Appellant/defendant feeling aggrieved by judgment and

decree passed by the First Appellate Court on the file of Prl.

District and Sessions Judge, Dharwad in R.A.No.14/2007, dated

18.6.2009, preferred this appeal.

2.

Parties to appeal are referred with their ranks as

assigned before Trial Court for the sake of convenience.

3.

The factual matrix leading to the case of plaintiff

can be stated in nutshell to the effect that plaintiff No.1 is

legally wedded wife of Basavaraj W/o Madivalppa Kurshannavar

of Lokur Village and out of the wedlock plaintiff Nos.2 to 4 are

born to them. The husband of first plaintiff died on 23.1.1998

leaving behind him the plaintiffs as only legal heirs. The suit

property bearing block No.14, measuring 3 acres 9 guntas out

of 12 acres 36 guntas has fallen to the share of deceased

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Basavaraj in the partition with his brothers. On the death of

Basavaraj, plaintiffs have succeeded to suit property. On the

basis of order passed by Assistant Commissioner, in RTS

No.128/2001, dated 27.7.2001, the defendant started asserting

her right over suit property and caused obstruction to the

enjoyment of suit property by plaintiffs. Therefore, plaintiffs

were constrained to institute suit on hand for the relief claimed

in suit.

4.

In response to suit summons defendant appeared

through counsel and filed written statement contending that

she is wife of deceased Basavaraj and their marriage took place

on 15.5.1977 in front of the house of bridegroom at Lokur,

since then they were residing together and led marital life in

the house of Basavaraj. Plaintiffs field O.S.No.378/1999 on the

file of II Addl. Civil Judge (Jr.Dn), Dharwad, which came to be

dismissed. Plaintiffs have no any right, title, interest over the

suit property and they are unconnected to their family.

Therefore, prayed for dismissal of the suit.

5.

The trial Court has framed necessary issues.

Plaintiffs to prove their case relied on the evidence of PWs.1 to

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4 and documents as per EXs.P.1 to 10. Defendant relied on

evidence of DWs.1 to 4 and documents Exs.D.1 to 15.

6.

Plaintiffs challenged the said judgment and decree

of trial Court before the First Appellate Court on the file of Prl.

District and Sessions Judge, Dharwad in R.A.No.14/2007. The

First Appellate Court after re-appreciation of evidence by

judgment dated 18.6.2009, reversed the finding of trial Court

and allowed the appeal of the plaintiffs by setting side the

judgment and decree of the trial Court. Consequently, decreed

the suit of plaintiffs.

7.

Appellant/defendant challenging divergent finding

recorded by the First Appellate Court contending that contrary

finding recorded by the First Appellate Court on the marital

status of first plaintiff with deceased Basavaraj and the plaintiff

Nos.2 to 4 being their children is against the law and evidence

on record. The First Appellate Court has not properly

appreciated the evidence of D.Ws.1 to 4 and documents at

Exs.D.1 to 15. There was no reason for the First Appellate

Court to disbelieve certificate issued by Head Master,

Government Higher Primary School, Lokur, Ex.D.10 wherein

name of Basavaraj not shown being the father of respondent

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No.4/Madivalappa. The First Appellate Court has erroneously

disbelieved the evidence of D.W.2 father of defendant and two

witnesses D.Ws.3 and 4 to substantiate the claim of defendant

that she is wife of deceased Basavaraj. The observations and

finding recorded by the First Appellate Court is not based on

the legal evidence on record. Therefore, prayed for allowing the

appeal and to set aside the judgment and decree of the First

Appellate Court. Consequently to restore the judgment and

decree of the trial Court.

8.

In response to notice of appeal, respondent

appeared through counsel.

9.

This Court, by order dated 20.7.2009 admitted the

appeal and framed following substantial question of law for

consideration.

"Whether

the

lower

appellant

court

is

justified in passing the impugned ju