‘1 :1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE l4 DAY OF DECEMBER 2010 BEFORE THE HON’BLE MRJUSTICE V.G.SABHAHIT REGULAR FIRST APPEAL NO.136/2002 (DEC) BETWEEN: ANANTH GOVIND RAO PATIL AGED ABOUT 78 YEARS R/O LINGAPUR VILLAGE TALUK BELAGI, DIST. BIJAPUR, (EARLIER REP BY HIS POWER OF ATrORNEY HOLDER RAGHUNATH RAMACHANDRA HABBU, AGED ABOUT 65 YEARS, R/O GALAGALI, BILAGI DIST. BIJAPUR.) APPELLANT SINCE DEAD BY HIS LR5., 1(a) GIRISH, S/0. ANANTRAO PATIL, AGED ABOUT 58 YEARS, 0CC: GOVT. SERVICE, RiO. KOLHAPUR. 1(b) MADHUKAR, S/O. ANANTRAO PATIL, 2 AGED ABOUT 54 YEARS, OCC BANK SERVICE, R/O PUNE, KOLHAPUR MOHAN, 6/0 ANANTRAOPATIL, AGED ABOU1 46 YEARS 0CC: MEDICAL OFFICER, RiO KOLHAPUR ‘d) RUKMINI, W/0. RANGANATH HABBU 0CC HOUSEHOLD WORK R/O GALAGALI, TQ BILAGI (amended vide 1(e) MADHURI, Order dt 15 01 2009) W/O. GOVIND NADAGOUDA AGED ABOUT 52 YEARS HOUSEHOLD WORK, R/O PIMPAR1 PUNt PPE LN1 B RIRUDt GA CIINAM! PD FORAPELAN a Ole 1 I’ I 0 13. ARAVIND VITHAL KULKARNI 1C. BINDU MADHAVA VITHALARAO KULKARNI ID. GOVIN DARAO V1THALARAO KULKARNI IE. VENKATESH VITHAL KULKARNI 1F. ASH WINI © NALINIBA1 W/O ANIL JERRY, ALL ARE MAJORS, RIO. N0372, NEHRU ROAD, TILAKAWADI, BELGAUM. 2, NARAYANA GOVINDARAO PATIL AGE: 71 YRS, 0CC: LANDLORD RJO R.R HABBU GALAGALI TALUK BILAGI (BY SRI, K.CHANDRANATH ARIGE, ADV. FOR R1(a) TO RI(f), APPEAL IS ABATED AGAINST R2 VIDE ORDER DATED 18.07.2005) THIS RFA FILED U/S.96 OF CPC AGAINST THE ‘ cn—-c rr—’. -i -‘ r O.S,NO.33/92 ON THE FILE OF THE PRL CIVIL JUDGE,. 4, :4: (SR.DN.,) JAMAKHANDI, DISMISSING THE SUIT FOR DECLARATION, POSSESSION AND CONSEQUENTIAL RELIEF OF INJUNCTION. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, ThE COURT DELIVERED ThE FOLLOWING: JUDGMENT This appeal is filed by the plaintiff in O.S. No.33/1992 on the file of the Pd. Civil Judge (Sr. Dn.), Jamakhandi, being aggrieved by the judgement and decree dated 27.10.2001, wherein the suit flied by the plaintiff has been dismissed. 2. The original appellant herein - Ananth Govind Rao Path filed O.S. No.31/1987, which was later numbered as O.S. No.33/1992 against defendants 1 to 3 averring that the plaintiff and defendants 2 and 3 are full brothers and they own lands comprised in Sy. Nos.1/4 measuring 08 Guntas, Sy. No.4/4 plus 5 measuring 6 Acres 18 guntas, Sy. 6 No 51/1 measuring 16 Acres and Sy No 3 measuring 07 Acres 36 guntas, situate in Lingapur Taluk Bilgi and a house in the said village bearing old V.P C No 35 (new V F C No 3/) at Lingapur It is averred that the above said lands were re granted in favour of plaintiff and defendant Nos 2 and 3 .n the year 1968 They were the ancestral properties of the plaintiff and defendants 2 and 3 In the said lands, their mother Ambabal has not got any nght and title in the said properties and she has absolutely no nght to dispose of it either by testamentary method or any other method In spite of the said fact, she has bequeathed her l/4 share in the said properties in favour of defendant No 1 by executing egistered Will and the same ias bcer execukd wit ou ci’ ledge hepla tiffa defc d ‘ r Fe ti-c a stareta apait >‘ t I. .cJ :6: and she had never gone to the house of defendant No.1 after he had gone in adoption to one Kulkami family. It Is further averred that on the strength of the said Invalid and illegal Will, defendant No.1 Is threatening the plaintiff and unauthorizedly and forcibly wants to remove the standing crops in the suit lands. Defendant No.1, after being drunk unauthorizedly, entered to the plaintiff’ s house bearing V.P.C. No.57 when the plaintiff had gone out of Lingapur and threatened both the plaintiff and his wife and son and also abused them and threatened them that he would remove the crops in the suit lands and frightened the plaintiff. Hence, the plaintiff was constrained to file the suit for permanent Injunction against defendant No.1. InItially, the suit was filed for the following reliefs: “a) For the reasons mentioned above in paras 1 to 8 of the plaInt, it Is prayed that defendant No.1 may be restrained by permanent Injunction from not interfering with the peaceful possession and enjoyment of the suit lands and removing the crops in them and also not entering VPC No37. The schedule of the properties attached to this plaint may be treated as part of this plaint. b) The plaintiff may be allowed to amend correct the plaint if required to do so. The plaintiff may be awarded the costs of this suit from defendant. As the defendant Nos2 and 3 are interested parties to the suit and, they are necessary formal parties and hence, no relief is claimed against them, c The plaintiff may be given all sorts of reliefs, which are lust and equitable and ancillary to the main relief. On these and among other grounds. UI 0 plaintifO s suit ma be decreed with costs. 