Eramma vs Krishnappa

A.S. Bopanna, J.

The plaintiff as well as the defendant are before this Court in these two appeals. RSA No. 445/2011 is filed by the plaintiff while RSA No. 482/2011 is filed by the defendant.

The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.

The plaintiff was before the trial Court in O.S. No. 17/2005 seeking for declaration that she is the owner of the suit schedule property and for injunction. Alternatively partition and separate possession of her share in the suit schedule property was sought. The trial Court though dismissed the suit in respect of the prayer for declaration and permanent injunction, partly decreed the suit granting partition and separate possession to the extent of one fifth share out of 8 acres 16 guntas which had fallen to the share of Guddaiah i.e., the father of the defendant.

The defendant claiming to be aggrieved by the said judgment dated 03.01.2009 passed in the suit was before the Lower Appellate Court in R.A. No. 14/2009. The Lower Appellate Court allowed the appeal in part and set aside the judgment and decree of the trial Court insofar as granting one fifth share to the plaintiff in the suit property. The cross appeal of the respondent was also dismissed. Ultimately, the Lower Appellate Court decreed the suit only to the extent of grant of permanent injunction against the defendant from dispossessing or causing interference to the peaceful possession of the plaintiff over the suit schedule property. It is in that view, both the plaintiff and the defendant are before this Court.

This Court while admitting the appeal on 26.03.2014 had framed the following substantial question of law for consideration:

"Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing the judgment and decree passed by the trial Court and denying share to the plaintiff holding that the plaintiff has failed to prove the death of her husband?"

In the light of the above, I have heard the learned counsel for the parties.

The plaintiff while seeking relief as prayed in the suit had contended that she is the wife of Sri Bhupathi Ranganna who is the son of Krishnappa. The defendant is stated to be the son of Guddaiah who is the first son of Krishnappa i.e., the brother of Sri Bhupathi Ranganna. The plaintiff while seeking right in respect of the suit schedule property had contended that her husband Sri Bhupathi Ranganna was not heard of and prior to the same, the suit schedule property to which she laid claim had fallen to his share in the partition. It is in that view, a declaration has been sought and injunction to protect right in respect of the property was prayed.

The defendant not only disputed the right as claimed by the plaintiff to the property, but also disputed the very relationship and as such, the relief as prayed in the suit was opposed.

The trial Court on taking note of the rival contentions framed as many as eight issues initially and two additional issues thereafter for consideration. The plaintiff examined three witnesses as P.Ws. 1 to 3 and relied upon the documents at Exhs. P1 to P10. The defendant examined himself as D.W. 1, a witness as D.W. 2 and relied upon the documents at Exhs. D1 to D17. The trial Court while taking note of the evidence available on record had arrived at the conclusion that the case as put forth by the plaintiff itself would disclose that Sri Bhupathi Ranganna was not heard of as claimed by the plaintiff at that point for six years. To that extent, the contention as put forth was taken note and since there was no evidence available on record to indicate that there was a partition earlier and therefore an absolute right could be claimed by the plaintiff, had granted the judgment and decree of partition.

The defendant having assailed the same before the Lower Appellate Court, the Lower Appellate Court though had taken note of the evidence available on record to come to the conclusion that the relationship was established, was however of the opinion that the very case as put forth by the plaintiff was that her husband was not heard for six years and as such, as on the date of filing the suit, the statutory period of seven years as contemplated in law had not expired and therefore the deemed civil death of the husband cannot be accepted.

In that light, the Lower Appellate Court was of the view that when the plaintiff claims right to the property to which her husband was entitled to, unless the death or the deemed civil death of the husband was proved, the share as sought also could not have been granted by the trial Court. However, taking note of the fact that she was living in the property, the injunction had been granted.

A cumulative perusal of the judgments passed by the Courts below in the light of the fact that both the plaintiff and the defendant are before this Court in these two appeals, the entire aspect of the matter requires to be placed in perspective before a decision is taken. Thus taking note of this aspect, the decision as reached by the Lower Appellate Court that the statutory period had expired as on the date of filing the suit and in that light, since the civil death of the husband of the plaintiff was not proved, the right could not have been considered at that stage would stand justified. However, taking note of the fact that the Lower Appellate Court had considered the plaintiff to be the wife of Sri Bhupathi Ranganna and since both the Courts below had arrived at the conclusion that there is no material available on record to indicate that there is no prior partition whereby the plaintiff can claim for a declaration as had been sought in the suit, the matter would require reconsideration. Further, what is also to be taken into consideration is that the appellant in RSA No. 445/2011 has filed I.A. No. 1/2015 seeking to produce additional documents. The leave to do so before the trial Court would have to be granted after providing an opportunity to the defendant to file objections if any, to the said application.

In that light, keeping in view the manner in which the rights have been claimed and taking into consideration that the statutory period for deemed civil death has now elapsed and if appropriate amendment is made to the plaint and the defendant is also provided an opportunity to file necessary additional written statement in that regard, the consideration of the matter based on the evidence that would be tendered with regard to deemed civil death and in that light, the right claimed by the plaintiff to the suit schedule property through her husband would have to be considered and thereafter a decision would have to be taken by the trial Court since both the trial Court as well as the Lower Appellate Court have proceeded only on the fact that the period of deemed civil death had not been completed.

To enable the same, the judgment dated 03.01.2009 passed in O.S. No. 17/2005 and the judgment dated 23.11.2010 passed in R.A. No. 14/2009 are set aside. The matter stands remitted to the Civil Judge (Jr. Dn.), Sira, to restore O.S. No. 17/2005 on file and provide opportunity to the parties in the manner as indicated above and reconsider the matter afresh keeping in perspective the nature of the contention that has been put forth in the light of the relationship between the parties that has been claimed.

Since the parties are represented by their learned counsel before this Court, they shall appear without issue of fresh summons before the trial Court on 01.06.2015 as the first date of appearance. The trial Court shall thereafter regulate its proceedings. It is also necessary to indicate that before the trial Court takes up the matter for consideration on merits, the suit be referred to the nearest Mediation Centre and permit the parties to explore the possibility of settlement which could thereafter be recorded in the suit. But if no settlement takes place between the parties, the trial Court shall thereafter proceed to consider the matter in accordance with law.

In terms of the above, both the appeals are allowed in part. Parties to bear their own costs.