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2023 Supreme(Online)(KAR) 2466
HIGH COURT OF KARNATAKA
M.G.S. KAMAL, J
SRI.LAXMIKANT S/O VAMAN WAGLE AGE: 84 YEARS – Appellant
Versus
SMT.VIDYA D/O VITTHAL WAGLE – Respondent
REGULAR SECOND APPEAL NO. 100453 OF 2020
For the Appellants/Petitioners: SRI. S R HEGDE, SRI.S.S.HEGDE, SRI.P.K.SANNINGAMMANAVAR
For the Respondents: SRI.VINAYAK BHAT, SRI.S.V.YAJI
Defendant's claim to property based on long-term possession was insufficient against plaintiffs' established legal heirship.
Headnote:(A) Civil Procedure Code - Section 100 - Regular Second Appeal - Defendant's challenge to a suit for declaration of legal heirship and illegality of mutation - Appeal filed against the dismissal of appeal by the First Appellate Court, affirming Trial Court's decree - Plaintiff alleged that defendant entered name in revenue records illegally as he is not a family member; Defendant claimed long-term possession and non-questioning by plaintiffs establish their acquiescence - The courts found the plaintiff's claims valid and the defendant's justification inadequate - No substantial question of law arises warranting interference. (Paras 1, 12, 18, 20)
(B) Limitation - The suit filed years after the contested mutation entry insufficient to establish a vested right in favor of defendant. (Paras 16, 17)
Facts of the case:
The suit filed for declaring plaintiffs as legal heirs of deceased Dattatraya and contesting defendant's name in records. The defendant's claim of maintenance and care for property contested.
Findings of Court:
Both courts found for plaintiffs, establishing their legal heirship and rejecting the defendant's claims.
Issues: Key issues regarding legal heirship, legitimacy of the defendant's name in revenue records, and limitation of suit addressed.
Ratio Decidendi: The defendant's lack of justification for his claims and the plaintiffs' established rights led to the affirmation of the judgment.
Result: Appeal is dismissed.
| Table of Content |
|---|
| 1. claims of legal heirship and contest against illegal mutation entries. (Para 2 , 3 , 4 , 5) |
| 2. court confirmed plaintiffs' legal rights to property based on records. (Para 10 , 15 , 18 , 19) |
| 3. appellant challenges trial court's error in dismissing appeal. (Para 12 , 13) |
| 4. final dismissal of appeal, affirming lower court's decision. (Para 14 , 16 , 20) |
| 5. defendant's possession does not equate to ownership rights. (Para 17) |
JUDGMENT
1. Present appeal is by defendant No.1, aggrieved by the judgment and order dated 20.12.2019 in R.A.No.28/2017 passed on the file of the Addl.Senior Civil Judge, Karwar (hereinafter referred to as ‘the First Appellate Court’), in and by which the First Appellate Court while dismissing the appeal has confirmed the judgment and decree dated 02.11.2017 passed in O.S. No.73/2015 on the file of the Principal Civil Judge, Karwar (hereinafter referred to as ‘the Trial Court’).
2. The above suit in O.S.No.73/2015 is filed by the plaintiffs seeking relief of declaration declaring that the plaintiffs and defendants No.2 and 3 to be the legal heirs of late Dattatreya Wagle and late Yamuna w/o Dattatreya Wagle and to declare that entering the name of defendant No.1 in the record of rights in respect of the suit properties is illegal and consequentially to direct the revenue officials to delete his name and enter the name of the plaintiffs and defendants No.2 and 3 thereof.
3. It is the case of the plaintiffs that late Dattatreya Triyambak Wagle was the propositus of plaintiffs’ family and his wife was Yamuna. That the said Dattatreya and Yamuna had three sons namely Vittal (deceased), Maheshwar (deceased) and Maharudra-defendant No.2 and a daughter by name Nalini-the plaintiff No.3. Deceased-Vithal had two daughters namely Kala-the defendant No.3 and Vidya-the plantiff No.1, Maheshwar had a daughter by name Vineeta Kulkarni-the plaintiff No.2. That the suit schedule property bearing Sy.No.1030/5 measuring 10 guntas situated at Baad-II village, Karwar taluk belonged to said Dattatreya Wagle and on his demise, the property was succeeded by plaintiffs and defendants No.2 and 3. That defendant No.1 is not the member of the family of the plaintiffs and defendants No.2 and 3. That in collusion with the Revenue Authorities, the defendant No.1 got his name mutated in the revenue records. That the Revenue Authorities without even verifying the claim of defendant No.1, had mutated his name in the revenue records illegally and hence the suit.
4. Defendant No.1 in his written statement admitted the genealogy shown by the plaintiffs with regard to their relationship with Dattatreya who was the propositus. However, it is contended that neither the plaintiffs nor the defendants No.2 and 3 were going to Karwar and taking care of the suit properties. That the name defendant No.1 was entered in the revenue records during the year 2002 itself and the plaintiffs being aware of the same, had not questioned the same and hence the suit is barred by limitation.
5. It is further contended that the suit properties were the joint family properties of the plaintiffs and the defendants and one Sheshagiri Wagle was the original propositus of the family, who died leaving behind his son by name Pondu and said Pondu Shenvi had 7 children out of which Ramchandra, Triyambak and Sheshagiri were the 3 sons. The father of the plaintiffs by name Dattatreya was the son of the branch of Triyambak and the father of defendant No.1 by name Vaman is the son of Sheshagiri. The branch of Ramachrandra was discontinued and not traced out. Further he admits that said Dattatreya had three sons by name Vithal, Maheshwar and Maharudra. That the plaintiff No.1 and defendant No.3 are the daughters of Vithal, plaintiff No.2 is daughter of Maheshwar and plaintiff No.3 is the daughter of Dattatreya. They were the family members.
6. It is further contended that the deceased- Dattatreya and other members of the joint family were all settled outside Karwar and
