Karnataka High Court
Laxmibai W/O Shivappa Since Deceasded ... vs Maruti S/O Shivappa on 23 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 7073 OF 2013 (PAR)
C/W
REGULAR SECOND APPEAL NO. 7072 OF 2013 (DEC)
IN RSA NO.7073/2013:
BETWEEN:
LAXMIBAI W/O SHIVAPPA
Digitally signed SINCE DECEASED BY LRS.
by SACHIN
Location: HIGH
COURT OF 1. SIDDAMMA D/O LATE SHIVAPPA
KARNATAKA W/O KALLAPPA,
SINCE DECEASED BY HER LR'S
1(A) REBIKA W/O SANJUKUMAR,
AGED ABOUT 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
1(B) REETA W/O ISAK,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
TQ. BHALKI, DIST. BIDAR-585413.
1(C) RESHMA D/O KALLAPPA,
AGED ABOUT 28 YEARS,
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
2. MALLAMMA D/O LATE SHIVAPPA,
W/O SURENDRA,
OCC: HOUSEHOLD,
R/O KHANAPUR, TQ. BHALKI,
DIST. BIDAR.
3. DEVIDAS S/O SHIVAPPA
SINCE DECEASED BY LRS'S
3(A) YOHAN S/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(B) JEEVAN S/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(C) SHIVAKANTH S/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(D) ASHOK S/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
3(E) KAYAN S/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 25 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
3(F) SARASWATI W/O LATE DEVIDAS
@ DEVENDRA,
AGED ABOUT 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
4. RAMANNA S/O SHIVAPPA,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR.
5. RAJKUMAR S/O SHIVAPPA,
AGED ABOUT 52 YEARS,
OCC: GOVERNMENT SERVANT,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR.
...APPELLANTS
(BY SRI GANESH S. KALBURGI, AND
SRI ANANTH S. JAHAGIRDAR, ADVOCATES)
AND:
MARUTI S/O SHIVAPPA,
AGED ABOUT 60 YEARS,
OCC: GOVERNMENT SERVICE,
R/O H. NO. 2-90, CHRISTIAN COLONY,
MAILOOR, BIDAR.
...RESPONDENT
(BY SRI RAVI B. PATIL, ADVOCATE FOR C/R)
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 21.11.2012 PASSED IN
R.A.NO.62/2011 ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE, BIDAR, CONFIRMING THE JUDGMENT AND DECREE
DATED 9.6.2008 PASSED IN O.S.NO.33/2000 ON THE FILE OF
THE SENIOR ADDITIONAL CIVIL JUDGE, BIDAR, AND TO
GRANT ANY OTHER APPROPRIATE RELIEF.
IN RSA NO.7072/2013:
BETWEEN:
LAXMIBAI W/O SHIVAPPA
SINCE DECEASED BY LRS.
1. SIDDAMMA D/O LATE SHIVAPPA
W/O KALLAPPA,
SINCE DECEASED BY HER LR'S
1(A) REBIKA W/O SANJUKUMAR,
AGED ABOUT 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
1(B) REETA W/O ISAK,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
TQ. BHALKI, DIST. BIDAR-585413.
1(C) RESHMA D/O KALLAPPA,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
2. MALLAMMA D/O LATE SHIVAPPA,
W/O SURENDRA,
OCC: HOUSEHOLD,
R/O KHANAPUR, TQ. BHALKI,
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
DIST. BIDAR.
3. DEVIDAS S/O SHIVAPPA
SINCE DECEASED BY LRS'S
3(A) YOHAN S/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(B) JEEVAN S/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(C) SHIVAKANTH S/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR- 585413.
3(D) ASHOK S/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
3(E) KAYAN S/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 25 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR-585413.
3(F) SARASWATI W/O LATE DEVIDAS @ DEVENDRA,
AGED ABOUT 60 YEARS,
OCC: HOUSEHOLD WORK,
R/O MALCHAPUR, TQ. BHALKI, DIST.