1’ :8: By way of amendment, the plaintiff has Included the prayer to the effect that as defendant No.1 has unauthorizedly entered on the land in Sy. No.51/B to the extent of 8 Acres, the actual possession in it may be delivered to the plaintiff from defendant No.1. 3. The suit was resisted by defendant No.1 by filing the written statement. The averments made In the suit regarding the validity of the Will are false, frivolous and mala fide. The plaintiff and defendants 2 and 3 have collusively and fraudulently filed the present suit, without any right or semblance of any right and the suit in the present form is not tenable. The plaintiff and the defendants are out of the possession of the land In question for 12 years. No probate is required for defendant No.1 to get title under the WIll. Probate Is required only when an executor is appoInted under the WIll by the testator. Plaintiff and defendants 2 and 3 are neither owners nor in possession of the 1 / 4 th share and that it is defendant No.1, who has perfected his title under the will. The plaintiff cannot assail the Will and title of his .4, :9: mother and defendant No.1 under the said Will. It is further averred that Ambabal died in 1976. Relying upon the said Will, the plaintiff and defendants partitioned the family properties and defendant No.1 got 1/4”’ separate share under the Will. The parties voluntarily gave vardi to the village accountant concerned to record the amicable partition amongst the plaintiff and defendants in 1973. Accordingly, names of all the parties were recorded in the record of rights to their respective shares and no numbers were assigned. Since 1978, the parties are in possession and enjoyment of their respective shares in the suit lands and the house. The plaintiff and defendants 2 and 3, beIng parties to the partition and having accepted the Will In question, which is regIstered, are estopped from questionIng the Will. There is no cause of actIon for the suIt. Therefore, the plaintiff is not entItled to any relief. 4. HavIng regard to the pleadings of the parties, the trial Court framed the following Issues and additional Issue: 41 10: “1. Whether in an injunction suit, two valuations one for the purpose of payment of Court fee and another for purpose of pecuniary jurisdiction can be made as done in this case? 2. If yes, whether court fee paid is sufficient? 3. If the suit brought in the present form without declaratory relief is not maintainable as contended by defendant No.1? 4. Does plaintiff prove that his mother had no right, title in suit properties to such the Will executed by her in favour of defendant -1 in respect of 114 th undivided share Is void? 5. Does defendant -1 prove that plaintiff, 2defendants-2 and 3 acceptIng the Will executed in his favour by their mother partitioned the family properties In 1973 and accordingly, they are in separate possession and enjoyment of the suit Ut ‘1 : 11: properties as contended In para 8 of his written statement? 6. Is plaintiff entitled to reliefs sought? 7. What decree or order?” Additional issue: “1. Whether plaintiff proves that the Will In question Is the result of fraud and undue influence allegedly the mother of plaintiff ?“ On behalf of the plaintiff, his power of attorney holder, who is also his son-in-law, was examined as PW.1 and he also examIned PW.2 and got marked the documents — Exs.P1 to P4. On behalf of the defendants, defendant No.1 dIed during the pendency of the suit and one of his legal representatives was examined as DW.1 and the legal representative of defendant No.1 also got examIned DW.2 regarding the cultivation of land by defendant No.1 and got marked the documents Exs.D1 to D21. The trial Court, after considering ‘V :12: the contentions of the counsel appearing for the parties and appreciating the oral and documentary evidence adduced by them, by judgement dated 27.10.2001, answered the issues and additional issue as follows:- 1. Does not survive for consideration. 