Karnataka High Court
Smt Basalingamma W/O Vishwanath Sunkad vs Smt Chandravva W/O Basappa Kalaburagi & ... on 26 February, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
RSA NO.200083/2017
BETWEEN:
Smt. Basalingamma
W/o Vishwanath Sunkad
Aged about 57 years
Occ: Household Work
R/o Guttargi, Tq: Sindagi
Dist: Vijayapur
... Appellant
(By Sri I.R.Biradar, Advocate)
AND:
1. Smt. Chandrawwa
W/o Basappa Kalaburgi
Age: 81 years, Occ: Household Work
2. Sri Ashok S/o Basappa Kalaburagi
Age: 49 years, Occ: Agri.
R/o. Guttargi, Tq: Sindagi
Dist: Vijayapur-586101
... Respondents
(Service of notice to the respondents is held sufficient)
This RSA filed under Section 100 of CPC praying to
allow the appeal and to set aside the judgment and decree
2
dated 01.12.2016 passed by the learned Senior Civil Judge
and JMFC at Sindgi in R.A.No.3/2012 dismissing the appeal
and confirming the judgment and decree dated 10.11.2011
passed by the learned Civil Judge and JMFC at Sindgi in
O.S.No.365/2010 in the interest of justice and equity.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
The unsuccessful defendant is before this Court against the judgment and decree dated 01.12.2016 made in R.A.No.3/2012 on the file of the Senior Civil Judge and JMFC, Sindagi dismissing the appeal by confirming the judgment and decree dated 10.11.2011 made in O.S.No.365/2010 on the file of the Civil Judge and JMFC, Sindagi decreeing the suit of the plaintiffs declaring that the plaintiffs are the owners of suit land bearing R.S.No.48 measuring 6 acres 30 guntas of Guttaragi village, Sindagi taluk and for permanent injunction restringing the defendant from causing obstruction to the possession and enjoyment of the suit property.
3
2. Brief facts of the case:
The respondents who are the plaintiffs before the Trial Court filed a suit for declaration and for permanent injunction and also sought alternative relief of possession contending that plaintiff No.1 is the wife and plaintiff No.2 is the son of Basappa S/o Malleshappa Kalaburgi and suit schedule property belongs to him who died on 17.11.2005 at Guttaragi village leaving behind him only the plaintiffs as his legal heirs. After the death of said Basappa, the plaintiffs became the owners in possession and enjoyment of the suit property. It was further stated that during the life time of Basappa, he had kept the plaintiffs at Vijayapur who are also earning members by doing coolie work. He also engaged one Mudigouda S/o Basavantray Sunkar for cultivating the land and to look after the same on coolie basis. After the death of Basappa, the plaintiffs continued to cultivate the same and said Mudigouda 4 was giving portion of yield of the land to the plaintiffs and retaining remaining portion as his coolie charges. In the month of June, 2010, when the plaintiffs visited the land for carrying out the agricultural operations, one Smt. Basalingamma Sunkar of Guttargi village came to the suit land along with her fellow men and she claimed that she is the owner of the suit land and she will not allow the plaintiffs to enter the suit property. After enquiry, the plaintiffs were shocked and perused the revenue records i.e., Vardi, partition deed, 'U' form and mutation entry. The said documents are sham documents, which are created by the defendant in order to engulf the suit property. The defendant is no way concerned to the family of the deceased Basappa Kalaburgi and she has no kind of right, title and interest in the suit property and the suit land was self acquired property of the deceased Basappa, etc. Therefore, the suit was filed for the relief sought for. 5
3. Though the defendant has appeared through her counsel but has not filed her written statement.
4. Based on the pleadings of the plaint, the Trial Court framed the following issues:
1. Whether plaintiffs prove that they are owners in possession and enjoyment of suit property?
2. Whether plaintiffs prove that defendant has created false and concocted documents and got mutated her name and said mutations are not binding upon her?
3. Whether plaintiffs prove that defendant is causing obstruction to the peaceful possession and enjoyment of suit property?
4. Whether plaintiffs are entitled to the reliefs as prayed in the plaint?
5. What order or decree?6
5. In order to substantiate the plaintiffs' case, plaintiff No.1 was examined himself as PW.1 and one Mudigoudappa B. Sunkad as PW.2 and got marked the documents Exs.P.1 to P.12. The defendant has not examined any witness nor produced any documents.
6. The Trial Court considering the entire material on record decreed the suit of the plaintiffs for declaration and for permanent injunction declaring that the plaintiffs are the owners of the suit land.
7. Aggrieved by the said judgment and decree, the defendant filed an appeal in R.A.No.3/2012 before the Senior Civil Judge & JMFC, Sindagi who after hearing both the parties, by the impugned judgment and decree dated 01.12.2016 dismissed the appeal.
