Karnataka High Court
Kakkali Shanmukhappa S/O Late Basappa vs Kakkali Ningamma W/O Kakkali on 3 July, 2024
-1-
NC: 2024:KHC-D:9056
RSA No. 100735 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100735 OF 2015 (PAR-)
BETWEEN:
1. KAKKALI SHANMUKHAPPA S/O LATE BASAPPA
AGE: 68 YEARS, OCC: AGRICULTURIST,
2. KAKKALI SHIVAPPA S/O KAKKALI SHANMUKHAPPA
AGE: 32 YEARS, OCC: AGRICULTURIST,
3. KAKKALI NINGAMMA
W/O KAKKALI SHANMUKHAPPA
AGE:42 YEARS, OCC: AGRICULTURIST
ALL ARE R/AT BHUJANGANAGAR,
SANDUR TALUK, DIST: BELLARY-583119.
...APPELLANTS
(BY SRI B.B.MALLIGEWAD & SRI P.N.HATTI, ADVOCATES)
AND:
1. KAKKALI NINGAMMA
W/O KAKKALI SHANMUKHAPPA
AGE: 53 YEARS, OCC: HOUSEHOLD
Digitally signed 2. THIPAMMA @ THIPPAKKA W/O PRAHLLAD
by SAROJA AGE: 36 YEARS, OCC: HOUSEHOLD,
HANGARAKI BOTH R/AT C/O THIPPANAMARADI,
Location: HIGH SANDUR TALUK, DIST:BALLARI-583119.
COURT OF
KARNATAKA
DHARWAD 3. THUKARAM NAIDU S/O M.S.NAIDU
BENCH AGE: 45 YEARS, R/AT:14TH WARD,
DHARWAD CHAPPARADAHALI, TQ: SANDUR TOWN,
DIST: BALLARI.
4. SHILPA W/O PRASHANT
AGE: 31 YEARS, OCC: AGRICULTURIST,
R/AT: PALTHUR POST, URAVAKONDA TQ.
DIST:ANANTAPUR, ANDRAPRADESH(AP)
...RESPONDENTS
(BY SRI S.M.KALWAD FOR R1 & R2;
R3 SERVED & UNREPRESENTED;
R4 NOTICE IS HELD SUFFICIENT)
-2-
NC: 2024:KHC-D:9056
RSA No. 100735 of 2015
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 13.02.2015 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, KUDLIGI IN R.A.NO.4/2014,
RESTORE THE JUDGMENT AND DECREE DATED 12.09.2013 PASSED
BY THE CIVIL JUDGE AND JMFC, SANDUR IN O.S.NO.5/2008.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the defendant
Nos.1 to 3 under Section 100 of the Code of Civil
Procedure, 19081 challenging the judgment and decree
dated 13.02.2015 passed in R.A.No.04/2014 by the Court
of Senior Civil Judge and JMFC, Kudligi2 and the judgment
and decree dated 12.09.2013 passed in O.S.No.05/2008
by the Court of Civil Judge and JMFC, Sandur3.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
3. The plaintiffs claiming to be the wife and daughter
of the defendant No.1 filed a suit in OS No.05/2008
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
NC: 2024:KHC-D:9056
claiming for partition and separate possession. The
husband of the plaintiff No.1 and father of the plaintiff
No.2 has been arrayed as defendant No.1. The defendant
No.2 and 4 are born from the wedlock of defendant Nos.1
and 3. The purchaser of one of the suit properties from
defendant No.1 is arrayed as defendant No.5.
4. The defendants entered appearance in the suit
and contested the case of the plaintiffs, wherein the
relationship of the plaintiffs with the first defendant was
disputed.
5. The Trial Court, by judgment and decree dated
12.09.2013, held that the plaintiffs have failed to prove
that they are the wife and daughter of the 1st defendant
and dismissed the suit.
6. Being aggrieved, the plaintiffs preferred R.A
No.4/2014. The defendants entered appearance before
the First Appellate Court and contested the proceedings.
The First Appellate Court, upon a re-appreciation of the
NC: 2024:KHC-D:9056
oral and documentary evidence on record held that the
plaintiffs have proved that the plaintiff No.1 is the legally
wedded wife of the 1st defendant and plaintiff No.2 is
their daughter. The First Appellate Court allowed the
appeal filed by the plaintiffs, decreed the suit and passed
the following order:
i. "The Regular Appeal filed by the appellants is
hereby allowed.
ii. The judgment and decree passed by the learned
Civil Jude and JMFC., Sandur in O.S No.05/2008
dt: 12.9.2013 is hereby set aside.
iii. The suit of the plaintiff is decreed and the
plaintiff No:1 is the legally wedded wife of
defendant No:1 and plaintiff No:2 is the
daughter of plaintiff No:1 and defendant No:1.
iv. Both the plaintiff No:1 and 2 having half share in
the suit schedule properties and the defendant
No:1 and 4 having 1/5th share in the suit
schedule properties.
v. The defendant No:5 is the bonafide purchaser he
can take the share of defendant No.1 after final
decree proceedings.
vi. Draw preliminary decree accordingly.
vii. Send the copy of the judgment along with lower
Court records to the lower Court."
NC: 2024:KHC-D:9056
7. Being aggrieved the present second appeal is
filed by defendant No.1 to 3.
8. Heard the submissions of the learned counsel for
the appellants and learned counsel for the respondents.
9. It is submitted that the 1st plaintiff herein had
filed O.S No.6/2010 against the 1st defendant for
maintenance. In the said suit, a finding has been recorded
that the 1st plaintiff herein is the legally wedded wife of
the 1st defendant and the suit for maintenance was
decreed, which was upheld by the First Appellate Court in
R.A No.37/2013, as also by this Court vide order dated
08.11.2023 passed in RSA No.100736/2015.
10. It is clear and forthcoming from the
aforementioned that the finding has already been
recorded in O.S No.6/2010 which has attained finality as
noticed above, that the 1st plaintiff is the legally wedded
wife of the 1st defendant. Further the First Appellate
Court, noticing the material on record has held that the
NC: 2024:KHC-D:9056
2nd plaintiff is the daughter of the 1st plaintiff and 1st
defendant.
11. The appellants have failed in demonstrating
that the said finding recorded by the First Appellate Court
is in any manner erroneous and liable to be interfered
with by this Court. Further, having regard to the fact that
the finding has been recorded in O.S No.6/2010, which
has attained finality that the 1st plaintiff is the legally
wedded wife of the 1st defendant, the question of
considering the same contention once again in the
present appeal does not arise.
12. The First Appellate Court has found that, the
plaintiffs No.1 and 2 are the wife and daughter of the 1st
defendant and has rightly awarded a share in the
properties and the said aspect of the matter is not
seriously disputed in the present appeal. In view of the
aforementioned, the above appeal is dismissed as being
devoid of merit at the stage of admission itself.
NC: 2024:KHC-D:9056
13. In view of the dismissal of the above appeal, I.A
No.2/2015 for stay is also dismissed.
Sd/-
JUDGE
PJ,PMP
CT:GSM
