIM VS. ISMAIL AND ANOTHER (ILR 2008 KAR 1539) based on the earlier two division bench decisions in RANGAPPA VS. JAYAMMA (ILR 1997 KAR 2889) and INDIRA BAI VS. PROF. SHYAMASUNDAR (ILR 1988 KAR 1095) has observed and held that even if the plaintiff sought for the relief of declaration and injunction, under Order VII Rule 7 of CPC, the Court can mould the prayer and grant such other relief though not specifically sought for by the plaintiff, if there is sufficient evidence available on record in that regard and that the Court can go into the substance of the claim in determining the nature of the relief sought for by the plaintiff and can grant appropriate alternative relief, if there is sufficient evidence in that regard and if the same is based on
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RSA No. 5677 of 2010the set of facts and same cause of action, without prejudice to the other side. It has been held further that the appellant may not be entitled to the relief of declaration, but he is definitely entitled to the relief of partition even at the date of presentation of the plaint by the appellant/plaintiff.
27. The co-ordinate bench of this Court in CHINNAWWA VS. YALLAPPA AND OTHERS (2014 (5) KCCR 594) while considering the scope of Order VII Rule 7 CPC permits for granting smaller reliefs to parties. It has been further held that in a suit for declaration of title and for partition, relief of possession could be granted even in the absence of specific prayer for such relief. In the said case, the question under consideration was the relief of declaration and injunction claimed by the plaintiff and the one set up by the defendants with respect to adverse possession based on the relinquishment. It was held that though relief of possession was not asked by the plaintiff and defendants failing to prove adverse possession, the Court by moulding the relief in terms of Order VII Rule 7 of CPC can grant relief of possession. Therefore, in view of the principles enunciated in the above referred decisions, in my opinion, the plaintiffs though have failed to prove their right under the Will and failure of the
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RSA No. 5677 of 2010defendants to establish title by virtue of relinquishment of rights by the plaintiffs, are entitled for the relief of partition by moulding the relief in exercise of power under Order VII Rule 7 of CPC. The substantial questions framed by this Court for the reasons recorded above are answered accordingly. Consequently, proceed to pass the following:
ORDER Appeal filed by appellants/plaintiffs is hereby allowed.
The judgment and decree dated 22.06.2009 passed by the Civil Judge, Sr. Dn. Sirsi, in O.S.No.8/2002, which is confirmed by the Presiding Officer, F.T.C., Sirsi, in R.A.No.415/2009 by judgment dated 16.06.2010 dismissing the suit of plaintiffs outrightly are hereby set aside.
in view of exercising powers under Order VII Rule 7 CPC, the plaintiffs are entitled for partition and separate possession of their 1/5th share each in suit property by way of partition.
Office to draw preliminary decree accordingly.
The registry is directed to transmit the records with the copy of this judgment to trial Court as well as first Appellate Court.
(Sd/-) JUDGE Jm/-