BIDAR-585413.
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
4. RAMANNA S/O SHIVAPPA,
AGED ABOUT 58 YEARS,
OCC: AGRICULTURE,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR.
5. RAJKUMAR S/O SHIVAPPA,
AGED ABOUT 52 YEARS,
OCC: GOVERNMENT SERVANT,
R/O MALCHAPUR, TQ. BHALKI,
DIST. BIDAR.
...APPELLANTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE)
AND:
MARUTI S/O SHIVAPPA,
AGED ABOUT 60 YEARS,
OCC: GOVERNMENT SERVICE,
R/O H. NO. 2-90, CHRISTIAN COLONY,
MAILOOR, BIDAR.
...RESPONDENT
(BY SRI RAVI B. PATIL, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 21.11.2012 PASSED IN
R.A.NO.61/2011 ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE, BIDAR, CONFIRMING THE JUDGMENT AND DECREE
DATED 9.6.2008 PASSED IN O.S.NO.175/1999 ON THE FILE OF
SENIOR ADDITIONAL CIVIL JUDGE, BIDAR, AND TO GRANT
ANY OTHER APPROPRIATE RELIEF.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 7073 of 2013
C/W RSA No. 7072 of 2013
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
These two appeals are against the common judgment
and decree dated 09.06.2008 passed in O.S.No.175/1999
and O.S.No.33/2000 by the Court of the Additional Civil
Judge (Sr.Dn.), Bidar (hereinafter referred to as the 'Trial
Court') confirmed by the Court of the Additional District
and Sessions Judge, Bidar (hereinafter referred to as the
'First Appellate Court'), in a common judgment and decree
dated 21.11.2012 in corresponding appeals i.e.,
R.A.No.61/2011 and R.A.No.62/2011
2. Suit in O.S.No.175/1999 is filed by one Maruti
S/o Shivappa against one Smt.Laxmibai and her three
sons, namely Devidas, Ramanna and Rajkumar for the
relief of declaration of ownership and possession over the
suit schedule property bearing old panchayat No.2-89 and
new Municipal No.2-90 situated at Christian Colony,
Mailoor, Bidar, bounded by -
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East : House of Rajamma Sangu;
West : Road;
North : Pathway i.e., Road; and
South : House of Tukarama @ Tukappa.
Contending inter alia that he is the son of one Shivappa
and Mariamma, belonging to Christian community, both of
whom died in the year 1981 and 1991 respectively. The
said suit property was in ownership, possession and
enjoyment of said Shivappa till his lifetime and upon his
demise, plaintiff became owner by inheritance and his
name was mutated in the revenue records on 18.10.1988.
That the defendants having no right of any nature
whatsoever and belonging to scheduled caste community,
residing in Malchapur village of Bhalki taluk, with an evil
eye on the suit property with the help of defendant No.4
who is serving as KSRP Constable, taking undue
advantage of his official position was causing illegal
interference and obstructions into the lawful and peaceful
possession of the suit property by the plaintiff. In
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furtherance therefore on 16.07.1999 they had even denied
the title of the plaintiff over the suit property giving raise
to cause of action constraining him to file the above suit.
3. Defendants who appeared on service of
summons filed written statement denying the plaint
averments. It is contended that the plaintiff had wrongly
shown the name of the husband of Defendant No.1 and
father of defendant No.4 as 'alleged' Shivappa with a mala
fide intention to grab the suit schedule property and
another open plot. It is further contended that defendant
No.1 is the legally wedded wife of deceased Shivappa and
defendant Nos.2 to 4 are the sons of said Shivappa and
defendant No.1. It is further contended that the plaintiff is
also son of said Shivappa, born to him through his first
wife Mariamma. Thus, it is contended that the plaintiff as
well as the defendants are the joint owners and possessors
of the suit house along with the open plot and that they
have their specific share, right and interest over the same.
