Bheemappa S/O. Yelubenchi ... vs Yelubenchi Maliyappa @ Sanna ...
2022 Latest Caselaw 19 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 03RD DAY OF JANUARY 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.5451/2012 (PAR)

BETWEEN

SRI BHEEMAPPA
S/O YELUBENCHI MALIYAPPA
@ SANNA MALIYAPPA,
AGE: 60 YEARS.
OCC: AGRICULTURE,
R/O. HAMPINAKATTI VILLAGE,
DANAPURA POST, TQ: HOSPET,
DIST: BELLARY-583201.
                                            ... APPELLANT

(BY SRI HANUMANTHREDDY SAHUKAR, ADV.)

AND

SRI YELUBENCHI MALIYAPPA
@ SANNA MALIYAPPA
S/O. HOSAKERAPPA SINCE DECEASED HIS LRS.,

1(A). SMT.DYAMAVVA
      CLAIMING TO BE SECOND W/O
      OF LATE YELUBENCHI MALIYAPPA
      @ SANNA MALIYAPPA
      AGE : 50 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O NEAR RAMALI MAZID,
                             2




      IIIRD WARD, CHITWADGI,
      HOSAPETE DIST: BALLARI.

1(B). SRI ANAND
      S/O LATE YELUBENCHI MALIYAPPA
      AGE : 30 YEARS,
      OCC: AGRICULTURE,
      R/O NEAR RAMALI MAZID,
      IIIRD WARD, CHITWADGI,
      HOSAPETE DIST: BALLARI.

1(A). MANGALAMMA
      D/O LATE YELUBENCHI MALIYAPPA
      W/O MALLAPPA, AGE : 32 YEARS,
      OCC: HOUSEWIFE,
      R/O TARANAGAR, TQ: SANDUR,
      DIST: BALLARI.
                                           ... RESPONDENTS

(BY   SRI LAXMAN T.MANTAGANI AND
      SRI NAGARAJ J. APPANNAVAR, ADVTS.)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE PRAYING THIS COURT TO SET ASIDE THE
JUDGMENT AND DECREE DATED 19.01.2012 IN R.A.NO.81/2009+
PASSED BY THE LEARNED FAST TRACK COURT-III AT HOSAPET
CONFIRMING THE JUDGMENT AND DECREE DATED 24.03.2009 IN
O.S.NO.58/2007 PASSED BY THE LEARNED PRL.CIVIL JUDGE
SR.DN. & JMFC, HOSPET AND DECREE THE SUIT AS PRAYED, BY
ALLOWING THE ABOVE APPEAL WITH COSTS, IN THE INTEREST OF
JUSTICE AND EQUITY.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                 3




                        : JUDGMENT :

Though this appeal is listed for admission, with the

consent of learned counsel appearing for both the

parties, the same is taken up for final disposal.

2. The captioned regular second appeal is filed

by the unsuccessful plaintiff who is assailing the

concurrent judgment and decree of the Courts below.

3. The facts leading to the above said case is as

under:

The appellant claimants to be a son born to

respondent/defendant through one Smt.Gonibasamma.

The appellant filed a suit for partition and separate

possession in O.S.No.58/2007 demanding share in the

suit schedule properties on the ground that the

defendant is his father. The appellant claims that, he is

born from the wedlock of defendant with one late

Smt.Gonibasamma. Appellant further contended that the

suit schedule properties are the joint family ancestral

property and he has legitimate share in the suit schedule

properties.

4. On receipt of summons, the respondent

/defendant appeared and contested the proceedings and

stoutly denied the status of appellant/plaintiff. The

respondent/defendant also specifically denied alleged

marriage with Smt.Gonibasamma. A specific contention

was taken by respondent/defendant that he was married

to one Dyamavva and their marriage was solemnized 35

years back and from the said wedlock, he blessed with

three sons and a daughter and therefore refuting the

allegations alleged in the plaint, respondent/defendant

contended that, the appellant/plaintiff is a totally

stranger and on these set of grounds the

respondent/defendant prayed for dismissal of the suit.

5. The Trial Court having appreciated the oral

and documentary evidence on record, answered the

issue No.1 in the negative by recording a finding that the

appellant has failed to establish that he is the son of

respondent/defendant born through one

Smt.Gonibasamma and consequently dismissed the suit.

     6.        The      First       Appellate        Court        on    re-

appreciating          the    oral   and      documentary          evidence

affirming the conclusion and reasons assigned by the

Court of first instance, has also come to the

conclusion that the appellant/plaintiff has failed to

establish his relationship with the defendant.

Affirming the conclusions of the Trial Court, the First

Appellate Court has proceeded to dismiss the appeal.

7. Being aggrieved by the concurrent findings

of both the Courts below, the plaintiff is before this

Court.

8. Heard the learned counsel appearing for

the appellant and learned counsel appearing for the

respondents. Perused the judgments rendered by

both the Courts below.

9. The appellant claims to be the son of the

respondent/defendant. His contention is that the

respondent/defendant and his mother

Smt.Gonibasamma lived as husband and wife and he

was born from the said wedlock and therefore is

claiming his legitimate share in the suit schedule

properties. Both the courts on re-appreciation of oral

and documentary evidence have arrived at a

conclusion that there is absolutely no evidence

indicating that late Smt.Gonibasamma and original

defendant lived as husband and wife. The learned

Judge having examined the voters' list which in-fact

is a slender evidence, even otherwise found that

Smt.Gonibasamma was not at all residing with

original defendant. The learned judge was of the

view that, if really the original defendant and

Smt.Gonibasamma were residing as husband and

wife, the same would have reflected in the voters'

list as early as 1980. Learned Judge has also taken

judicial note of Ex.D.10, which is mortgage deed

executed by Smt.Gonibasamma. In the said

document, Smt.Gonibasamma is described as

daughter of one Doopadahalli Bhimappa. In the

absence of cogent and clinching evidence, the

learned Trial Judge has come to the conclusion that

the plaintiff has failed to establish his relationship

with defendant. The learned judge was of the view

that, without seeking relief of declaration and

without primarily establishing his relationship with

original defendant, the suit for partition and separate

possession filed by the appellant is not at all

maintainable. On these set of reasoning the learned

judge has dismissed the suit and the same is

confirmed by the First Appellate Court.

10. Though several grounds were urged by

learned counsel appearing for the appellant, I would

find that there is not even slender evidence let in by

the appellant to prove his relationship with original

defendant. The plaintiff in the present case on hand

was required to discharge his initial burden by

establishing that the defendant and one

Smt.Gonibasamma lived as husband and wife and

they were recognized and accepted by the society as

husband and wife. There is absolutely no material

indicating the above said factual aspects. Further

there is also no evidence adduced by the appellant to

demonstrate that the appellant is the son of

Smt.Gonibasamma. The Trial Court while examining

the voters' list which is produced at Ex.D.5, which is

of the year 2007, has also come to the conclusion

that the appellant has also failed to establish that he

is the son of Smt.Gonibasamma. On perusal of

voters' list of the year 2007, the trial Court found

that the appellant is shown as son of one

Hanumavva.

11. If this relevant document is taken into

consideration, then I am of the view that, the

judgment and decree passed by the Courts below

would not suffer from any infirmities. There is

absolutely no clinching evidence to indicate that

appellant/plaintiff is the son of Smt.Gonibasamma

and that he was born from the wedlock of defendant

with one Smt.Gonibasamma who lived as husband

and wife.

12. The grounds urged in the present appeal

memo, would not give rise to any substantial

question of law. The appeal is devoid of merits and

accordingly the same stands dismissed.

Sd/-

JUDGE EM