Karnataka High Court

Smt.Basawwa vs Shri.Mudakappa on 3 April, 2024

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                                                         NC: 2024:KHC-D:6085-DB
                                                       RFA No. 100300 of 2016




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 3RD DAY OF APRIL, 2024

                                             PRESENT

                             THE HON'BLE MR JUSTICE E.S.INDIRESH

                                               AND

                        THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                         REGULAR FIRST APPEAL NO.100300 OF 2016 (DEC/PAR)


                   BETWEEN:

                   1.    SMT. BASAWWA
                         W/O. MUDAKAPPA NANDAPPANAVAR,
                         AGE: 46 YEARS,
                         OCC: AGRICULTURE,
                         R/O: BALIGER-583236,
                         TALUKA: YELBURGA,
                         DIST: KOPPAL.

                   2.    SHRI. BALESH
SHIVAKUMAR
                         S/O. MUDAKAPPA NANDAPPANAVAR,
HIREMATH
                         AGE: 19 YEARS,
Location: HIGH
COURT OF
KARNATAKA
                         OCC: STUDENT,
DHARWAD BENCH
Date: 2024.04.06
10:27:50 +0530
                         R/O: BALIGER-583236,
                         TALUKA: YELBURGA,
                         DIST: KOPPAL.

                   3.    SHRI. ANANDAPPA
                         S/O. MUDAKAPPA NANDAPPANAVAR,
                         AGE: 17 YEARS,
                         OCC: STUDENT,
                         BEING MINOR REPRESENTED BY HIS
                         NEXT FRIEND NATURAL MOTHER
                         SMT. BASAWWA-APPELLANT NO.1,
                         R/O: BALIGER-583236,
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                                     NC: 2024:KHC-D:6085-DB
                                 RFA No. 100300 of 2016




     TALUKA: YELBURGA,
     DIST: KOPPAL.
                                             ...APPELLANTS
(BY SRI.C.S.SHETTAR, ADVOCATE)


AND:

1.   SHRI. MUDAKAPPA
     S/O. BARAMAPPA NANDAPPANAVAR,
     AGE: 55 YEARS,
     OCC: AGRICULTURE,
     R/O: BALIGER-583236,
     TALUKA: YELBURGA,
     DIST: KOPPAL.

2.   GURAWWA
     ALLEGED BE WIFE OF
     MUDAKAPPA NANDAPPANAVAR,
     AGE: 45 YEARS,
     OCC: AGRICULTURE,
     R/O: BALIGER-583236,
     TALUKA: YELBURGA,
     DIST: KOPPAL.

                                          ...RESPONDENTS

(BY SRI.SHRIHARSH A.NEELOPANT, ADVOCATE)


     THIS RFA IS FILED UNDER SEC.96 R/W ORDER XLI RULE
1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE
DATED 08.01.2014 PASSED IN O.S.NO.12/2011 ON THE FILE
OF THE SENIOR CIVIL JUDGE, YELBURGA, DISMISSING THE
SUIT FILED FOR DECLARATION, PARTITION AND SEPARATE
POSSESSION.


      THIS APPEAL COMING ON FOR ORDERS, ALONG WITH
I.A. NO.1/2023, THIS DAY, E.S.INDIRESH, J., DELIVERED
THE FOLLOWING:
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                                         NC: 2024:KHC-D:6085-DB
                                       RFA No. 100300 of 2016




                          JUDGMENT

This appeal is preferred by the plaintiffs in O.S.

No.12/2011 on the file of the Senior Civil Judge at

Yelburga (for short, hereinafter referred to as the 'Trial

Court'), challenging the judgment and decree dated

08.01.2013 passed by the Trial Court dismissing the

aforesaid suit of the plaintiffs.

2. For the sake of convenience, the parties in this

appeal are referred to as per their status and rankings

before the Trial Court.

3. The plaintiffs have filed suit seeking relief of

partition and separate possession in respect of the

schedule properties inter alia sought for a declaration that

defendant No.2 is not the legally wedded wife of defendant

No.1. It is the case of the plaintiffs that plaintiff No.1 is the

legally wedded wife of defendant No.1 and in their

wedlock, plaintiffs No.2 and 3 were born. Therefore, it is

the contention of the plaintiffs that, the plaintiffs are

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entitled for a share in the suit schedule properties. Hence,

the plaintiffs filed O.S. No.12/2011 on the file of the Trial

Court for the relief as prayed in the plaint.

4. After service of notice, defendants entered

appearance and filed detailed written statement, denying

the averments made in the plaint. Defendant No.1 has

denied the relationship as claimed by plaintiffs in the

plaint. Hence, sought for dismissal of the suit.

5. The Trial Court, based on the pleadings on

record, formulated the following issues for its

consideration:

"1. Whether the plaintiffs prove that suit properties are ancestral properties of the parties?

2. Whether plaintiffs further proves that defendant No.2 is not the wife of defendant No.1?

3. Whether plaintiffs further proves that they are entitle declaration as prayed for?

4. Whether defendant No.1 proves that he is exclusive owner of the suit properties and given

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up his rights in favour of his daughters as "Arishina Kumkum" on 24-03-2011?

5. Whether defendants further prove that the suit of the plaintiff is suffers from non-joinder of necessary parties?

6. Whether plaintiffs are entitled partition as prayed for?

7. What order or decree?"

In order to substantiate their case, the plaintiffs examined

three witnesses as P.W.1 to P.W.3 and produced 12

documents which were marked as Exs.P.1 to P.12. The

defendants examined six witnesses as D.W.1 to D.W.6 and

produced 21 documents which were marked as Exs.D.1 to

D.21. The Trial Court, after considering the material on

record, by its judgment and decree dated 08.01.2014

dismissed the suit. Feeling aggrieved by the same, the

plaintiffs have filed this appeal.

