Karnataka High Court
Lakkappa S/O Late Kashappa vs Bhagamma W/O Madivalappa on 9 January, 2024
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NC: 2024:KHC-K:399
RSA No. 200205 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200205 OF 2019
(PAR SPR-POSS)
BETWEEN:
LAKKAPPA S/O LATE KASHAPPA,
AGE: 44 YEARS OCC: AGRI,
R/O MAGANAGERA,
TQ: JEWARGI,
DIST: KALABURAGI-585310.
...APPELLANT
(BY SRI. BHIMASHANKAR S/O BASANNA, ADVOCATE)
AND:
BHAGAMMA W/O MADIVALAPPA,
Digitally signed AGE: 47 YEARS, OCC: AGRI,
by SACHIN
Location: HIGH
R/O BORAGI,
COURT OF TQ: SINDAGI,
KARNATAKA DIST: BIJAPUR-586128.
...RESPONDENT
(BY SRI. HULEPPA HEROOR, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING
TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE PASSED IN R.A.01/2013 DATED 06.03.2019 BY THE
LEARNED PRINCIPAL DISTRICT JUDGE AT KALABURAGI
ARISING OUT OF THE JUDGMENT AND DECREE PASSED IN O.S
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NC: 2024:KHC-K:399
RSA No. 200205 of 2019
NO.195/2005 DATED 03.08.2012 BY THE LEARNED SENIOR
CIVIL JUDGE AT JEWARGI BY DISMISSING THE SUIT AS
PRAYED FOR OR MATTER MAY BE REMITTED BACK FOR FRESH
CONSIDERATION TO GIVE FINDING ON ALL ISSUES OR ANY
OTHER NECESSARY ORDERS AS THE COURT DEEMS FIT UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE MAY KINDLY
BE PASSED TO MEET THE ENDS OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the defendant challenging the
judgment and decree dated 06.03.2019 passed in RA.No.1
of 2013 on the file of Principal District, Kalaburagi,
dismissing the appeal and confirming the judgment and
decree dated 03.08.2012 passed in OS.No.195 of 2005 on
the file of the Senior Civil Judge, Jewargi, decreeing the
suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
NC: 2024:KHC-K:399
3. It is the case of the plaintiff that, the plaintiff and
defendant are the cousins and the father of the plaintiff
and father of the defendant are brothers and constitute
the joint family. It is the case of the plaintiff that, the
defendant refused to share the property belonging to her
father, and accordingly, plaintiff has filed suit, in OS No.5
of 1998 before the Civil Judge, (Jr.Dn), Jewargi and said
suit was dismissed on 08.07.1999 for non prosecution and
thereafter, the plaintiff had approached the defendant
along with her well wishers on 12.04.2001 and made a
demand in respect of suit schedule property and same was
refused by the defendant and as such the plaintiff has filed
suit in OS No.195 of 2005 on the file of the Trial Court
seeking partition and separate possession insofar as
subject land is concerned.
4. After service of summons, defendant entered
appearance and filed detailed written statement and
specifically denied that plaintiff is the legal representative
of Madivalappa- uncle of the defendant and as such,
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sought for dismissal of the suit on the ground of res-
judicata and accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court has
formulated issues for its consideration.
6. In order to establish their case, the plaintiff has
examined five witness as PW1 to PW5 and got marked 15
documents as Exs.P1 to P15. On the other hand,
defendant has examined three witnesses as DW1 to DW3
and produced 08 documents as Exs.D1 to D8.
7. The trial Court, after considering the material on
record, by its judgment and decree dated 03.08.2007
decreed the suit of the plaintiff holding that the plaintiff is
entitled for half share in the suit schedule property and
being aggrieved by the same, the defendant has preferred
Regular Appeal in RA.No.1 of 2013 on the file of First
Appellate Court and said appeal was resisted by the
plaintiff. The First Appellate Court, after re-appreciating
NC: 2024:KHC-K:399
the facts on record, by its judgment and decree dated
06.03.2019 dismissed the appeal and confirmed the
judgment and decree passed by the trial Court in
OS.No.195 of 2015. Being aggrieved by the same the
appellant/defendant has preferred this Regular Second
Appeal under Section 100 of CPC.
8. I have heard Sri Bhimashankar, learned counsel
appearing for the appellant and Sri Huleppa Heroor,
learned counsel appearing for the respondent. Perused the
material on record.
9. Sri Bhimashankar, learned counsel for the
defendant/appellant submits that the both the Courts
below have not considered the material on record as
defendant disputed the relationship between the plaintiff
and uncle of defendant-Madivalappa. It is submitted that
the based on the suggestion made by the learned counsel
to PW1 during the course of the cross-examination, is an
implied admission as to proof of relationship and the
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finding is perverse and accordingly, sought for interference
of this court.
10. Sri Huleppa Heroor, learned counsel for the
respondent sought to justify the impugned judgment and
decree passed by the courts below.
11. On careful examination of the original records as well
the finding recorded by the courts below would indicate
that, the relationship between the parties is set out as
follows:
Lakkappa (dead)
Kashappa Madivalappa
(Dead) (Dead)
Lakkappa Bhagamma
(Appellant) (Respondent)
12. Perusal of the Genealogical Tree would indicate that
the original propositus Lakkappa had two children namely,
Kashappa and Madivalappa. Defendant is the son of
Kashappa and Bhagamma is the daughter of Madivalappa.
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Defendant has disputed the relationship, however, perusal
of PW2 and PW3 would indicate that, the said witnesses
deposed that, the plaintiff is the daughter of Madivalappa.
On careful examination of the evidence on record would
indicate that the suit schedule properties are the joint
family properties and the plaintiff is the daughter of
Madivalappa, hence, plaintiff is entitled for half share in
the suit schedule property. In that view of the matter,
taking into account the finding recorded by the both the
Courts below, I am of the opinion that, no interference is
called for in this appeal as both the courts confirmed the
share of the plaintiff. Accordingly, the appeal is dismissed
as the defendant has not made out case for formulation of
substantial question of law under Section 100 of CPC.
Sd/-
JUDGE
SB
