Karnataka High Court
Shri.Ramappa S/O Gangappa Chamoji vs Smt.Sharada W/O Rahut Yalaganti on 24 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.100279 OF 2019 (DEC & INJ)
BETWEEN
1. SHRI.RAMAPPA S/O GANGAPPA CHAMOJI
AGE: 51 YEARS, OCC: AGRICULTURE
R/O KAVATAGI, TALUK: JAMKHANDI,
DIST BAGALKOT.
2. PARAPPA S/O GANGAPPA CHAMOJI
AGE 41 YEARS, OCC: AGRICULTURE
R/O KAVATAGI, TQ: JAMKHANDI
DIST: BAGALKOT.
...APPELLANTS
(BY SRI SHIVARAJ P MUDHOL, ADVOCATE)
AND
SMT.SHARADA W/O RAHUT YALAGANTI
AGE: 44 YEARS, OCC: HOUSE HOLD WORK,
R/O PLOT NO. 2, KALIDAS NAGAR
NEAR SAINT ANTHONI SCHOOL
VIDYANAGAR, HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD, PIN: 580021
...RESPONDENT
(BY SRI. G. R. GURUMATH, SR. COUNSEL FOR
SRI. MALLIKARJUNSWAMY B HIREMATH, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 23.01.2019 IN R.A.NO.15/2014 PASSED BY THE I-
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT SITTING
AT JAMAKHANDI AND THE JUDGMENT AND DECREE DATED
30.10.2013 IN O.S.NO.3/2008 PASSED BY THE ADDITIONAL
SENIOR CIVIL JUDGE, JAMAKHANDI AND DECREE THE SUIT FILED
BY THE PLAINTIFFS BY ALLOWING THIS APPEAL IN THE INTEREST
OF JUSTICE AND EQUITY.
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THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned regular second appeal is filed by unsuccessful plaintiffs questioning the judgment and decree passed by both the Courts below wherein suit filed by the plaintiffs seeking relief of declaration based on relinquishment deed dated 16.11.1995 is dismissed and confirmed by the First Appellate Court.
2. The facts leading to the case are as under:
The appellants-plaintiffs filed a suit in O.S.No.3/2008 seeking relief of declaration by specifically contending that one Eravva has relinquished her right over the suit land. On the basis of relinquishment and consent letter dated 16.11.1995, the appellants-plaintiffs are asserting and claiming that they are in lawful possession over the suit property by virtue of relinquishment deed dated 16.11.1995 executed by 3 Smt.Eravva. The appellants-plaintiffs also claimed the respondent-defendant has created a false and bogus Will deed and on the basis of said disputed will have started interfering with appellants'-plaintiffs' possession. The appellant-plaintiff also claimed that they are the legal heir of deceased Eravva. On these set of pleadings, filed a suit for declaration and injunction in O.S.No.3/2008.
3. On receipt of summons, respondent-defendant contested the proceedings by filing written statement. The respondent-defendant stoutly denied the entire averments made in the plaint. The respondent-defendant contention was the suit land is not joint family ancestral property of appellants-plaintiffs and Sagareppa. The respondent-defendant contended that after death of Eravva's husband, she inherited the property as widow. They seriously disputed the alleged relinquishment deed set up by the appellants-plaintiffs. The respondent- defendant contended that Eravva was the exclusive 4 owner and she was in exclusive possession. Respondent- defendant has taken a specific contention in the written statement that Eravva-testator was residing with her from 1995 till her death. It was further specifically pleaded that out of love and affection, Eravva bequeathed her properties on the basis of Will dated 06.01.2003. It was also contended that after death of Eravva, defendant's name not mutated in the revenue records in respect of the suit land. On these set of defences, respondent-defendant sought for dismissal of the suit.
4. Based on rival contentions, the Trial Court formulated issues. The appellants-plaintiffs to substantiate their claim examined plaintiff No.1 as PW.1 and examined in all eight witnesses on their behalf as PWs.2 to 9. To corroborate their case, the appellants- plaintiffs adduced documentary evidence vide Ex.P.1 to P.23.
