Sri Mahanandappa S/O Fakkirappa ... vs Smt Savakka W/O Mahanandappa ...
2022 Latest Caselaw 7967 Kant

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                                   RSA No. 100631 of 2020




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 02ND DAY OF JUNE, 2022

                         BEFORE
         THE HON'BLE MR JUSTICE E.S.INDIRESH
 REGULAR SECOND APPEAL NO. 100631 OF 2020 (PAR-)

BETWEEN:


     SRI. MAHANANDAPPA S/O FAKKIRAPPA RAICHUR
     AGE: 79 YEARS, OCC: AGRICULTURE,
     R/O: LAKKUNDI, KARIYAVAR ONI,
     TQ: and DIST: GADAG-582115.


                                                ...APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

AND:


1.   SMT SAVAKKA W/O MAHANANDAPPA RAICHUR
     AGE: 74 YEARS, OCC: HOMEMAKER,
     R/O: LAKKUNDI,
     TQ: & DIST: GADAG-582115.

2.   SRI.VIRUPAXAPPA S/O MAHANANDAPPA RAICHUR
     AGE: 44 YEARS, OCC: COOLIE,
     R/O: LAKKUNDI,
     TQ: & DIST: GADAG-582115.

3.   SMT. BASAVVA W/O AMARESH BANAKAL
     AGE: 50 YEARS, OCC: HOMEMAKER,
     R/O: HULAKOTI FARMERS
     SPINNING MILL QUARTERS,
     TQ: & DIST: GADAG-582101.

4.   SRI. GANGADHAR S/O MAHANANDAPPA RAICHUR
     AGE: 38 YEARS, OCC: AGRICULTURE,
     R/O: KARIYAVAR ONI, LAKKUNDI,
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                                      RSA No. 100631 of 2020


    TQ: & DIST: GADAG-582115.



                                                ...RESPONDENTS
(SRI. C.S.SHETTAR, ADVOCATE FOR R1 TO R3;
R4 SERVED AND UN-REPRESENTED)

     THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:06.07.2020 PASSED IN R.A.NO.31/2018
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF
JUDICIAL MAGISTRATE, GADAG, DISMISSING THE APPEAL AND
CONFIRMING   THE   JUDGMENT     AND   DECREE   DTD:19.01.2018,
PASSED IN O.S. NO.142/2006 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS-I
COURT, GADAG, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.

     THIS RFA COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:


                          ORDER

This Regular Second Appeal is filed by the defendant

No.1, assailing the Judgment and Decree dated

06.07.2020 in R.A.No.31/2018 on the file of the

Principal Senior Civil Judge and CJM Court, Gadag,

confirming the Judgment and Decree dated

19.01.2018 in O.S.No.142/2006 on the file of the

RSA No. 100631 of 2020

Principal Civil Judge, Gadag, decreeing the suit of the

plaintiff.

2. For the sake of convenience the parties to this appeal

are referred to as per their ranking before the trial

Court.

3. It is the case of the plaintiff that, the plaintiff No.1 is

the wife of the defendant No.1 and their marriage

was solemnized as per the Hindu-Hanamath sub-

caste. It is stated in the plaint that the plaintiff No.2

is the son of the defendant No.1 and the plaintiff

No.1, and the plaintiff No.3 is their daughter. It is

further stated in the plaint that the defendant No.2 is

not related to the defendant No.1. The plaintiffs have

averred that, Smt. Mallavva is not the wife of the

defendant No.1 and no marriage had taken place

between the said Mallavva and the defendant No.1.

The defendant No.2 is not the child born to the said

Mallavva through defendant No.1. It is further stated

in the plaint that, the defendant No.1 has filed

RSA No. 100631 of 2020

M.C.No.13/1970 before the Civil Judge (Sr. Dn.),

Dharwad, and the same was re-numbered as

M.C.No.9/1971 and the said petition came to be

dismissed on 28.08.1972. Being aggrieved by the

same, the defendant No.1 has filed MFA No.713/1973

and the said appeal came to be dismissed on

19.07.1974. The plaintiffs have averred that the

defendant No.1 is having joint family properties and

therefore, the plaintiffs have share in the said suit

schedule properties. It is also further averred in the

plaint that, the defendant No.1, in collusion with the

defendant No.2, has filed O.S.No.144/2004, seeking

partition and separate possession in respect of the

suit schedule properties and the said suit came to be

decreed in the Lok Adalat on 29.10.2004, and the

said suit is a collusive one and not binding on the

plaintiffs. Accordingly, the plaintiffs have filed

O.S.No.142/2006, seeking 3/4th share in the suit

schedule properties.

