Shivangouda Sannalingangowda Patil (Deceased) by L.R. vs Godigevva alias Vimalalatai and Others

V. Gopala Gowda, J.—The appellant and 8th respondent were the plaintiffs and other respondents were the defendants in the Trial Court. For the sake of convenience, the parties are referred to as per their rank, in the Trial Court.

The plaintiffs filed the suit in O.S. No. 16 of 1975, which was later numbere,d as O.S. No. 6 of 1979 after transfer, for possession of suit Schedules ''B'' and ''C'' properties and for mesne profits. The case of the plaintiffs is that plaintiffs and 7th defendant are the legal heirs of their father and defendants 1 to 4 are not legal heirs and since defendants 1 to 4 did not handover possession of the suit lands to the plaintiffs, suit is filed. The defendants resisted by filing written statement denying the case pleaded by the plaintiffs and contending that they are the legal heirs of Veeranagouda, who married the mother of defendants 1 to 4. It is stated that the Government has regranted the land in their favour. The .defendants 1 to 4 have prayed for dismissal of the suit. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material evidence on record, the Trial Court dismissed the suit by its judgment dated 18-6-1982. At the same time, the Trial Court negatived the case pleaded by the defendants that they are the legal heirs of Veeranagouda. Aggrieved by the dismissal of the suit, the plaintiffs filed appeal in R.A. No. 32 of 1982 and defendants filed cross-objections challenging the findings recorded by the Trial Court against them. Upon consideration of the appeal and cross-objections, the first Appellate Court by its judgment dated 17-9-1998 allowed the cross-objections and dismissed the appeal by confirming the judgment and decree of the Trial Court. Aggrieved by the same, this second appeal is filed by the legal representative of 2nd plaintiff.

This appeal was admitted to consider the following substantial questions of law.-

Whether the judgments and decrees of Courts below are vitiated for holding that the suit is not maintainable without seeking a declaration?

Whether the lower Court was justified in reversing the finding regarding the validity of marriage in the absence of pleading regarding uduki form of marriage?

Heard the learned Counsels for the parties and perused the judgments and decrees of the Courts below.

Mr. Ajit J. Gunjal, learned Counsel for the appellant submitted that the concurrent findings of the Courts below are bad in law. He further submits that the First Appellate Court was not justified in reversing the findings of the Trial Court on issues 9 and 10 and the same are contrary to the decision of the Supreme Court. According to him, Uduki marriage between the mother of defendants and father of plaintiffs is not established. Per contra, learned Counsel for the defendants/respondents argued justifying the judgment and decree of the first Appellate Court.

I have perused the judgments and decrees of the Courts below. Prima facie, the Trial Court committed an error in law by answering issues 9 and 10 against the defendants without appreciating the evidence placed on record keeping in view the decision of the Supreme Court in Shakuntalabai and Another Vs. L.V. Kulkarni and Another, and the Division Bench of this Court in Shivalingaiah v. Chowdamma AIR 1956 Mys. 17 wherein Uduki marriage has been recognised in the community of the plaintiffs and the region. The First Appellate Court found that Hanamawwa, the mother of defendants lived with Veeranagouda for about 23 years. It is also an admitted fact that defendants were the daughters of said Hanamawwa. The First Appellate Court also held that if Veeranagouda and Hanamawwa were not wedded couple and defendants 1 to 4 were not their legitimate children, the plaintiffs could not have accepted them as members of their family. The admission of P.W. 1 that Veeranagouda and Hanamawwa had lived together under the same roof and cohabited for number of years ipso facto proves that they lived as husband and wife. The first Appellate Court on proper appreciation of evidence on record particularly the documentary Exhibits PI, P2, P3 to P27, D3, D4, D28 to D39 and other documents produced by the parties and the evidence with regard to Veeranagouda and Hanamawwa lived together under the same roof for number of years, has recorded the findings in the impugned judgment with valid and cogent reasons. The said findings are in conformity with the law laid down by the Apex Court and this Court in the following cases in S.P.S. Balasubramanyam Vs. Suruttayan alias Andali Padayachi and others, , Badri Prasad Vs. Dy. Director of Consolidation and Others, and Smt. Nirmala and Others Vs. Smt Rukminibai and Others, Therefore, the first Appellate Court was perfectly justified in reversing the findings of the Trial Court on Issues 9 and 10 and also concurring with the findings on the issues. Hence, the second substantial question of law is answered in the affirmative.

The crux of the matter is about the relationship of Veeranagouda and Hanamawwa. Since it is held that they lived as husband and wife for several years, the legitimacy of defendants 1 to 4 cannot be questioned. In view of the affirmative answer on the second substantial question of law, the first substantial question framed by this Court became academic. There is no scope for interference with the concurrent findings of the Courts below.

It is also pertinent to note that even though the deceased, 8th respondent was the plaintiff before the Trial Court and his legal representatives challenged the judgment and decree of the Trial Court before the First Appellate Court, they are not the appellants in this appeal. This implies that they have accepted the judgment and decree of the first Appellate Court affirming the judgment and decree of the Trial Court.

In the result, the appeal is dismissed. Parties to bear their own costs throughout.