Mahadevi vs Nagaraj

B. Veerappa, J.—This is an unsuccessful plaintiff''s Regular Second Appeal against the judgment and decree dated 26.07.2014 made in R.A. No. 2/2012 on the file of the Senior Civil Judge, Bailhongal, confirming the judgment and decree dated 26.11.1998 made in O.S. No. 64/1993 on the file of the Principal Civil Judge (Jr. Dn.), Bailhongal, declaring that the defendant is not legally wedded wife of the plaintiff and there is no relationship between the plaintiff and defendant and granted permanent injunction restraining from claiming and posing herself as wife of the plaintiff and adopting the name of the plaintiff as her husband for any purpose.

It is the case of the plaintiff that he is a permanent resident of Vannur and formerly he was serving as a Teacher in Education Department and after attending the superannuation retired from the service in the year 1980 and he had married on Basalingavva daughter of Channappa Gurannaver of Sanikop Village in the year 1955 at Bailwed Varti and they have led marital life as husband and wife and they discharging their matrimonial relationship. The plaintiff comes from a respectable family and he had possessed property and the wife of the plaintiff is taking care of the plaintiff during his old age. The people of the entire village are known that the plaintiff is the husband of Smt. Basalingavva and they are husband and wife. The defendant who is the resident of Vannur Village has given in marriage to a person of Naganur and her husband is a resident of Hossur village and the defendant is legally wedded wife of her husband Rudrappa Dharnappgol of Naganur Village. The defendant was not having good character leading matrimonial life out of her marital life she has given birth to her child in the year 1991 and there is no relationship in between the plaintiff and defendant in any manner and the child is not born for the plaintiff and defendant at the instigation of ill-wishers of the plaintiff claiming to be the wife of the plaintiff filed an appeal before the Commissioner, Bailhongal in RTS/AP 184/92-93 styling herself as wife of the plaintiff Defendant is not the wife of the plaintiff. She is falsely claiming to be the wife of the plaintiff and no rights over the properties of the plaintiff. Therefore, plaintiff constrained to institute the present suit against the defendant for declaration to declare that the defendant is not the legally wedded wife of the plaintiff and for consequential relief of injunction from claiming and possession herself as the wife of the plaintiff and adopting the name of the plaintiff as her husband.

The defendant filed written statement denied the plaint averments and admitted that plaintiff is permanent resident of Vannur and retired from service and she is resident of Vannur Village and denied the alleged marriage between plaintiff and Basalingavva in the year 1955 and contended that she is the first legally wedded wife of the plaintiff and her marriage was solemnized at Vannur Village, Basavanna temple as per their customs and rituals about five years back in the presence of the elders. She is coming from the poor family and their marriage was solemnized in a simple manner and after marriage, defendant went to the house of the plaintiff to lead marital life and out of their marital relationship, she delivered a male child and the plaintiff and defendant discharged their matrimonial relationship. The plaintiff is a simple tone and innocent man and he is hearing to the advise of others and at the instance of ill-wishers of the defendant, he has filed false suit etc. Therefore, she prayed for dismissal of the suit.

Based on the pleadings, the Trial Court framed the following issues.

"1. Does deft prove that she is legally wedded wife of plff?

Does plff prove that deft has no right to adopt his name as his wife?

Whether the plff is entitled for the relief of declaration and injunction?

What order or decree?"

In order to establish his case, the plaintiff examined as P.W.1 and marked documents Exs.P-1 to P-4. Defendant has not adduced any evidence and she has filed memo stating that she has no evidence and she has no objection for decreeing the suit of the plaintiff. The Trial Court considering the entire material on record has recorded a finding that the defendant failed to prove she is the legally wedded wife of the plaintiff and she has no right to adopt plaintiff name as his wife and accordingly, the Trial Court decreed the suit.

Aggrieved by the said judgment and decree, the defendants filed appeal in R.A. No. 2/2012 on the file of the Senior Civil Judge, Bailhongal, who after hearing both the parties by its impugned judgment and decree dated 26.07.2014 dismissed the appeal both on merits as well as on the ground of delay and latches of 13 years in filing the appeal. Against the said judgment and decree, the present regular second appeal is filed.

I have heard the learned counsel for the appellant.

Shri Jagadish Patil, learned counsel for the appellant has contended that the impugned judgment and decree passed by both the Courts below are contrary to the records and contrary to law and the same cannot be sustained. Both the Courts below have not appreciated the fact that out of the marital relationship between the plaintiff and defendant, a male child was born by name Nagaraj. The birth and death certificate produced along with the appeal clearly indicates that the defendant is the wife of plaintiff Said aspect has not been considered by the Courts below and therefore, sought to set aside the impugned judgement and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record. The plaintiff filed suit for declaration to declare that the defendant is not his wife and she should not use his name for any other purpose.

In order to prove his case, plaintiff examined as P.W.1 and produced documents as Exs.P-1 to P-4. Defendant has not adduced any evidence nor cross-examined the plaintiff and filed memo stating that she has no evidence and she has no objection to decree the suit.