8. Being aggrieved by the concurrent findings on facts recorded by the Courts below, did not deter the appellant from preferring this regular second appeal as a last ditch attempt.
7
9. I have heard the learned counsel for appellant.
10. Sri G.G.Chagashetti, learned counsel for the appellant vehemently contended that the impugned judgment and decree passed by of the Courts below granting declaration and injunction in respect of suit property is without any basis. He would further contended that both the Courts have not considered the material documents Exs.P1 to P4 and proceeded to decree the suit. The said judgment and decree are liable to be set aside for non-consideration of material documents. He would further contended that both Courts below have failed to notice that there was no proper opportunity was given to the defendant to file her written statement. He further contended that Ex.P5 - Vardi submitted by the defendant clearly depicts that the defendant was in possession and enjoyment of the 8 suit property. Therefore, he sought to set aside the judgment and decree of the Courts below.
11. Having heard the learned counsel for the appellant, it is an undisputed fact that the plaintiffs are the wife and son of deceased Basappa and admittedly, the suit property belongs to him. According to learned counsel for the plaintiffs, after the death of Basappa, the plaintiffs being his legal heirs cultivating the land through one Mudigouda B. Sunkad who examined as PW.2. Plaintiff No.1 examined as PW.1 has reiterated the averments made in the plaint and to prove the ownership, they have produced Exs.P1 to P12 apart from oral evidence of PWs.1 and 2.
12. The trial Court considering the oral and documentary evidence on record recorded a finding that the plaintiffs have proved that they are the owners in possession and enjoyment of suit property. They also proved that the defendant has created a false and 9 concocted documents and got mutated her name in the revenue records and said mutations are not binding upon her and also proved that the defendant is causing obstruction to the peaceful possession and enjoyment of suit property. Hence, they are entitled for declaration and injunction. The Trial Court further held that the deceased Basappa is the owner of the suit property as per the order passed by the Tahsildar, Sindagi in KLR/SR186 and his name was appeared in the ROR till the year 1990. As per the documentary evidence on record, the name of the defendant came to be entered as daughter of deceased Basappa on the basis of alleged Vardi. The said Vardi was submitted on 12.12.1995 and partition deed was prepared on 14.12.1995 and 'U' form was issued on 12.12.1995. In case, the deceased relinquished his right in the suit property by partition on 14.12.1995, Vardi was to be submitted on the subsequent dates. But, Vardi was submitted on 10 12.12.1995 which was prior to partition deed and 'U' form was issued on 12.12.1995.
13. The Trial Court further recorded a finding that the defendant has got entered her name in respect of suit property on the basis of false and concocted documents and those documents will not create any title in favour of the defendant and she is not owner of the suit property. The plaintiffs being the legal heirs of deceased Basappa only entitled to succeed to the suit property and they are owners in possession and enjoyment of suit property. Though, the defendant has appeared through her counsel, she neither filed any written statement nor led her evidence. Hence, the oral and documentary evidence of the plaintiffs remained unchallenged.
14. Though the learned counsel for the appellant submits that the appellant has taken a specific contention before the first appellate Court, the Trial 11 Court has rejected her application for filing the written statement. He also contended that Exs.P1 to P7 have not considered by the Courts below cannot be accepted for the simple reason that admittedly, the defendant has not filed any written statement nor adduced any contra evidence and nor cross examined PWs.1 and 2.
15. It is not in dispute that the plaintiffs are the legal heirs of deceased Basappa and the same is not disputed by the defendant. The only dispute is that Vardi was submitted by the defendant and therefore she is entitled for ownership of the suit property. The lower appellate Court considering the entire material on record has recorded a finding that the defendant has appeared before the Trial Court but has not filed written statement in spite of ample opportunity given to her to file the written statement. In fact, application - I.A.II filed by the defendant for filing written statement rejected by the Trial Court on 28.02.2011 and the same 12 has reached finality. The lower appellate Court further recorded a finding that the Trial Court has perused that it has given ample opportunities to the defendant to file her written statement, which was not availed by her. The record does not reveal any such attempt made by the defendant to show good cause in order to accept the written statement beyond the stipulated time. The defendant has not substantiated the delay caused and the compelling circumstances which prevented her from filing the written statement in time.
16. Both the Courts below concurrently held that the plaintiffs are the legal heirs of deceased Basappa and they have proved the ownership based on the oral evidence of PWs.1 and 2 and material documents Exs.P1 to P12. Ex.P5 - Vardi was submitted on 12.12.1995 by the defendant and even though the alleged partition was taken on 14.12.1995, no documents were produced nor adduced any contra 13 materials by the defendant to disprove the case of the plaintiffs. Such a finding on facts recorded by the Courts below is based on the legal evidence on record. The appellant has not made out any substantial question of law in the present appeal to interfere with the impugned judgment and decree of the Courts below by exercising the power of this Court under Section 100 of the Civil Procedure Code.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE Srt