2. Does not survive for consideration. 3. Doest not survive for consideration. 4. In the negative. 5. In the affirmative. 6. In the negative. 7. As per the final order, Additional Issue No.1 : In the negative.” and accordingly, dismissed the suit. Being aggrieved by the said dismissal of the suit by the trial Court, this appeal Is flied by the unsuccessful plaintiff before the trial Court. 5. I have heard the learned counsel appearing for the appellant. :3o oj :3 1J3 CD D n r 0 rn —I x CD D CD- :3 o CD 0 :3- :3 0 :3 C :3 CD — o :3 :3 :3 CD :3 Lfl 0 CD :3 :3 -, :3 CD :3 - -‘ 0 :3 CD :3 (13 B t\) C :3 -:3 :3- 0 9 r r :3 :3 :3 CD CD -p :3 — CD , (_ 3 CD :3D ) -o w - — 0 r 3:3 :3 CD o. a’ CD CU :3 - :3c. c :3 :3 r ZE D (_ :3 3:3 :3 D V3 0 C, :3 C) 0 - :3 D CD 3- :3:3 CD m 3 (3 * :3 CD z 0 V D , x C:3 :33 :3 :3 r D C) :3- :33 :3 :3 :3 CD 0 - 1 :3 - :3 :3 :3 Ct) 3 92 :33 o :3o. 11) 92 C :3 - :3 0) c C0 (D —‘ C B :3 _:33 CD CD :3 :3 0) :3 :3 :3 CD 0) (D :3 a; :3 H a, CD a) a CD C3 CD 0J 13 :3 CD :3 :3 CD 0. C Z a) :3 :3 3 v CD 0) - :3 :3 0 - :3 0. :30 a; :3 :3 o 0. a; CD C CD —) 0 go a; :: - CD -C ,-% :3 :3:3 0 :3 (13 k V :3 s- :3 CD 0 :3 :3 C :3 ;- c a; :3 (13 a; :3 (3 V 0 CD C o -‘ (U 0 9: . CL CD 0 0. — 4t -C -C :3- a; o :3 - V 0) 0. - V V :3 CD ‘ CD CD CT * :3 CD CL (U 0. (13 Q) (D CD CL 0. -C a) (U cx -D CD - rt V) 0 CD CL N) :3 0) :3 0 V u_) ,D V CJ3 CD :3 C CD — - 02 :3 r r :3 CD CD :3 :3:3 0 CI - 0J :3 :3 V , V -‘ CD CD CD V 0) — 0 “‘ 0 a; N) 3: 0) (13 :3 -‘ :3 0. CD :3 • 11 by Ambabai in favour of defendant No.1 cannot be accepted. ihe trial Court ought to have allowed the suit of the plaintiff 8 Having regard to the contentions urged, the points that arise for my determination In this appeal are as follows. - 1. Whether the finding of the trial Court on issue No.4 that the plaintiff has tailed to prove that his mother - Ambabai had no right, title and interest in the suit schedule properties and as such the Will executed by her in favour of defendant No.1 In resoect of 114 th undivided share is void, is justified or aIls for interferen e. In this appeal 2 Whether the find r a he ia ou on additional issue that the olaint’ff has failed to rov that h Wil’ n 4ueroP - thc ‘esult & a ar n e fit tL9(. cxci b acre dant N 1 ‘ipoi the mothei or the plaiqtitf ir u’t ed c. fey rr e ir this ppe ‘ 15. 3 Whether the judgemerit and decree passed by the trial Court dismissing the suit of the plaintiff is justified or calls for interference in this appeal’ 4. What order 2 I answer the above points for determination as follows Points 1 to 3 The finding of the trial Court is justified Point No,4’ In view of my answer to points I to 3, 1 answer point No 4 by holding that the appeal is liable to be dismissed as per the final order for the following REA$QS It S also the ae srt gar a n o at cia t 0 lea f om the eviden e of PI me ts made n the plead ngs hat lato a n pate lantff if t Feget S no a’ DW an her A C (1 a ‘S :16: the evidence of PW.1 that Ambabai has executed a registered Will In favour of defendant No.1 as per Ex.D1 on 19.06.1973. However, the suit of the plaintiff is based on the ground that Ambabai, attestor, had no right in the suit schedule properties and she could not have bequeathed the property In favour of defendant No.1 by Will and even If she had any right, Will was got executed by exerdse of fraud and undue Influence and Is surrounded by suspldous circumstances and that It was not acted upon by the parties. It is clear from the evidence of PW.1 that he is not the plaintiff in the suit. PW.1 is the son-in-law of the plaintiff and also the power of attorney holder of the plaintiff, who was deposing on behalf of the plaintiff in this case. He has produced the power of attorney as per Ex.P1 and has deposed that he knows the facts of the case. The suit lands were granted to the plaIntiff and defendants 2 and 3 by the Government. Defendant No.1 had gone In adoption. Ambabal Is the mother of plaintiff and she has no right in the suit property. PW.1 