6. Along with the memorandum of appeal, the

plaintiffs have filed I.A. No.1/2023 seeking DNA Test of

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defendant No.1 by a medical expert. The said application

is opposed by respondent No.1 by filing objections.

7. We have heard Sri. C.S.Shettar, learned

counsel appearing for the appellants and Sri. Shriharsh A.

Neelopant, learned counsel appearing for the respondents

No.1 and 2.

8. It is contended by the learned counsel

appearing for the appellants that the finding recorded by

the Trial Court requires to be interfered with on the sole

ground that the plaintiffs have produced ample material

before Trial Court viz., Exs.P.8 & P.9 (School Certificates)

and (Election ID) Ex.P.11 as well as the National Rural

Employment Guarantee Scheme Passbook (Ex.P.12) to

prove the relationship between the plaintiffs with

defendant No.1, however, the said documents have not

been properly appreciated by the Trial Court and

accordingly, the learned counsel appearing for the

appellants prayed for allowing the appeal. He also made

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submission with regard to application in I.A. No.1/2023

seeking DNA Test of defendant No.1.

9. Per contra, Sri. Shriharsh A. Neelopant, learned

counsel appearing for respondents No.1 and 2 justified the

impugned judgment and decree passed by the Trial Court.

He further contended that P.Ws.2 and 3 have categorically

admitted that defendants No.1 and 2 are husband and wife

and therefore, the Trial Court has properly appreciated the

material on record and therefore, he pleaded that, no

interference is called for in this appeal.

10. Emphasising on the objections filed to I.A.

No.1/2023, Sri. Shriharsh A. Neelopant, learned counsel

appearing for the respondents No.1 and 2 submitted that

in the event if the application is allowed, it will go against

the right to privacy of defendant No.1 and accordingly

sought for dismissal of the said application.

11. In the light of the submissions made by the

learned counsel appearing for the parties, we have given

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our anxious consideration to the findings recorded by the

Trial Court as well as perused the original records. In order

to adjudicate the appeal on merits, we feel that the

following points have to be considered in this appeal:

i) Whether the plaintiffs have proved their relationship with defendant No.1?

ii) Whether the judgment and decree passed by the Trial Court requires interference in this appeal.

iii) What order?

12. In the light of the submissions made by the

learned counsel appearing for the parties, a careful

examination of the record would indicate that, as averred

in the plaint, the plaintiffs stated that plaintiff No.1 is

claimed to be the wife of defendant No.1 and in their

wedlock, plaintiffs No.2 and 3 were born. Plaintiffs have

also stated that the suit schedule properties are joint

family properties consisting of defendant No.1 along with

the plaintiffs and accordingly the plaintiffs sought for

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partition in the suit properties. On the other hand, it is the

case of the defendants, denying relationship with the

plaintiffs. In that view of the matter, on careful

examination of the oral and documentary evidence on

record, wherein P.Ws.2 and 3 have categorically admitted

that defendants No.1 and 2 are the husband and wife.

Defendant No.1 has also deposed before the Court that

defendant No.2 is his legally wedded wife. However, in

order to substantiate the relationship between the

plaintiffs with defendant No.1, the plaintiffs have produced

Exs.P.10 to P.12 which would substantiate that the name

of defendant No.1 is shown as the husband of plaintiff

No.1.

13. That apart, plaintiffs have filed I.A. No.1/2023

seeking DNA Test of defendant No.1 from a competent

Medical Expert. Taking into consideration the finding

recorded by the Trial Court, we are of the opinion that the

finding recorded by the Trial Court, at paragraph 11 of the

impugned judgment, cannot be accepted on the sole

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ground that plaintiffs No.2 and 3 were not studying in the

schools at Lakkalakatti village and the said finding

recorded by the Trial Court cannot be the sole basis to

dismiss the suit filed by the plaintiffs. We have carefully

examined the deposition of P.W.1 who had categorically

stated that she is the wife of defendant No.1. In that view

of the matter, taking into consideration the arguments

advanced by the learned counsel appearing for the parties

and the evidentiary value of the documents as produced

by the parties, we are of the view that the appellants

herein have made out a case for interference for

remanding the matter to the Trial Court for further

adjudication of the matter by the Trial Court, to discern

the truth.

14. Without expressing any opinion on the merits of

the case relating to the relationship between the plaintiffs

as well as defendant No.1, we feel that I.A. NO.1/2023

shall be considered by the Trial Court on merits and

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adjudicate the entire case on merits. Accordingly, the

points for determination favour the plaintiffs.

15. In the result, we pass the following:

ORDER

i) The appeal is allowed.

ii) The judgment and decree dated 08.01.2014 in O.S. No.12/2011 passed by the Trial Court is set aside, and the matter is remanded to the Trial Court for fresh consideration, after providing fair opportunity to the parties.

iii) Needless to state that the Trial Court shall consider the application - I.A. No.1/2023 filed by the appellant herein and give a finding taking into consideration the statement of objections filed by the respondents herein.

iv) Parties are directed to co-operate for early disposal of the suit, and as the parties are represented through their learned counsel, they are directed to appear before the Trial Court on 30.05.2024 at 11.00 a.m.