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4. O.S.No.33/2000 is filed by the aforesaid
defendants in O.S.No.175/1999 seeking relief of partition
and separate possession of 1/5th share in respect of
following properties:
a) A residential house bearing Municipal No.2-90
measuring 60x40 feet consisting of four rooms roofed
with RCC and open space bounded by-
East : House of Rajamma;
West : Marthdevi;
North : House of Shivaram; and
South : House of Dasharath.
b) A house bearing Municipal No.4-129 measuring 30x40
feet consisting of four rooms roofed with RCC and
open space bounded by -
East : Road;
West : Marthidevi;
North : House of Shivaram;
South : House of Dashrath.
Both the houses are situated at Christian Colony, Mailoor,
Bidar.
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5. It is contended in the said suit that defendant
(who is the plaintiff in O.S.No.175/1999) is the son of
Shivappa, born through his first wife Mariamma, who died
in the year 1991 and they constituted a members of a
joint family. As such, they are all the legal heirs of
deceased Shivappa being entitled for specific share in the
suit schedule properties.
6. After service of summons, defendant (who is
the plaintiff in O.S.No.175/1999 filed a detailed written
statement denying the plaint averments and contended
that plaintiffs in the said suit have no concern whatsoever
with the family of the deceased Shivappa, who is his father
and they have no share, right, title and interest in any of
the properties. Hence sought for dismissal of the suit.
7. The Trial court framed the following issues for
its consideration in both the suits -
in OS No.175/1999 :
1) Whether the plaintiff proves that, he is absolute
and exclusive owner and possessor of suit house
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bearing Panchayat No.2-89, new bearing
Municipal No.2-90 situated at Christian Colony,
Mailoor, Bidar?
2) Whether plaintiff further proves that, he is the
entitled for the relief of injunction sought for?
3) Whether valuation of the suit and court fee paid is
proper?
4) What order?
in OS No.33/2000 :
1) Whether the plaintiffs proves that, plaintiff No.4 is
the wife of Shivappa and plaintiff No.1 to 3 and
Plaintiff No.4(a) and 4(b) are the children of
Shivappa and plaintiff No.4?
2) Whether the plaintiffs further proves that, the suit
properties are the joint family properties and
ancestral properties of the plaintiffs and
defendant?
3) Whether the plaintiffs further proves that, after
the death of Shivappa, plaintiffs and defendant
jointly inherited the suit properties as joint
owners?
4) Whether the suit is bad for the non-joinder of
necessary parties?
5) Whether the plaintiffs have cause of action to file
the suit?
6) Whether the defendants prove that plaintiffs have
not valued the suit property and correct court
fees not paid?
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8. By order dated 02.06.2005 the Trial Court
clubbed both O.S.No.175/1999 and O.S.No.33/2000,
recorded common evidence. Plaintiff in O.S.No.175/1999
examined himself as PW.1 and two other witnesses as
PW.2 and PW.3 and exhibited 12 documents marked as
Ex.P.1 to Ex.P.12. On behalf of the defendants, defendant
No.4 in O.S.No.175/1999 examined himself as DW.1 and
four other witnesses have been examined as DW.2 to
DW.5 and exhibited seven documents marked as Ex.D1 to
Ex.D7.
9. On consideration of the evidence, the Trial
Court answered Issue Nos.1, 2, 3 framed in
O.S.No.175/1999 in the affirmative and Issue No.1 to 6
and 8 in the negative and Issue No.7 as redundant framed
in O.S.No.33/2000. Consequently, by a common judgment
dated 09.06.2008, decreed the suit in O.S.No.175/1999,
declaring the plaintiff therein to be the absolute owner of
the suit schedule properties and further granted relief of
permanent injunction restraining the defendants from
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interfering with the possession and enjoyment of suit
property while dismissing the suit in O.S.No.33/2000 filed
by the plaintiffs therein (who are the defendants in
O.S.No.175/1999).