in his further examination-in-chief has deposed that defendants 2 and 3 have died. It is false that Ambabal executed the Will 4 17: in favour of defendant No.1. Ambabai died in the house of defendant No.1. Defendant No.1 was not looking after Ambabal when she was not well. The suit lands were re granted in favour of the plaintiff and defendants 2 and 3 in 1968 and since then, they were cultivating the same. He has further deposed in the examination-in-chief itself that about four years next before the date of his deposition (witness examined on 09.07.1998), partition of the suit properties had taken place among the plaintiff and defendants 2 and 3. The land in Sy. No.51/B measuring 8 Acres was in possession of defendant No.1 and defendant No.1, during his life time, had got entered his name in the revenue records In respect of the said land by exerting physical force. PW.1 has further deposed that he flied an application before the Tahsildar, Mudhol, who asked him to file a suit before the Civil Court. He had flied a suit before the Munsiff Court, Bagalkot. He has got marked the written statement flied by defendants 2 and 3 in the said suit as per Exs.P1.1 and P2. He has produced the record of rights in respect of the land comprised in Sy. No.51/lB as per Ex.P3 and the certified If 18: copy of the order passed by the Assistant Commissioner, Jamakhandi, dated 23.12.1989 as per Ex.P4 on the application filed by the plaintiff, wherein the appeal was dismissed with liberty to the parties to approach the Civil Court. 9.1 It is elicited in the cross-examination of PW.1 that he has read the plaint filed in the suit. The plaintiff had informed him that Ambabai had not executed any Will in favour of defendant No.1. He has denied the suggestion that he is deposing falsely to help the plaintiff, who Is his father- in-law. He has Identified the signature of the plaintiff in the partition deed and has further stated that the lands were re granted in favour of the plaintiffs and defendants 2 and 3. It is also elicited specifically that Sy. No.51/lb measuring 8 Acres is in possession of defendant No.1 and the other lands are in their possession. He has denied the suggestion that the other properties were also in possession of defendant No.1 till 1978. He has denied the suggestion that the entries in the revenue records in respect of Sy. No.51/lb stood in I :19: favour of defendant No.1. He has denied the suggestion that Ambabal has executed a Will in favour of defendant No.1 and thereafter, the same has been acted upon by the plaintiff and defendants 2 and 3 and that a false suit has been filed to make unlawful gain. He has further stated that he cannot tell on what date, the plaintiff was dispossessed from the land in question. 10. PW.2- Lakshmappa has deposed in his evidence that he knows the plaintiff and has stated that he has been cultivating the land of the plaintiff for about 20 to 30 years next before the date of his deposition. He is cultivating 30 acres of land of the plaintiff on crop sharing basis and the plaintiff Is paying water tax and sInce the plaintiff is not well, he is stayIng at Koihapura. It Is elicited in his cross examination that he is cultivating the suit lands belonging to the plaintiff. He cannot give the description of the lands owned by defendant No.1. He has not given vardi to Talate that he is cultivating the lands on crop sharing basis. He has denied the suggestion that he is deposing falsely. &1 20: 11. The documentary evidence produced by the plaintiff comprise of Exs.P1 to P4: ExP1 Is the power of attorney; Exs.P1.1 and P2 are copies of written statement filed In the earlier proceedings and Ex.P3 is the extract of the record of rights In respect of R.S. No.51/lB for the year 1997 to 1998, which is in the name of defendant No.1. Ex.P4 Is the order passed by the Assistant Commissioner, )amakhandi, wherein the appeal filed by the plaintiff challenging the mutation entry made In favour of defendant No.1 In the revenue records, has been dismissed. However, liberty has been reserved to the plaintiff to approach the Civil Court. 