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5. By way of rebuttal evidence, the respondent- defendant examined her husband as DW.1 and examined two independent witnesses and relied on rebuttal documentary evidence vide Exs.D.1 to D.9.
6. The Trial Court having assessed ocular and documentary evidence answered Issue Nos.1 & 2 in the negative and Issue Nos.3 in the affirmative. While examining the cross-examination of PW.1, the Trial Court has recorded a categorical finding that the alleged relinquishment deed/consent letter dated 16.11.1995 vide Ex.P.2 is not at all admissible in evidence. The Trial Court has come to conclusion that Ex.P.2 is inadmissible in evidence for want of registration under Section 17(1)(b) of Indian Registration Act. The Trial Court has come to conclusion that since the relinquishment deed vide Ex.P.2 is an unregistered, no right and title would flow in favour of appellants-plaintiffs. On these set of reasonings, the Trial Court has rejected the claim set up 6 by appellants-plaintiffs based on an unregistered document and has answered Issue No.1 in the negative. Having answered Issue No.1 in the negative, the Trial Court having meticulously bestowed its consideration on Ex.P.2 has also found that there is absolutely no independent evidence to indicate that deceased Iravva during her life time has inducted the appellants-plaintiffs in possession. Therefore, the Trial Court was of the view that, if the appellants-plaintiffs have failed to establish their right and title, consequently they cannot assert and claim that they are in lawful possession. On these set of reasonings, Issue Nos.1 & 2 were answered against appellants-plaintiffs.
7. While examining Issue No.3, the Trial Court has given its anxious consideration to the evidence on record. Respondent-defendant to establish the due execution of Will has examined the scribe as DW.2 and an attesting witness as DW.3.
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8. Having meticulously examined the ocular evidence of attesting witness as well as the ocular evidence of scribe, has recorded a categorical finding that the Will set by respondent is free from suspicious circumstances and the profounder of the Will has succeeded in placing satisfactory material and therefore its genuinity is proved by leading cogent and clinching evidence. On these set of reasonings, Issue No.3 is answered in the affirmative. Consequently, the suit filed by the appellants-plaintiffs is dismissed.
9. Feeling aggrieved by the judgment and decree of the Trial Court, the present appellants-plaintiffs preferred an appeal before the First Appellate Court. The First Appellate Court having independently assessed ocular and documentary evidence has also concurred with the findings of the Trial Court insofar as the admissibility of Ex.P.2 is concerned. On reassessing the evidence on record, the First Appellate Court has also come to 8 conclusion that Ex.P.2 being unregistered document cannot be looked into and the same is inadmissible in evidence. The First Appellate Court having perused the material on record has also held that during her fag end of her life, testator-Eravva was in fact under the care and custody of respondent-defendant. The Appellate Court has also come to conclusion that the rebuttal evidence would clearly indicate that Eravva was in fact looked after by respondent-defendant and she died at Hubli. All these relevant and significant details according to First Appellate Court would lead to a conclusion that the Will executed by Eravva was out of her free will and it was executed voluntarily out of love and affection. It is in this background, the First Appellate Court found that the Will set up by respondent-defendant is not shrouded with any suspicious circumstances. On the contrary the First Appellate Court found that the material placed on record by legatee would in fact clearly prove the due execution 9 of Will. On these set of reasonings, the First Appellate Court has proceeded to dismiss the appeal. It is against this concurrent finding, unsuccessful plaintiffs are before this Court.
10. Learned counsel appearing for the appellants- plaintiffs would vehemently argue and contend before this Court that the concurrent finding recorded by the Courts below on Will suffers from serious perversity. He would argue and contend before this Court that in absence of relief of declaration, both the Courts erred in declaring respondent-defendant has succeeded to the suit schedule property based on Will.