RSA No. 100631 of 2020

4. On service of notice, the defendants entered

appearance and filed written statement. The

defendant No.1 denied the relationship with the

plaintiff No.1 and also stated that the plaintiff Nos.2

and 3 are not born in wedlock with the plaintiff No.1

and accordingly, defendant No.1 sought for dismissal

of the suit. The defendant No.2 has filed separate

written statement contending that the defendant

No.2 is the son of the defendant No.1 and Smt.

Mallavva, and he further submitted that, the

Judgment and Decree in O.S.No.144/2004 is valid

and accordingly, sought for dismissal of the suit.

5. Based on the pleadings on record, the trial Court

framed issues for its consideration. In order to

establish their case, the plaintiffs have examined

three witnesses as P.W.1 to P.W.3 and produced 13

documents and same were marked as Ex.P.1 to

Ex.P.13. On the other hand, defendants have

examined 03 witnesses as D.W.1 to D.W.3 and

RSA No. 100631 of 2020

produced 03 documents and the same were marked

as Ex.D.1 to Ex.D.3. The trial Court, after considering

the material on record, by its Judgment and Decree

dated 19.01.2018, decreed the suit holding that the

plaintiffs are entitled for 3/4th share and defendant

No.1 is entitled for 1/4th share in the suit schedule

properties.

6. Feeling aggrieved by the same, the defendant No.1

has filed R.A.No.31/2018 before the First Appellate

Court and the plaintiffs have resisted the appeal. The

respondent No.4/defendant No.2 placed ex-parte.

The First Appellate Court, after considering the

material on record, by its Judgment and Decree

dated 06.07.2020, dismissed the appeal and

consequently confirmed the Judgment and Decree

dated 19.01.2018 passed in O.S.No.142/2006.

Feeling aggrieved by the Judgment and Decree

passed by the Courts below, the defendant No.1 has

preferred this Regular Second Appeal.

RSA No. 100631 of 2020

7. I have heard Sri. Hanumanthareddy Sahukar, learned

counsel appearing for the appellant and Sri.

C.S.Shettar, learned counsel appearing for the

respondent Nos.1 to 3. Respondent No.4 is served

and un-represented.

8. Sri. Hanumanthareddy Sahukar, learned counsel

appearing for the appellant, argued that the finding

recorded by both the Courts, that the decree in

O.S.No.144/2004 is void and not binding on the

plaintiffs is incorrect, in view of the bar under Order

XXIII Rule 3-A of the Code of Civil Procedure. He

further contended that, the plaintiff No.1 left the

matrimonial home way back in the year 1960 and

therefore, the children born to the plaintiff No.1 are

not the children of the defendant No.1 and therefore,

he contended that the allotment of the share in

favour of them is incorrect. Emphasizing on the

illegal relationship of the plaintiff No.1, Sri.

Hanumanthareddy Sahukar submitted that, both the

RSA No. 100631 of 2020

Courts below ought to have relegated the parties to

go for DNA test and therefore, the finding recorded

by both the Courts below is contrary to the law. In

that view of the matter, he referred to the Judgment

of the Apex Court in the case of Triloki Nath singh

Singh Vs. Anirudh Singh (dead) through legal

representatives and others, reported in (2020) 6

SCC 629.

9. Per contra, Sri. C.S.Shettar, learned counsel

appearing for the respondents sought to justify the

impugned Judgment and Decree passed by the

Courts below. He invited the attention of this Court to

the proceedings in M.C.No.9/1971 and MFA

No.713/1972 and submitted that, in view of the

proceedings in the aforementioned cases, the

impugned Judgment and Decree passed by the trial

Court is just and proper. He also refers to the

documents at Ex.P.10 and Ex.P.13 and argued that

the finding recorded by both the Courts below are

RSA No. 100631 of 2020

just and proper which cannot be interfered with by

exercising the jurisdiction under Section 100 of Code

of Civil Procedure.

10. Having heard the learned counsel appearing for the

parties, I have carefully considered the finding

recorded by both the Courts below. Perused the

records.

11. Undisputably, plaintiff No.1 is the wife of the

defendant No.1. I have carefully examined the

pleadings on record and the documents produced by

the parties, particularly with regard to the

M.C.No.9/1971, wherein the said petition was filed by

the defendant No.1 seeking dissolution of marriage

and the said proceeding came to be dismissed by the

Civil Judge, Gadag by order dated 28.08.1972. Issue

No.5 in the said proceedings reads as under:

                 "Whether     the     opponent           No.1     was
            pregnant   by   her     married       life    with    the
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                                            RSA No. 100631 of 2020

applicant, when she went to her parents house?"

12. The finding recorded by the trial Court is affirmative

holding that the plaintiff No.1 was carrying at the

time of separating from the matrimonial home.