12. On behalf of the defendants, sInce defendant No.1 died during the pendency of the proceedings, his legal representatives 1(a) to 1(f) were brought on record. One of the sons of defendant No.1 — Blndu Madhav has been examined as DW.1 and he has deposed In his examination In-chief that after filing of the suit, defendants 2 and 3 dIed and defendant No.2 died without heirs and defendant No.3 Ii 21: has two sons by name, Ashok and Sanjeev. Defendant No.2, prior to his death, has executed a registered Will in favour of defendant No.1(E). He has produced the original Will as per Ex.D1. PW.1 Is the son-in-law of the plaintiff. The plaintiff Is hale and healthy and can walk. They are In possession of R.S. No.51/i. Previously, the said land was in possession of his father. After his death, his name has been entered in the records of rights and the said land is In their possessIon. His father inherited the said land from his mother’ s side and his mother’ s name Is Ambabal Govindarao Patil. In all the suit lands, Ambabal has got 114 th share and she bequeathed her 114 th share in favour of his father through Will. He has produced the registered Will as per Ex.D2. Thereafter, partition took place between his father (defendant No.1), plaIntiff and Shimaji — defendant No. 2 and Ashok - son of defendant No.3 to that effect. Memorandum of partition has been effected as per Ex.D3 and mutation entry has been made as per Ex.D4. He has produced the khata extract standing in his father’ s name as per Ex.D5 and the land revenue receipts as per Exs.D6 to 22: D15 and record of rights in respect of the suit properties as per Exs.D16 to D21 and in all the revenue records, name of his father (defendant No.1) appeared as the owner of the land. 12.1 It is elicited in the cross-examination of DW.1 that his father had gone in adoption to one Sitabal wife of Shimaji Kuikarni and when his father was aged 24 years, he was taken in adoption. Previously Sitabal was residing at Galagali. It is false to suggest that Sitabal was staying at Talagihal village In Bagalkot Taluk, but, her parents property is situate at Talagihal village. His father was residing at Belgaum. Himself and defendant No.1E are also residing at Belgaum and Defendant Nos.1B and 1D are residing at Bangalore. His father informed all his sons regarding Ex.D2 - Will. The said Will was executed at Bagaikot. He does not know as to who were present at the time of execution of the Will. He knows only regarding the execution of the Will by Ambabal in favour of his father. It Is true that the suit lands are patliki inam lands. He does not know whether the .23 Assistant Commissioner has re granted the suit lands in favour of the plaintiff and defendants 2 and 3 He does not know in whose house Ambabai died The plaintiff filed another suit challenging the Will executed by defendant No I The present plaintiff also filed another suit challenging the Will exetuted by defendant No.2. It is false to suggest that except R S No.51/i all the suit properties were in possession of the plaintiff It is false to suggest that no partition has taken place as per Ex D3 and the said document is created one They are getting the land in R S No 51/iA cultivated through one Ramappa Walikar DW 2 of Ningapur He has denied the suggestion that he doe not know anythi a about tie suit rorerties md hat he is deposing als 3 a b V :24: cultivating the suit land and even after his death, he was cultivating the suit land on behalf of defendant No.1 and the plaintiff used to visit Ningapur village and he had also got lands in the said village. It is eiidted In his cross- examination that he is cultivating the suit land and another land bearing R.S. No.51/i. He has given description of R.S. No.51/lB. It is elicited that he does not know as to whose name is entered in respect of the said land. The owner is paying the land revenue. He has denied the suggestion that he is deposing falsely to help defendant No.1 and that he is not cultivating the suit land. 14. The documentary evidence adduced by the defendants comprise of Ex.D1, the Will executed by defendant No.2 in favour of defendant No.1(E). Ex.D2 is the registered Will executed in favour of defendant No.1 by Ambabai. Ex.D3 — memorandum of partition deed, which shows that property was partitioned among the piaintlff and defendants 1 to 3 and defendant No.1 was allotted Sy. No.51/lb measuring