Karnataka High Court
Chandrakant S/O Basavanappa Nellur vs Shivanand S/O Chandrakant Nellur on 20 February, 2024
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RSA No. 200290 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200290 OF 2021 (PAR)
BETWEEN:
CHANDRAKANT
S/O BASAVANAPPA NELLUR,
AGE: 57 YEARS,
OCC: AGRICULTURE AND HAMALI WORK,
R/O: KAPANOOR,
TQ: AND DIST: KALABURAGI-585104.
...APPELLANT
(BY SRI. RAMCHANDRA K., ADVOCATE)
AND:
SHIVANAND
Digitally
S/O CHANDRAKANT NELLUR,
signed by
SACHIN
AGE: 27 YEARS,
Location: OCC: STUDENT,
HIGH COURT
OF R/O: DUDHANI,
KARNATAKA
NOW C/O SHARANAPPA SAWATHKED,
NANDA NIVAS, RAMTEERTH LAYOUT,
NEAR ALAND CHECK POST,
KALABURAGI-585302.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE
PASSED BY THE III ADDL.DIST. AND SESSIONS JUDGE
KALABURAGI IN R.A.NO.124 OF 2017 DATED 04.01.2021 AND
ALSO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
II ADDL.SENIIOR CIVIL JUDGE KALABURAGI IN
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RSA No. 200290 of 2021
O.S.NO.161/2012 DATED 4.9.2017 AND CONSEQUENTLY THE
SUIT OF THE PLAINTIFF MAY KINDLY BE DISMISSED AS NOT
MAINTAINABLE AND ALLOW THE COSTS THROUGHOUT THE
PROCEEDINGS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by defendant/Appellant,
assailing the judgment and decree dated 04.01.2021 in
R.A.No.124/2017 on the file of III Additional District and
Sessions Judge, Kalaburagi, confirming the judgment and
decree dated 04.09.2017 in O.S.No.161/2012 on the file of
II Addl. Senior Civil Judge, Kalaburagi, decreeing the suit
of the plaintiff holding that the plaintiff is entitled for half
share in the suit schedule property.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, the plaintiff is
the son of defendant and the plaintiff and his mother were
thrown out from the matrimonial house by the defendant
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when the plaintiff was aged about one year old and
accordingly, the plaintiff has filed suit seeking half share in
the suit schedule property in O.S.No.161/2012.
4. After service of notice, the defendant entered
appearance and filed detailed written statement disputing
the fact that the plaintiff is not a son of defendant and
further took-up a contention that the plaintiff has not
included certain joint family properties in the plaint and
accordingly, sought for dismissal of the suit.
5. The trial Court on the basis of the pleadings on
record framed the issues for its consideration.
6. In order to establish their case, plaintiff has
examined four witnesses as PW.1 to PW.4 and marked 11
documents as Ex.P.1 to Ex.P.11. Defendant examined
himself as DW.1 and produced 04 documents as Ex.D1 to
Ex.D4.
7. The Trial Court after considering the material on
record, vide judgment and decree dated 04.09.2017,
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decreed the suit of the plaintiff. Being aggrieved by the
same, the defendant has preferred appeal in
R.A.No.124/2017 before the First Appellate Court and the
appeal was resisted by the plaintiff. The First Appellate
Court after considering the material on record, dismissed
the appeal by judgment and decree dated 04.01.2021 by
confirming the judgment and decree in OS No.161/2012.
Feeling aggrieved by the same, the defendant has
preferred the present second appeal.
8. I have heard Sri Ramchandra K., learned
counsel appearing for the appellant.
9. It is the submission of the learned counsel
appearing for the appellant that though the defendant has
disputed the relationship with the plaintiff and no
acceptable documents have been submitted by the plaintiff
to prove that the plaintiff is the son of defendant and the
plaintiff has submitted the DNA test report submitted in
Crl..Misc.No.115/2021 on the file of the Family Court,
Kalaburagi and said document is not a sole document to
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arrive at a conclusion that the plaintiff is the son of the
defendant and accordingly, sought for interference of this
Court.
10. Having heard the learned counsel appearing for
the appellant and on careful examination of the finding
recorded by both the Courts below would indicate that the
defendant has disputed the relationship between the
plaintiff and in this regard the plaintiff has produced
documents namely ExP.1 wherein it is shown that the
name of the father of the plaintiff as the defendant and
also Ex.P.10 the certified copy of the DNA test report
which has been marked in Crl.Misc.No.115/2021 which
would clearly establish the fact that the defendant is the
father of the plaintiff. In that view of the matter, both the
Courts below have rightly come to the conclusion that the
plaintiff is the son of the defendant and accordingly the
plaintiff is entitled for half share in the suit schedule
property and perusal of the finding recorded by both the
Courts below would indicate that there is no dispute that
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the schedule property is the joint family property of
plaintiff and defendant. Accordingly, the finding recorded
by both the Courts below are just and proper. Hence, I am
of the view that no interference is called for in this appeal
and appeal is dismissed at the stage of admission itself. It
is also to be noted that the appellant has not made out a
case to frame substantial question of law as required
under Section 100 of Code of Civil Procedure. In the
result, appeal fails and is accordingly dismissed.
11. In view of dismissal of appeal, I.A.No.1/2021
does not survive for consideration. Accordingly, it is
dismissed.
Sd/-
JUDGE
SN