13. It is also forthcoming from the records, particularly

from Ex.P.11, wherein, the defendant No.1 has

challenged the order dated 28.08.1972 in

M.C.No.9/1971 in MFA No.713/1972. The Division

Bench of this Court, after considering the material on

record, dismissed the appeal preferred by the

defendant No.1 and as such, affirmed the order

passed by the Trial Court in M.C.No.9/1971. In the

said M.C.No.9/1971, D.W.1 was Savakka (mother of

plaintiff Nos.2 and 3). I have also noticed from

Ex.D.3-Marriage Invitation of the plaintiff No.2,

wherein, the name of the father of the plaintiff No.2

was shown as Mahanandappa (defendant No.1). The

trial Court, after appreciating the material on record,

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RSA No. 100631 of 2020

particularly the evidence adduced by the parties and

the documents referred to herein above and taking

into consideration the earlier proceedings filed by the

defendant No.1 relating to the dissolution of the

marriage, rightly came to conclusion that the plaintiff

Nos.2 and 3 are the children born to plaintiff No.1

and the defendant No.1 and as such, careful

consideration of the evidence would indicate that the

plaintiffs are entitled for the share in the suit

schedule properties. Insofar as the argument

advanced by the learned counsel appearing for the

appellant to relegate the parties for DNA test,

recently the Hon'ble Apex Court in the case of Ashok

Kumar Vs. Raj Gupta and others, reported in

(2022) 1 SCC 20 has held that the direction for DNA

test cannot be ordered for flimsy ground, unless it

warrants to prove the legitimacy of the parties. The

Hon'ble Apex Court has held that the burden is on

the litigating party to prove his case by adducing

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RSA No. 100631 of 2020

proper evidence in support of his plea and Court

cannot compel the party to prove his case in the

manner suggested by the contesting party, subject to

drawing of adverse inference, if so warranted in the

facts of the case. In the instant case, the relationship

between the parties has already reached finality in

view of the Judgment passed by this Court in MFA

No.713/1972 dated 20.06.1974 and in that view of

the matter, I do not find any acceptable ground as

urged by Sri. Hanumathareddy Sahukar, to interfere

with the impugned Judgment and Decree passed by

the Courts below.

14. As regards the arguments advanced by the learned

counsel referring to the fact that the prayer made in

the plaint is not maintainable is concerned, in this

regard, careful consideration of the material on

record, would indicate that as per Ex.P.13,

O.S.No.144/2004 was filed by the defendant No.2

against the defendant No.1 and the said suit was

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RSA No. 100631 of 2020

settled before the Lok Adalat on 29.10.2004. The list

of events is very much significant as the suit is filed

on 09.08.2004 and the compromise petition was

executed on 29.10.2004 and based on the said

compromise, the suit came to be decreed before the

Lok Adalat. That apart, the plaintiffs herein have not

been arraigned as the parties in O.S.No.144/2004

despite the fact that the defendant No.1 was well

aware about the proceedings in M.C.No.9/1971 and

MFA No.713/1972. This would clearly establish the

malafide intention of the defendant and has proved

the fact that the proceeding in O.S.No.144/2004 is a

collusive suit and not binding on the plaintiffs. In this

regard, though the learned counsel appearing for the

appellant places reliance on the Judgment of the

Apex Court in Triloki Nath Singh (supra), in the

said case, the compromise was challenged by the

stranger to the proceedings in the suit. However, in

the present case, the defendant No.1 has filed

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RSA No. 100631 of 2020

M.C.No.9/1971 and MFA No.713/1972 and in both

the proceedings the plaintiff No.1 has been arraigned

as respondent No.1 and the aforementioned

proceedings went against the defendant No.1

(Mahanandappa) and therefore, the plaintiffs are not

strangers to the proceedings and as such, the facts

of the said case is not applicable to the facts on

record.

15. Perusal of the evidence of the P.W.2 and P.W.3 would

indicate that, the plaintiff No.1 is the legally wedded

wife of the defendant No.1 and the plaintiff Nos.2 and

3 are the children born to plaintiff No.1 and

defendant No.1 and in that view of the matter, I am

of the view that both the Courts below have rightly

appreciated the entire material on record on merits

and arrived at a just conclusion that the plaintiffs are

entitled for share in the suit schedule properties and

accordingly, taking into consideration the finding

recorded by the Courts below, I am of the view that

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RSA No. 100631 of 2020

the appellant herein has not made out a case for

framing of substantial question of law as required

under Section 100 of Code of Civil Procedure.

Accordingly, the appeal is dismissed at the stage of

admission itself.

Sd/-

JUDGE

SVH