10. Aggrieved by the said common judgment and
decree passed by the Trial Court, defendants in
O.S.No.175/1999 who are plaintiffs in O.S.No.33/2000
filed regular appeal in R.A.No.61/2011 and
R.A.No.62/2011 before the First Appellate Court. On
consideration of the grounds urged the First Appellate
Court framed the following points for its consideration :
1) Whether the plaintiff in OS No.175 of 1999 who is
the defendant in OS No.33 of 2000 proves that he is
owner of in lawful possession of the suit property and
interference alleged in the suit?
2) Whether the plaintiff in OS No.175 of 1999 who is
the defendant in OS No.33 of 2000 is entitled for
declaration and injunction as sought?
3) Whether the appellants/defendants in OS No.175 of
1999 and plaintiffs in OS No.33 of 2000 prove that
the deceased Laxmibai is the wife of Shivappa and
father of the plaintiff in OS No. 175 of 1999 and their
marriage and defendants no.1 to 3 are their children
and the suit properties are the joint family and
ancestral properties, as alleged by them?
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4) Whether the plaintiffs in OS No.33 of 2000 who are
the defendants in OS No.175 of 1999 are entitled for
partition and separate possession as sought?
5) Whether I.A. No. IV filed under Order 41 rule 27 of
CPC is entitled to be allowed?
6) Whether the judgment and decree passed by the
Trial Court is illegal, erroneous and the same is not
in accordance with law and thereby liable to be
interfered with?
7) What order or decree?
and on re-appreciation of the evidence answered Point
Nos.1 and 2 in the affirmative, Point Nos.3 to 6 in the
negative and consequently dismissed the appeals.
Aggrieved by the same, present appeal in
R.S.A.No.7072/2013 is filed as against the judgment and
decree passed in O.S.No.175/1999 and R.A.No.61/2011
and R.S.A.No.7073/2013 is filed against the judgment and
decree passed in O.S.No.33/2000 and R.A.No.62/2011.
11. This court, by order dated 13.08.2015 admitted
the aforesaid appeals for consideration on the following
substantial questions of law :
1) Whether the First Appellate Court has committed
serious illegality in dismissing the application in
which the acceptable documents had been placed
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in support of the proof of the paternity of the
appellants as the children of the deceased
Shivappa?
2) Whether both the Courts have committed serious
illegality in misreading the material oral evidence
on record and thus the impugned judgments are
perverse and illegal?"
12. The learned counsel for the appellants
reiterating the grounds urged in the memorandum of
appeal submitted;
(a) That the Trial Court and the First Appellate
Court have grossly erred in not appreciating the material
evidence placed on record by the parties in establishing
the relationship of Shivappa with Laxmibai to whom
appellants were born.
(b) That the marriage of Shivappa with Laxmibai as
his second wife had taken place much prior to the year
1956, when there was no legal prohibition or impediment
for contracting second marriage. That without adverting to
this aspect of the matter, the Trial Court and the First
Appellate Court have declined even to accept the evidence
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of the witnesses, namely DW.2 to DW.5, who are
examined on behalf of the defendants to establish the
proof of marriage between Shivappa and said Laxmibai.
(c) That DW.2 to DW.5 who were examined are the
locals and also relatives complying with the requirement of
Section 50 of the Evidence Act.
(d) That appellants had filed an application under
Order 41 Rule 27 of Code of Civil Procedure seeking
production of additional document in the nature of transfer
certificate of Rajkumar, the defendant No.4 who is the
Police Constable showing his date of birth as 1970 and a
copy of Election Card which would reveal the date of birth
of Rajkumar as of year 1969. The First Appellate Court
rejected the said application on erroneous grounds and if
the said application was allowed, the result of the case
would have gone in favor of the appellants proving the
appellants as the children of deceased Shivappa. Hence
seeks for answering substantial question of law in favor of
the appellants.
