Karnataka High Court
Krishnamurthy vs Chandrashekar on 2 September, 2024
-1-
NC: 2024:KHC:35698
RSA No. 2178 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 2178 OF 2023 (PAR)
BETWEEN:
1. KRISHNAMURTHY
S/O. LATE BILIYA NAIKA @ BELLANAIKA,
AGED ABOUT 69 YEARS,
R/O. WARALLI,
MUTTUVALLI VILLAGE,
THIRTHAMATTUR POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT,
PIN-577 434.
2. SMT. KAMALAMMA
W/O. DUGGAPPA NAIKA,
D/O. LATE BILIYA NAIKA @ BELLANAIKA,
AGED ABOUT 67 YEARS,
R/O. MUTTINAKOPPA VILLAGE AND POST,
N.R. PURA TALUK,
Digitally signed by CHIKMAGALURU DISTRICT,
SHARMA ANAND
CHAYA PIN-577 134.
Location: High Court
of Karnataka
3. MANJUNATH
S/O. LATE BILIYA NAIKA @ BELLANAIKA,
AGED ABOUT 64 YEARS,
R/O. WARALLI,
MUTTUVALLI VILLAGE,
THIRTHAMATTUR POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT,
PIN-577 434.
...APPELLANTS
(BY SRI. PRASANNA D P.,ADVOCATE)
-2-
NC: 2024:KHC:35698
RSA No. 2178 of 2023
AND:
CHANDRASHEKAR
S/O. SHASHIKALA,
(MANJUNATHA IN DISPUTE)
AGED ABOUT 37 YEARS,
R/O. KUNDARI NANTOOR VILLAGE,
KENDALUBAILU POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT,
PIN-577 434.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.10.2023
PASSED IN RA.No.3/23 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
28.11.2022 PASSED IN OS No. 15/2019 ON THE FILE OF THE II
ADDITIONAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by defendant Nos.1 to 3
challenging the judgment and decree dated 12.10.2023 in
RA No.03/2023 on the file of the Senior Civil Judge and
NC: 2024:KHC:35698
JMFC, Thirthahali (for short, 'the First Appellate Court')
whereby the First Appellate Court has dismissed the
appeal confirming the judgment and decree dated
28.11.2022 and 08.12.2022 in O.S.No.15/2019 on the file
of II Additional Civil Judge and JMFC, Thirthahalli (for
short, 'the trial Court').
2. For the sake of convenience, the parties are
referred to as they are referred to before the trial Court.
3. It is the case of the plaintiff that plaintiff is the
son of defendant No.3. Defendant Nos.1 and 2 are brother
and sister of the plaintiff. It is further averred in the plaint
that the plaintiff and defendants are the members of a
joint family and as such, the plaintiff is entitled for 1/2nd
share out of 1/3rd share of defendant No.3 in the suit
schedule property. As such, the plaintiff has filed suit in
O.S.No.15/2019 before the trial Court seeking 1/2nd share
out of 1/3rd share of defendant No.3.
NC: 2024:KHC:35698
4. On service of notice the defendants entered
appearance and defendant No.3 filed written statement
denying the averment made in the plaint. It is the specific
contention of defendant No.3 that plaintiff is son of one
Shashikala D/o. Chinna Naika and as such, defendant No.3
has disputed his relationship with the plaintiff and
accordingly defendant No.3 sought for dismissal of the
suit.
5. On the basis of the pleadings on record, the
trial Court has framed the issues for its consideration.
6. In order to establish the case the plaintiff has
examined himself as PW.1 and produced 12 documents
and the same were marked as Exs.P.1 to P.12. On the
other hand, defendant No.3 has examined as DW.1 but he
has not produced any documents.
NC: 2024:KHC:35698
7. The trial Court after considering the material on
record by judgment and decree dated 28.11.2022 decreed
the suit. Being aggrieved by the same, the defendants
have preferred appeal in RA No.55/2016 before the First
Appellate Court and the same was resisted by the plaintiff.
The First Appellate Court, after re-appreciating the
material on record, by the judgment and decree dated
12.10.2023 dismissed the appeal confirming the judgment
and decree dated 28.11.2022 and 08.12.2022 passed in
O.S.No.15/2019. Being aggrieved by the same, the
defendants have preferred this Regular Second Appeal.
8. I have heard Sri Prasanna D.P., learned counsel
for the appellants.
9. Sri Prasanna D.P., learned counsel for the
appellants, contended that defendant No.3 had two other
children including the plaintiff and therefore, the findings
by both the Courts below are required to be interfered
with in this appeal. He further contended that defendant
NC: 2024:KHC:35698
No.3 had disputed the relationship with plaintiff and the
said aspect has not been properly appreciated by both the
Courts below and as such sought for interference of this
Court.
10. Having heard learned counsel appearing for the
appellants and on careful examination of the findings
recorded by both the Courts below, it would indicate that
the defendants are the children of late Biliya Naika @
Bellanaika. The plaintiff claims to be the son of defendant
No.3. It is the contention of the plaintiff that suit schedule
property is the joint family property of the defendants and
plaintiff and therefore claimed for 1/2nd share out of 1/3rd
share of defendant No.3. On the other hand defendant
No.3 has disputed the relationship with the plaintiff and he
had only two children namely Sri Karthik and Kaushik.
Having taken note of the submission of the learned
counsel appearing for the appellants, perusal of the
findings recorded by the trial Court would makes it clear
that legitimacy of the plaintiff was questioned in
NC: 2024:KHC:35698
O.S.No.119/2003 by defendant No.3 and the said suit
came to be dismissed by the trial Court as per Ex.P.3 and
further as the said judgment and decree has attained
finality, defendant No.3 cannot dispute the relationship
with the plaintiff. However, the case of defendant No.3 is
that he had two children as argued by the learned counsel
for the appellants and in this regard, nothing is produced
before this Court with regard to the fact that defendant
No.3 had two more children apart from the plaintiff.
11. In that view of the matter, there is no merit in
the contention raised by defendant No.3 in his written
statement filed before the trial Court and there is no
evidence to that aspect as contended by the learned
counsel for the appellants. In that view of the matter, the
judgment and decree passed by the Courts below is just
and proper which does not require interference. The trial
Court has framed issue No.3 by recasting the same on
07.09.2022 and the trial Court having taken note of the
NC: 2024:KHC:35698
earlier judgment and decree passed by the trial Court in
O.S.No.119/2003 rightly affirmed issue No.3. As the both
Courts below have arrived at a conclusion that the plaintiff
is entitled for 1/2nd share out of 1/3rd of defendant No.3, I
do not find any merit in the appeal and therefore, the
appeal is dismissed at the state of admission as the
appellants have not made out a case for framing of
substantial question of law as required under Section 100
of CPC.
SD/-
(E.S.INDIRESH)
JUDGE
SA
