Karnataka High Court
Shri Nagaraj vs Shri Veerabhadraiah on 23 August, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
1
RSA No.822/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
REGULAR SECOND APPEAL NO.822 OF 2015(DEC-INJ)
BETWEEN:
1. SHRI NAGARAJ
S/O VEERABHADRAIAH
AGED ABOUT 43 YEARS
RESIDING AT MADIHALLI
KASABA HOBLI
TIPATUR TALUK,
TUMKUR DISTRICT - 572 201
2. SHRI RAVEESH
S/O VEERABHADRAIAH
AGED ABOUT 41 YEARS
RESIDING AT MADIHALLI
KASABA HOBLI
TIPATUR TALUK
TUMKUR DISTRICT - 572 201 ...APPELLANTS
(BY SHRI K. MAHESHA, ADVOCATE FOR
SHRI RAVISHANKAR, ADVOCATE)
AND:
1. SHRI VEERABHADRAIAH
S/O LATE NINGANNA
AGED 89 YEARS
2. SHRI MAHALINGAPPA
S/O LATE NINGANNA
AGED 79 YEARS
2
RSA No.822/2015
3. SHRI SHIVAIAH
S/O LATE NINGANNA
AGED 69 YEARS
ALL ARE R/O MADIHALLI
KASABA HOBLI
TIPTUR TALUK
TUMKUR DISTRICT - 572 201 ...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.10.2014
PASSED IN REGULAR APPEAL NO.35/2008 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., TIPTUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
26.02.2008 PASSED IN O.S.NO.16/2006 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (JR.DN) AND JMFC., TIPTUR AND
ETC.,
THIS RSA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. Though this appeal is listed for consideration of I.A.No.1/2015 for condonation of delay in filing the appeal, with consent of learned advocates for both the parties, it is taken up for final disposal on merits.
2. This second appeal by plaintiffs is filed challenging concurrent findings of fact recorded by Courts below, assailing the judgment and decree dated 29.10.2014 passed in R.A.No.35/2008 on the file of Senior 3 RSA No.822/2015 Civil Judge and JMFC., Tiptur, dismissing the appeal and confirming the judgment and decree dated 26.02.2008 passed in O.S.No.16/2006 on the file of Additional Civil Judge (Jr.Dn) and JMFC., Tiptur.
3. Heard Shri K. Mahesha, learned advocate appearing for the appellants.
4. For the sake of convenience, parties shall be referred to as per their status before the Trial Court.
5. Briefly stated the facts of the case are, plaintiffs are sons of defendant No.1. They brought the instant suit seeking declaration and injunction in respect of suit property based on a Will dated 24.09.1982 allegedly executed by first defendant's mother Smt. Honnamma.
6. Defendant Nos.2 and 3 are brothers.
Defendant No.1 remained ex-parte before the trial court. Defendants No.2 and 3 entered appearance and filed their separate written statement. Defendant No.2 denied that 4 RSA No.822/2015 the suit schedule property is the absolute property belonging to Smt. Honnamma and contended that defendant No.1 sold one of the suit schedule properties and by suppressing material facts, brought the instant suit.
7. Defendant No.3 in his written statement, contended inter alia that whilst O.S.No.190/1989 was pending, their mother Smt. Honnamma passed away. Subsequently, defendants No.1 and 2 filed an application contending that deceased Smt. Honnamma has executed a Will.
8. Based on the pleadings, trial Court framed four issues and they read as follows:
"1. Whether the plaintiffs prove that suit schedule properties originally belonged to late. Honnamma and as per last Will dated: 04.07.1979 she bequeathed said properties in their favour?
2. Whether the plaintiffs prove that the decree obtained by defendants in O.S.No.190/89 is a collusive decree and not binding on them?5 RSA No.822/2015
3. Whether the plaintiffs prove alleged interference of defendants over suit schedule properties?
4. Whether the plaintiffs are entitle for the relief of declaration and permanent injunction?"
9. Parties went to trial with the aforesaid pleadings and issues. On behalf of the plaintiffs, two witnesses were examined. Plaintiff No.1 was examined as PW.1 and one M.G.Nagaraju, a scribe of alleged Will was examined as PW.2. On their behalf, exhibits P1 to P16 were marked. On behalf of defendants, defendants No.2 and 3 were examined as DWs.1 and 2. On their behalf, exhibits D1 to D22 were marked.
10. Answering issues No.1 to 4 in the negative, the trial court dismissed the suit with costs.
11. On appeal, first appellate Court framed following points for its consideration:
"1. Whether the plaintiffs prove that suit schedule properties originally belonged to late.6 RSA No.822/2015
Honnamma and as per last Will dated: 04.07.1979 she bequeathed said properties in their favour?
2. Whether the plaintiffs prove that the decree obtained by defendants in O.S.No.190/89 is a collusive decree and not binding on them?
3. Whether the plaintiffs prove alleged interference of defendants over suit schedule properties?
4. Whether the plaintiffs are entitle for the relief of declaration and permanent injunction?"
12. Answering points No.1 to 4 in the negative, the first appellate court dismissed the appeal.
13. Shri K Mahesh, learned advocate for the plaintiffs contended that the courts below have not correctly appreciated the evidence on record and that plaintiffs' father did not protect the interest of the plaintiffs in the previous proceedings. Therefore, they were compelled to file the instant suit.
14. Shri Ravishankar, learned advocate for the respondents argued in support of the impugned judgment. 7 RSA No.822/2015
15. I have carefully considered submissions made by learned advocates appearing for the parties and perused the records.
16. On re-appreciation of evidence, the first appellate court has concurred with the view taken by trial court and has recorded a finding that plaintiffs have failed to prove the Will.
17. The facts are not in dispute. Plaintiffs are children of defendant No.1. They are claiming declaration based on a Will executed by their grandmother. Admittedly, there was an earlier Will dated 04.07.1979. Defendant No.2 filed O.S.No.39/1979 which was later re-numbered as O.S.No.190/1989. It is submitted by the learned advocate for the appellants that whilst O.S.No.39/1979 was pending, Smt. Honnamma passed away on 26.06.1984. Subsequently all the defendants entered into a compromise and a decree was passed accordingly. It is relevant to note that instant Will came into existence after O.S.No.39/1979 was instituted. 8 RSA No.822/2015
18. The trial court has recorded a finding that the court while passing an order dated 05.12.1985 as per exhibit D9, in O.S.No.190/1989 (previous O.S.No.39/1979), has observed that defendant No.1 has taken active participation in execution of the Will. Interestingly, he has remained ex-parte in the present proceedings.
19. The court has further noted that the Will dated 24.09.1982 does not refer to the earlier Will dated 04.07.1979 and there is no explanation as to why there was necessity for a subsequent Will. The trial court has thus recorded that the Will was 'not proved' even in the previous proceedings and that the said finding has attained finality as it was not challenged by defendant No.1. In the instant suit also, no attempt was made by the plaintiffs to prove execution of Will by examining the witnesses. Thus, the Will in question has been held as 'not proved' in two different proceedings.
9RSA No.822/2015
20. In the circumstances, no exception can be taken to the findings recorded by the courts below.
21. There is a delay of 93 days in preferring this appeal. The appeal having been considered on merits and there being no error in the judgments of both the Courts below, the application for condonation of delay is dismissed. Consequently, the appeal is, also, dismissed.
No costs.
Sd/-
JUDGE AV