Plaintiff produced Ex.P-1 which is the Namuna No. 8 which is the name of Basalingavva Kom Shivalingappa Shebannavar. It is described that Smt. Basalingavva is the wife of plaintiff Earlier the property was in the name of Basalingavva came to be entered subsequently. Ex.P-2 is the appeal filed before the Assistant Commissioner, wherein the present defendant claimed to be the wife of plaintiff. Ex.P-3 voter list of 1998 and the name of the plaintiff appears at Sl. No. 272. At Sl. No. 273 the name of Smt. Basalingavva is appearing as wife of present plaintiff. The age of the plaintiff described as 61 years and his wife Smt. Basalingavva is shown as 50 years during the year 1988 and they are residing together in the house No. 263 of Vannur Village. The name of the defendant is not at all appearing in the said record. Ex.P-4 is the original sale deed in R.S. No. 417/4/2 dated 09.04.1981. As per the said sale deed, the property purchased in the name of Basalingavva wife of Shivalingappa Shebennavar and age was described as 36 years. The said document clearly depicts that Smt. Basalingavva is the wife and she has married long back.

Ex.P.5 is the agreement of sale in the name of Smt. Basalingavva as wife of the present plaintiff Ex.P.6 is the certificate issued by the Chairman Gram Seva Sahakari Sangh. Smt. Basalingavva is not the member of the Society an there is no due from her to the society. Ex.P.7 is the Namuna No. 8(a) in the name of Smt. Basalingavva, Ex.P.8 is the certificate issued by the Village Accountant in the name of Smt. Basalingavva as wife of the plaintiff Ex.P.9 is the record of rights of R.S. No. 417/4/2 in the name of Smt. Basalingavva. Ex.P.10 is the receipt for having paid the interest and loan by Smt. Basalingavva, Ex.P.11 and Ex.P.12 are receipts of society in the name of Smt. Basalingavva. Ex.P.13 is the marriage card wherein the name of plaintiff and his wife Smt. Basalingavva is appearing as husband and wife. Ex.P.14 is the electoral card in the name of plaintiff and his wife Smt. Basalingavva, Plaintiff has also produced the copy of the pension order. The documents of the plaintiff are admitted by the defendant. When the documents of plaintiff are not at all challenged in any manner, the said documents have to be accepted to prove that plaintiff has got a legally wedded wife by name Smt. Basalingavva.

The defendant who is claiming to be the wife of plaintiff has not entered the witness box and no evidence is adduced. After completion of evidence of plaintiff, defendant has admitted the claim of the plaintiff before the Court. Therefore, the defendant has failed to prove that she is the legally wedded wife of the plaintiff. Therefore, she is not entitled to use the plaintiff''s name as her husband and the plaintiff has successfully proved that he has married one Basalingavva long back and they are husband and wife. Accordingly, the suit came to be decreed against the defendant holding that, defendant is not the legally wedded wife of plaintiff and there is no relationship of husband and wife between the plaintiff and defendant and the defendant is restrained from claiming and posing herself as wife of the plaintiff and adopting the name of the plaintiff as her husband for any purpose.

On re-appreciating the entire material on record, the lower appellate court dismissed the appeal on the ground of delay and latches, as well as, on merits and recorded a finding that, it is admitted that the present appellant/defendant engaged the assistance of a Counsel by name Sri. R.A. Patil in the trial Court and further stated that in the first week of December, 2012, she came to know that the suit was decreed on the statement made by defendant that she has no objection for decreeing the suit.

The appellant/defendant was examined as P.W.1 before the appellate Court to substantiate the contention taken in I.A.II and she reiterated the averments made in the affidavit. In the cross-examination she has admitted that she herself has given application for obtaining the certified copy of the judgment and decree about ten years ago. She further admitted that she knew very well about the death of original plaintiff Shivalingappa Nagappa Shebannavar on 30.12.1998 at Vannur village. The said evidence of PW.1 is contrary to the admission made in the cross examination about disposal of O.S.64/1993. If really the defendant is aggrieved by the judgment and decree, definitely she would have questioned the same immediately after the death of original plaintiff Shivalingappa Nagappa Shebannavar. But no such attempt is made and no satisfactory reasons have been assigned. Except the oral evidence of the appellant, the appellant has not chosen to examine her advocate Sri. R.A. Patil to substantiate the cause of inordinate delay of 13 years in filing the appeal.

The appellate court has observed that though the defendant had filed no objection memo before the Trial Court, the Court has not simply decreed the suit but on the other hand, the trial court has examined the documentary evidence produced by the plaintiff and arrived at a conclusion that the defendant is not the legally wedded wife of the plaintiff and she has no right to adopt the name of the plaintiff and ultimately decreed the suit as prayed. Therefore, the appellant has not made out any sufficient ground to condone the inordinate delay of 13 years in filing and there is no case made out even on merits. Accordingly, the appeal came to be dismissed.

The plaintiff filed the suit against the appellant/defendant for declaration that defendant is not the wife of the plaintiff and he has married one Basalingavva in the year 1955. To substantiate his case he has produced material documents as Ex.P.1 to P.14 and examined himself as PW.1. The documents are not disputed by the defendant. The defendant has not adduced any evidence on her behalf and in fact, she has filed a Memo stating that she has no evidence and no objection to decree the suit. Both the courts below based on the oral and documentary evidence have concurrently recorded a finding of fact that, defendant has failed to prove that she is the legally wedded wife of the plaintiff and plaintiff has proved that he has married one Basalingavva in the year 1955. The lower appellate court considering the inordinate delay of 13 years in approaching the appellate court and considering the entire material on record has dismissed the appeal and confirmed the judgment and decree of the trial court.

Both the courts below after considering the oral and documentary evidence on record have concurrently held that the defendant has failed to prove that she is the wife of plaintiff is based on the cogent legal evidence on record. Such a finding fact cannot be interfered with by this Court under Section 100 of the Code of Civil Procedure. No substantial question of law involved in the present appeal.

Accordingly, the appeal is dismissed.