11. To buttress his argument on possession, the learned counsel appearing for the appellants-plaintiffs would place reliance on Ex.P.2, which is relinquishment deed dated 16.11.1995. Taking this Court through recitals in the said document, he would submit to this 10 Court that the recitals clearly indicate that Eravva parted the possession and delivered the possession in favour of appellants-plaintiffs. He would further submit to this Court that the Trial Court having regard to the rival contentions of the parties in regard to possession directed the jurisdictional Circle Police Inspector to submit a report, after spot inspection. He would submit that report, clearly indicates that the appellants-plaintiffs were in lawful possession. Placing reliance on the photographs produced through PW.8, he would also submit to this Court that it is the appellants-plaintiffs who are in lawful possession over the suit property. He would bank heavily on ocular evidence PWs.2 to 7. He would submit to this Court that these witnesses are adjoining owners and all have stated categorically that it is appellants-plaintiffs who are in lawful possession over the suit schedule property. To further strengthen his hand, learned counsel for appellants-plaintiffs would take this Court to the 11 findings recorded by the Division Bench of this Court in W.A.Nos.100229-100230/2016 (GM-Police) C/w W.A.Nos.100231-100232/206. Taking this Court through paragraph Nos.25 & 26, he would submit to this Court that the Division Bench of this Court has taken cognizance of the Will set up by respondent. Placing reliance on the observations made by the Division Bench of this Court at paragraph No.25, he would submit this Court that the Division Bench has observed that there is absolutely no whisper by the present respondent- defendant in regard to their possession over the disputed property. The Division Bench has also taken cognizance of the fact that the applications filed seeking interim injunction was also rejected. Reiterating the grounds urged in the second appeal, he would submit to this Court that the concurrent finding recorded by the Courts below on Issue No.3 declaring the respondent-defendant as owner on the basis of Will suffers from perversity. He 12 would further contend that the concurrent finding recorded by the Courts below in regard to possession is contrary to clinching evidence led in by appellants- plaintiffs.
12. Per contra, Sri G.R.Gurumath, learned Senior Counsel for Sri Mallikarjunswamy B.Hiremath appearing for the respondent-defendant repelling the contentions canvassed by the learned counsel appearing for counsel appearing for the appellants-plaintiffs would submit to this Court that, insofar as Will is concerned, both the Courts have concurrently held that the due execution of Will is proved and the respondent-defendant has succeeded in proving the Will and has removed all suspicious circumstances by placing on record cogent and clinching evidence. While countering the contention of learned counsel for the appellants-plaintiffs that in absence of relief of declaration Courts could not have adjudicated the rights of the respondent-defendant under 13 the Will, he would submit to this Court that no such relief is required to be prayed for. He would submit to this Court that it is the appellants-plaintiffs who have approached the Court by filing comprehensive suit seeking relief of declaration based on a relinquishment deed. As a counter to the plaintiffs' case, the respondent- defendant to defend her claim has relied on the Will by way of rebuttal evidence and issue is framed to that effect and in terms of an issue, the respondent-defendant has led in evidence in proof of Will in terms of Section 63
(c) of the Indian Succession Act read with Section 68 of Indian Evidence Act.
13. To counter the learned counsel appearing for the appellant on possession, he would also placed reliance on paragraph No.30 of the judgment rendered by the Division Bench of this Court in W.A.Nos.100229- 100230/2016 (GM-Police) C/w W.A.Nos.100231- 100232/206. Referring to paragraph No.30, he would 14 submit to this Court that the Division Bench of this Court while dealing with the disputed question of possession has left open to be decided by the competent civil Court. Therefore, he would submit to this Court that the appellant cannot conveniently placed selective reliance on the preceeding paragraphs without reading the subsequent paragraphs of the Division Bench judgment.
14. He would conclude his arguments by contending that the appellants-plaintiffs having failed to establish their title and having suffered concurrent judgments at the hands of the Courts below cannot re- agitate on disputed question of fact under Section 100 of the Code of Civil Procedure, 1908 and therefore, he would request this Court to dismiss the appeal.
15. Heard learned counsel appearing for the appellant and learned Senior Counsel for the counsel appearing for the respondent-defendant and perused the 15 judgments under challenge. I have also given my anxious consideration to the list of documents which are placed on record by learned counsel appearing for the appellant.
