Pavitrabai D/O Yallappa Parnkar ... vs Vittal S/O Yamanappa Parnakar And ...
2022 Latest Caselaw 9146 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 20TH DAY OF JUNE 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                    RSA No.200217/2022

BETWEEN:

1.    PAVITRABAI
      D/O YALLAPPA PARNKAR,
      AGE: 56 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. TIKOTA,
      TQ. & DIST: VIJAYAPUR-586101.

2.    ROOPA D/O. YALLAPPA PARNAKAR,
      AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
      R/O. TIKOTA,
      TQ. & DIST: VIJAYAPUR-586101.

3.    SUNITA W/O. BABALU PARNAKAR,
      AGE: 36 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O. TIKOTA,
      TQ. & DIST: VIJAYAPUR-586101.

4.    POOJA D/O. BABALU PARNAKAR,
      AGE: 11 YEARS, OCC: STUDENT,
      R/O. TIKOTA,
      TQ. & DIST: VIJAYAPUR-586101.

5.    SANKET S/O BABALU PARNAKAR,
      AGE: 14 YEARS, OCC: STUDENT,
      R/O. TIKOTA,
      TQ. & DIST: VIJAYAPUR-586101.
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       APPELLANT NO.4 & 5 ARE MINORS
       REP. BY U/G. THEIR MOTHER,
       APPELLANT NO.3.
       SUNITA W/O. BABALU PARNAKAR,
       AGE: 36 YERS, OCC: HOUSEHOLD WORK,
       R/O. TIKOTA,
       TQ. & DIST: VIJAYAPUR-586101.

                                              ... APPELLANTS

(BY SRI.AJAY KUMAR ASHOK KUMAR, ADVOCATE)


AND:

1.     VITTAL S/O. YAMANAPPA PARNAKAR,
       AGE: 39 YEARS, OCC: TAILOR,
       R/O. DARGA JAIL, VIJAYAPUR,
       DIST: VIJAYAPUR-586101.

2.     SHEKAWWA
       W/O. RAMACHANDRA PARNAKAR,
       AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
       R/O. TIKOTA,TQ. & DIST: VIJAYAPUR-586101.

3.     MUKESH S/O. RAMACHANDRA PARNAKAR,
       AGE: 32 YEARS, OCC: COOLIE,
       R/O. TIKOTA, TQ. & DIST: VIJAYAPUR-586101.

                                            ... RESPONDENTS

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THE APPEAL. BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.05.2020 IN R.A.NO.29/2018 PASSED BY LEARNED IV ADDL.
DISTRICT JUDGE VIJAYAPURA.     AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED 02.01.2018 IN O.S.NO.59/2015
PASSED BY LEARNED II ADDL. SENIOR CIVIL JUDGE VIJAYAPUR
AND ETC.

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

This appeal is filed by the defendants against the

concurrent findings of both the Courts below vide judgment and

decree dated 02.01.2018 passed by the II Additional Senior

Civil Judge, Vijayapura in OS No.59/2015 and confirmed by the

judgment and decree dated 08.05.2020 passed in RA

No.29/2018 by the IV Additional District Judge, Vijayapura.

2. The plaintiffs have filed a suit for partition and

separate possession in OS No.59/2015. According to plaintiffs,

the propositus of the family was the Hajappa Paranakara and he

had a wife by name Yamanavva. They had a daughter by

name Saynavva, who was Devdasi and she had two children by

name Yallappa and Yamuinabai. The defendants represent the

branch of Yallappa, while the plaintiffs claiming to be

representing the Branch of Yamunabai. The suit schedule

properties admittedly originally owned by Saynavva and the

plaintiffs claim half (1/2) share and the trial Court after

appreciating the oral and documentary evidence has decreed the

suit.

3. Being aggrieved by the said judgment and decree,

the defendants have filed regular appeal in RA No.29/2018

before the First Appellate Court. The First Appellate Court after

appreciating the oral and documentary evidence, dismissed the

appeal by confirming the judgment and decree passed by the

trial Court.

4. Against the said concurrent findings, this second

appeal came to be filed under Section 100 of Code of Civil

Procedure, 1908 ('CPC' for short).

5. Heard the arguments and the perused the records.

6. The main contention raised by the

appellants/defendants is that, the Saynavva had only one son by

name Yellappa and Yamunabai was not at all the daughter of

Saynava. This was the defence set-up by the defendants. But,

the trial Court has considered these aspects and recorded a

finding that from 1964-65 up to 2001-02, the name of Saynavva

and Yamunabai as well as Yallappa came to be mutated in the

record of rights. Further this fact is evident from Ex.P7

(Aakarband). Apart from that, from EX.P5 it is evident that

Yallappa and Yamunabai mortgaged the suit property to the

bank and availed loan on 30.09.1961. If at all Yamunabai is no

way related to Yallappa or Saynavva, question of she jointly

mortgaging the property with Yallappa does not arise at all.

7. Apart from that, the defendants/appellants herein

have also tried to rely on evidence of PW.3 & PW.4. The trial

Court has analised their evidence in detail and rejected their

evidence by considering their demeanor and their evading type

of answers. Hence, after appreciating the oral and documentary

evidence, the trial Court has rightly came to a conclusion that

the plaintiffs represent the branch of Yamunabai and granted

half (1/2) share.

8. The First Appellate Court after re-appreciating the

oral and documentary evidence in detail has dismissed the

appeal by confirming the judgment and decree passed by the

trial Court.

9. Under these facts and circumstances, both the

Courts below have consistently and concurrently held that the

plaintiffs are representing the branch of Yamunabail and

granted equal share. As such, the judgment and decree passed

by the courts below does not suffer from any illegality or

infirmity so as to call for any interference by this Court.

10. The provisions of Section 50 of the Evidence Act

cannot be made applicable to the facts and circumstances of the

case in hand, in view of the available material evidence. Under

such circumstances, no substantial question of law is involved in

this case to entertain this appeal. Hence, the appeal is devoid of

any merits and needs to be rejected. Accordingly, I proceed to

pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

KGR*