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13. Per contra, learned counsel appearing for the
respondents justifying the judgment and decree passed by
the Trial Court and confirmed by the First Appellate Court
submitted that;
(a) The Trial Court and First Appellate Court have
meticulously adverted to the evidence led in by the
defendants to prove their relationship which they have
miserably failed.
(b) That one of the appellants/defendants is an
employee in the Karnataka State Police Force and another
defendant is also working as a Pump operator. That
nothing prevented them from producing the document
when the trial was on and since there was no compliance
to the requirement of the law for production of additional
documents, the rejection of the same by the Trial Court
cannot be found fault with.
(c) Since the relationship of the parties have not
been established, no fault can be found with the judgment
and decree passed by the Trial Court and the First
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Appellate Court. As such, the substantial questions of law
framed don't arise for consideration.
14. Heard and perused the records.
15. There is no dispute of the fact that plaintiff-
Maruti is the son of deceased Shivappa and his wife
Mariamma. It is also not in dispute that the suit schedule
property in O.S.No.175/1995 belonged to the said
Shivappa. The dispute is only with regard to the claim
being made by Laxmibai and her sons Devidas, Ramanna
and Rajkumar, who are the defendant Nos.1 to 4 in O.S.
No.175/1999 and plaintiffs in O.S.No.33/2000. The case
pleaded by the appellant is that Shivappa married
Laxmibai prior to the year 1956 where there was no legal
impediment to contract second marriage to prove this
aspect of the marriage the appellants have examined their
witnesses as DW1, DW3, and DW4. The Trial Court and
the First Appellate Court have extensively adverted to the
pleadings, oral and documentary evidence produced by
the defendants in support of their claim of they being the
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wife and children of deceased Shivappa respectively. The
Trial Court at paragraphs 23 to 28 of its common
judgment has referred to the oral and documentary
evidence produced by the defendants and at paragraphs
29 and 30 has given the following findings :
"29. But on perusal of evidence of D.W.2
referred above, it is seen that, at the time of
marriage of Laxmibai and Shivappa he was 12 to 15
years of age, his age is shown as 65 years on the
date of filing of affidavit in December 2006. Hence
his birth during 1941 if he is age about 12-15 years
at the time of said marriage, the said marriage is
during 1953 to 57. The D.W.3 his age is shown as 60
years, in the affidavit dated 14-3-2007. Hence his
birth is during the year 1941. In the cross-
examination, he deposed that, he was 18 years at
the time of marriage of defendant No.1 Laxmibai,
that means the said marriage is during 1959. The
D.W.4 age is shown as 56 years in July 2007 in the
affidavit filed by way of evidence. Hence his birth is
in the year 1951. He deposed that, he attended the
marriage of Laxmibai about 40 to 45 years back as
on the date of his evidence recorded in July 2007.
Hence the said marriage of Laxmibai is in between
1962-67.
30. On perusal of these events, according to
D.W.2, the marriage of Laxmibai in between the
1953-57. According to D.W.3 the marriage of
Laxmibai is during 1959. According to D.W.4 the
Laxmibai marriage is during 1962 to 1967. It is fully
discussed above."
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and has further gone on to hold that there is no
corroboration in the evidence of DW.2 and DW.2 with
regard to the year of marriage between Shivappa and
Laxmibai as alleged. The aforesaid finding of the Trial
Court on the factual aspect of the matter has been
re-appreciated and confirmed by the First Appellate Court
warranting no interference.
16. Production of additional document is governed
under the provisions of Order 41 Rule 27 of Code of Civil
Procedure which read as under:
"27. Production of Additional evidence in
Appellate Court.-
(1) The parties to an appeal shall not be
entitled to produce additional evidence, whether
oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or
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(b) the Appellate Court requires any
document to be produced or any witness to be
examined to enable it to pronounce judgment, or
for any other substantial cause, the Appellate Court
may allow such evidence or document to be
produced, or witness to be examined."