16. The appellants are asserting title over the suit schedule property based on relinquishment deed executed by Eravva as per Ex.P.2 dated 16.11.1995. Therefore, the entire case of the appellant is based on the suit document which is a relinquishment deed. The short question that would arise for consideration before this Court is, as to whether there is valid transfer of right and title based on the relinquishment deed dated 16.11.1995. Admittedly it is an unregistered document. Therefore, it is inadmissible in evidence. Both the Courts have rightly declined to examine the title of appellant-plaintiff in context of the relinquishment deed dated 16.11.1995. If the said document is inadmissible in evidence, it is a trite law that consequence would follow. If right and title has not flown under an unregistered document, then I am of 16 the view that both the Courts were justified in declining to grant relief of declaration in favour of appellants- plaintiffs based on an unregistered relinquishment deed. If relief of declaration is declined, then there is absolutely no evidence indicating that the appellants-plaintiffs are in lawful possession of suit schedule property dehors relinquishment deed. The appellants-plaintiffs have also failed to produce any other document indicating that Eravva did deliver possession of the suit schedule property.
17. Both the courts have meticulously examined the averments made in the plaint. The alleged recitals in the relinquishment deed, ocular evidence more particularly cross-examination, PW.1 has admitted in unequivocal terms that it was the intention of Eravva to give effect to this relinquishment deed only after her death. This necessarily infers that Eravva never parted with possession. If Eravva did not deliver possession 17 pursuant to the alleged unregistered document dated 16.11.1995, there is absolutely no evidence forthcoming from the records as to how appellants-plaintiffs were put in possession. To claim perpetual injunction, a party approaching the Court has to demonstrate as to how he acquired possession. Even possessory rights are to be proved in accordance with law and the source of delivery of possession has to be proved by producing independent evidence. If the disputed relinquishment deed is taken off, there is absolutely no evidence indicating as to how the appellants-plaintiffs were put in possession.
18. Both the Courts have concurrently held that the appellants-plaintiffs have failed to prove this lawful possession as on the date of filing of the suit. This concurrent finding arrived at by the Courts below in regard to possession is based on the clinching rebuttal evidence adduced by respondent-defendant and also in 18 absence of clinching evidence adduced by the appellants- plaintiffs in regard to possession.
19. Insofar as finding on Will is concerned, both the Courts have meticulously examined the material on record in a proof of Will. The Courts are bound to take note of the surrounding circumstances and are also required to find the background under which the bequeath is made. In the present case on hand, it has come on record that Eravva was in the care and custody of respondent-defendant. She was admittedly residing at Hubballi and she died at Hubballi in an hospital. It has come in evidence that she was looked after by respondent-defendant and her husband. The testamentary succession in the present case on hand is towards her parental lineage. Bequeath, therefore appears to be natural. The appellants-plaintiffs assert that they are the coparceners and on account of death of Sagareppa and Eravva intestate, they claim that it would 19 revert back. Eravva admittedly was represented the branch of Sagareppa. Therefore, it was well within her power or authority as an absolute owner to bequeath this land to her brother's daughter. Therefore even at first instance merely because there is bequeath that would not raise any strong suspicion on account of testamentary arrangement. Even otherwise the respondent-defendant by producing clinching evidence has succeeded in removing all suspicious circumstances. She has examined the scribe who has drafted the Will. Incidentally the scribe appears to be an advocate and he has specifically deposed at the instruction of the testator, the Will came to be drafted. The due execution of Will and her intention to bequeath the property is also proved by examining the attesting witness who has withstood the test of cross- examination and his ocular evidence on oath would satisfy the ingredients of Section 63(c) of the Indian Succession Act.
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20. The concurrent finding recorded by the Courts below on Issue Nos.3 is based on legal evidence and therefore would not warrant any interference. The appreciation of evidence of scribe and witness in regard to the due execution of Will cannot be tested and reassessed by this Court under Section 100 of the Code of Civil Procedure, 1908, such a recourse is impermissible under law.
21. In that view of the matter, I do not find any substantial question of law involved in the case. Accordingly, the appeal stands dismissed.
22. In view of the disposal of the appeal, pending applications, if any, do not survive for consideration and accordingly disposed off.
Sd/-
JUDGE YAN/EM