Ramappa and Others vs Parameshwarappa and Others

S.N. Satyanarayana, J.—The defendant Nos. 1 and 2 in O.S. No. 233/1996 on the file of Prl. Civil Judge (Senior Division) at Hubli, have come up in this second appeal impugning concurrent findings of both the Courts below in decreeing the suit of the plaintiff filed for the relief of partition and separate possession of their share by judgment dated 19.12.2002 which is confirmed by the lower appellate Court in R.A. No. 12/2003 filed by the defendant Nos. 1 and 2 in the original suit.

Brief facts leading to this second appeal are as under:

Plaintiff Nos. 1 to 3 in the original suit are the children and wife of first defendant Ramappa @ Ramanna son of Virupanna Nargund. The case of the plaintiffs is that third plaintiff was married to first defendant. In the wedlock plaintiff Nos. 1 and 2 are born. That the first defendant being addicted to vices, he was not taking good care of his wife and children and that he had thrown them out of the family. It is stated that the first defendant has been living in relationship with one Gowravva @ Channavva. Hence, they sought for partition of the suit properties, namely, the landed property and house property situated in Hosakatti village referred to in Schedule TV to the plaint and also in the landed property situated in Saunshi village referred to in suit Schedule ''B'' as well as the immovable properties in suit ''C'' schedule. 3. In the said suit on service of summons defendant Nos. 1 and 2 entered appearance and denied that third plaintiff is the legally wedded wife of first defendant. A defence was taken that the first defendant was married to one Gowravva @ Channavva about 20 years prior to the date of filing of the suit and that in the said marriage there were no issues. Therefore, in view of the differences between the first defendant''s wife Gowarvva and his mother Fakiravva, she was sent out of the family and thereafter at the instance of first defendant''s mother Fakiravva, first defendant''s elder sister-Neelavva''s daughter was married to him which is said to be his second marriage. According to defendants, the said second wife is the third plaintiff and plaintiff Nos. 1 and 2 are born to first defendant in his second marriage with third plaintiff. In the said suit, it was also contended that the suit ''A'' schedule properties are given to him in the partition. Suit ''B'' schedule property was the exclusive property of defendant Nos. 1 and 2 as it was given to them from their mother in which the first and second defendant have equal share and that the said property is the exclusive property of Defendant Nos. 1 and 2 in which plaintiff''s cannot seek partition.

In the said suit based on the aforesaid pleadings the following issues were framed:

1) Whether the plaintiff is in joint possession and enjoyment of suit property?

2) Whether the plaintiff proves that suit properties are joint family properties?

3) Whether the plaintiffs prove that defendant No. 1 is addicted to bad habits?

4) Whether deft. No. 1 proves that Gourawwa is his legally wedded wife?

5) Whether the deft. No. 1 proves that he has sold R.S. No. 57/2 of Agadi village for legal and family necessity?

6) Whether suit is bad for non-joinder of necessary parties?

7) Whether the Deft. No. 1 proves that plaintiffs are also liable to pay their share loan amount incurred by him as pleaded in para 14 of the W.S.?

8) Whether deft. No. 1 proves that V.P.C. No. 228 of Hoskatti village is acquired by him from his mother?

9) Whether plffs. Are entitled for share? If so, what is their share?

10) Whether the Plffs. Are entitled to mesne profits?

11) What decree or order?

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In support of aforesaid issues, parties were called upon to adduce evidence. Third plaintiff adduced evidence as P.W.1 and she also examined her mother Neelawwa as P.W.2 and in support of their case they produced in all 9 documents which are marked as Ex.P.1 to Ex.P.9. On behalf of the defendants, first defendant adduced evidence as D.W.1 and in support of his case he also examined three other witnesses, first one is, D.W.2-Mallappa, a resident of same village, he was examined to support that the third plaintiff deserted her husband and went to her parents house, also to substantiate that the first defendant had earlier married to one Gowravva who is first wife of first defendant and third plaintiff is her second wife. Similarly, he examined another witness by name Basavanneppa Channabasappa Gurusangappanavar @ Ganiger as D.W.3, who is the resident of Ganjikoppa village, from which the first wife of plaintiff was supposed to be hailing. The said witness is also examined to establish that first defendant''s first wife is Gowravva and not the third plaintiff. Similarly one more witness was examined as D.W.4-Shekhappa Channabasappa Melinamani who is stated to be the father of said Gowravva with whom the first defendant is said to have relationship. The said D.W.4 tried to establish that his daughter is given in marriage to P.W.1 prior to his marriage with plaintiff No. 3. In the said proceedings in all 9 documents were produced in support of D.W.1 which are marked as Ex.D.1 to D.9.

The trial Court on appreciation of pleadings, oral and documentary evidence available on record disbelieved the defence of first defendant that his first wife is Gowravva and third plaintiff is his second wife. On the contrary, considering the pleadings and nature of relationship between the parties, the trial Court held that the third plaintiff who is the elder sister''s son of first defendant is his first wife and that plaintiff Nos. 1 and 2 are born to third plaintiff and first defendant in their wedlock. With reference to suit schedule ''A'' ''B'' and ''C'' properties are concerned, the same were not held to be the properties of first defendant inherited from out of the joint family properties to his share. In the judgment it was also observed that the alleged transaction of suit schedule ''B'' property in favour of second defendant to meet the family necessities, i.e., to clear the loans of first defendant which was raised for cultivation of the lands and for construction of the house and various other things was also disbelieved for two reasons, one that the evidence of defendant was not supported by pleadings and that the second defendant who has stated they have succeeded to suit ''B'' schedule property from their mother, did not step into the witness box to support the same.

In addition to that, the alleged agreement for sale of ''B'' schedule property from first defendant to second defendant was also not established. In that view of the matter, all the issues framed in O.S. No. 233/1996 were answered in favour of plaintiff Nos. 1 to 3 and consequently the suit of the plaintiffs filed for the relief of partition and separate possession to them in the said properties is allowed by judgment and decree dated 09.12.2002.

Being aggrieved by the said judgment the defendant Nos. 1 and 2 preferred an appeal in R.A. No. 12/2003 on the file of the Fast Track Court, Dharwad, wherein the lower appellate Court on reappreciation of the pleadings and evidence proceeded to frame the following points for consideration.

1) Whether the judgment and decree passed by the learned Prl. Civil Judge (Sr. Dvn.), Hubli, in O.S. No. 233/96 dated 19.12.2002 calls for interference by this Appellate Court?

2) What order?

--- The aforesaid points are answered in the negative holding that the judgment and decree passed by the Court below in O.S. No. 233/1996 is just and proper and does not call for interference in the said appeal. In fact, learned counsel for appellant tried to rely upon the judgment rendered by a Co-ordinate Bench of this Court in the matter of Mrs. Mallika and Others Vs. Mr. Chandrappa and Others, . On going through the said judgment, it is clearly seen that the said judgment would not apply to the facts of the case and the same cannot be accepted.

In the light of the aforesaid judgments of both the Courts below it is seen that the plaintiff Nos. 1 and 2 in O.S. No. 233/96 have established that the third plaintiff in the original suit is the legally wedded wife of first defendant-Ramanna and in their wedlock plaintiff Nos. 1 and 2 are born and that they are entitled to share as claimed in the said suit which is rightly decreed by the trial Court and accepted by the lower appellate Court. As against the concurrent findings of both the Courts below, this Court finds no justifiable grounds are made out to consider admission of this second appeal in as much as no substantial question of law arises for consideration. Accordingly, the appeal is dismissed.