(2) Whenever additional evidence is allowed
to be produced by an Appellate Court, the Court
shall record the reason for its admission".
17. The First Appellate Court while answering Point
No.5 at paragraph 19, has held as under :
"19. Regarding the application, it is urged by
the learned counsel for the appellants that they
have intend to produce the documents as he is
unable to produce the documents due to wrong
advise of the advocate and they are touches the
relationship of the parties and they have produced
the transfer certificate of Rajkumar, who is the
police constable, it shows the year of his date of
birth as 1970 and copy of the election card is also
produced along with this which reveals that the date
of birth of Rajkumar/DW-1 is of 1969 and there are
so many corrections in the documents and it is also
not visible, which school has issued the same and it
is true copy and the documents produced by the
appellant are contrary to each other. This apart, the
other documents are of subsequent in nature and
the above said documents will not establish or
confer the paternity of the appellants in this case
when they have failed to prove the same. This
apart, it is the duty of the appellants to show the
cogent and convincing reason that why they have
not produced the above said documents before the
court and they have diligently exercise their power
before the Trial Court and if it is rejected by the
Trial Court, when they are in the custody of the
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appellant. It is pertinent to note that why the
appellant has not produced his service record to
show that his father name is Shivappa and
appointment order though he is working in KSRP.
The leaned counsel for the appellants has relied
upon a decisions reported in 2011 Karnataka 193
between Appireddigari Chowdappa Vs. Smt.
Narayanamma and AIR 2006 (NOC) 535
(Karnataka) between Deveerawwa & others Vs.
Gangawa & another, wherein it is held that the
additional evidence can be received if they are
essential for just decision of the case and
illegitimate children are deemed to be legitimate for
the share is concerned. There is no dispute with
regard to the principles laid down by the Hon'ble
High Courts. However, in the instant case, the
documents are not essential to prove the
relationship of the appellants with Shivappa and
also their paternity and the marriage of their
mother Laxmibai with Shivappa, the father of the
respondent of these appeals. Admittedly, the
appellants able to establish the fact that they are
illegitimate children of Shivappa, then only they will
get a share and they have also not pleaded the
same in their case. Hence, the decisions relied by
the learned counsel for the appellants are not
applicable to the case on hand and it will not
determine the marriage of Laxmibai, the mother of
the appellants with Shivappa and their paternity in
this case. Having regard to the same, the reason
assigned by the appellants are not proper and
correct and the said document is also not establish
their legal status and relationship of marriage of
Laxmibai with Shivappa as alleged in their case.
Hence, the application filed by the appellants under
Order 41 rule 27 of CPC is deserves to be dismissed
and accordingly it is dismissed. The appellants are
not entitled for partition and separate possession of
the property holding that the respondent/defendant
is entitled to declaration of ownership and
permanent injunction sought in the plaint. Hence, I
answer above points accordingly."
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18. As seen above, the appellants have not
assigned reason for non production of the documents
before the Trial Court except stating the alleged wrong
advise of their Advocate. The First Appellate Court has
found the documents sought to be produced are
subsequent in nature and would not establish or confirm
the relationship of the appellants with deceased Shivappa.
The Trial Court has also found that no reasons are
assigned for defendant No.4, who is admittedly working in
the KSRP, not producing his service records. If at all,
defendant No.4 in his service record had shown the
deceased Shivappa as his father, there is no impediment
for him to produce his service records. Since, the
appellants have not established they being children of
deceased Shivappa, the Trial Court and the First Appellate
Court were specified in dismissing the suit for partition.
19. No infirmity or illegality can be found with the
reasoning and conclusion arrived at by the Trial Court
which is confirmed by the First Appellate Court. Therefore,
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NC: 2024:KHC-K:7804
the substantial questions of law raised above are answered
accordingly.
20. Appeals are accordingly dismissed.
Sd/-
(M.G.S.KAMAL)
JUDGE
SN
CT:PK
