Karnataka High Court
Sharanamma W/O Basavaraj Hunnikera And ... vs Basavaraj S/O Gadigeppa Bhankura And ... on 10 March, 2025
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RFA No. 200041 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.200041 OF 2021 (PAR/POS)
BETWEEN:
1. SHARANAMMA W/O BASAVARAJ HUNNIKERA,
AGE: 55 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD, R/O HOSURA VILLAGE,
TQ. CHITTAPUR, DIST. KALABURAGI.
2. SHANTAMMA W/O BASAVARAJA KHANADAL,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O KALAKAM VILLAGE, TQ. SEDAM,
DIST. KALABURAGI.
...APPELLANTS
(BY SRI. S.B. HANGARKI, ADVOCATE)
Digitally signed by
BASALINGAPPA AND:
SHIVARAJ
DHUTTARGAON 1. BASAVARAJ S/O GADIGEPPA BHANKURA,
Location: HIGH
COURT OF AGE: 53 YEARS, OCC: AGRICULTURE,
KARNATAKA R/O ANDOLA VILLAGE, TQ. JEWARGI,
DIST. KALABURAGI-585 303.
2. KARANAMMA W/O NINGANNA AWANTI,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O BENAKANAHALLI VILLAGE,
TQ. SEDAM, DIST. KALABURAGI-585 222.
3. MALLAMMA W/O BASAVARAJ BHANKURA,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O ANDOLA VILLAGE, TQ. JEWARGI,
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RFA No. 200041 of 2021
DIST. KALABURALGI-585 303.
4. CHANDAMMA W/O GANGADHARA ALLOLLI,
AGE: 45 YEARS, OCC: AGRI.,
R/O RAVOOR, TQ. CHITTAPUR,
DIST. KALABURAGI-585 211.
...RESPONDENTS
(BY SMT. MAMTA V. LADDA, ADV. FOR R1 TO R4)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE DATED 26.06.2018 PASSED BY THE COURT OF THE
SENIOR CIVIL JUDGE AND JMFC, JEWARGI IN O.S. NO.
84/2017, AND CONSEQUENTLY THE SUIT OF THE
PLAINTIFF/APPELLANT BE DECREED.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
This appeal is from the judgment and decree dated
26.06.2018 passed by the Senior Civil Judge at Jewargi
(hereinafter referred to as 'the Trial Court' for brevity) in
O.S.No.84/2017, dismissing the suit for partition.
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2. The plaintiffs claim that they are the children of
one Neelamma. The genealogy furnished by the plaintiffs
is as under: Gadigeppa Bankur (Dead)
Malamma (Wife /Dead)
Neelamma Chennamma Basavaraj
(Dead) (Dead) (Deft.No.1)
Karanamma Sharnamma Malamma Chandamma shantamma
(D-2) (Ptft) (D-3) (D-4) (P-2)
3. According to the plaintiffs, one Gadigeppa was
the propositus and Malamma was his wife. The plaintiffs
claim that the propositus Gadigeppa had two daughters
and one son. Neelamma, the plaintiffs' mother is said to
be the first daughter of said Gadigeppa; Channamma, the
second daughter is not made a party to the suit, as she
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died issueless and Basavaraj, the only son of Gadigeppa
has arrayed as defendant No.1. The plaintiffs have arrayed
the daughters of Neelamma i.e., the sisters of plaintiffs as
defendant Nos.2 to 4, as they representing the branch of
Neelamma.
4. The plaintiffs claim that there is no partition
after the death of Gadigeppa, Malamma and Neelamma.
As such, they claim that the said properties are the joint
family properties and claimed 1/4th share in the suit
schedule properties.
5. The defendants contested the suit and claim
that Neelamma is not the daughter of Gadigeppa. The
defendants took a specific stand that, Neelamma is the
daughter of Bakappa @ Bandeppa and Dulamma. Thus,
they prayed for dismissal of the suit.
6. Based on the pleadings, the Trial Court framed
the following:
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"ISSUES
01. Whether the plaintiffs prove their
relationship with defendants as pleaded in para
No.3 of the plaint?
02. Whether the plaintiffs prove that
themselves and defendants are the members of
Hindu undivided joint family?
03. Whether the plaintiffs further prove
that suit schedule properties are the ancestral
and joint family properties of themselves and
defendants and all are in joint possession and
enjoying the same?
04. Whether the plaintiffs are entitled for
the relief of partition? If so, to what extent?
05. What order or decree?"
7. After analysing the evidence led before it, the
Trial Court has concluded that the plaintiffs have not
established the relationship of Neelamma as daughter of
propositus Gadigeppa. Consequently, the Trial Court has
dismissed the suit.
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8. Aggrieved by the said judgment and decree, the
plaintiffs are before this Court in appeal.
9. Learned counsel appearing for the appellants/
plaintiffs would raise the following contentions:
a) The defendants have pleaded that Neelamma is
the uterine sister of defendant No.1 and the burden should
have been cast on the defendants to prove the said
contention.
b) The plaintiffs have produced the genealogical
tree issued by the Village Accountant. However, the Trial
Court brushed aside the said document on the premise
that the said document does not contain information as to
on whose request, the said genealogical tree is furnished.
c) The Trial Court has misconstrued the oral and
documentary evidence led by the parties and erroneously
dismissed the suit.
10. Learned counsel appearing for the respondents
would contend that Dhulamma was the mother of
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Neelamma and she was born from the marriage of
Dhulamma with Bakappa. After the death of Bakappa,
Dhulamma started living with her sister Shivalingamma
and later Dhulamma married Gadigeppa. From the said
marriage, Dhulamma had a daughter by name
Channamma and Son Basavaraj, the defendant No.1.
11. It is the further urged that the claim that
Neelamma is the sister of Basavaraj cannot be accepted
from the age mentioned in the cause title of the plaint
wherein, plaintiff Sharanamma who is the daughter of
Neelamma was aged 52 years when the suit was filed and
defendant No.1 Basavaraj was aged 50 years. If
Basavaraj was 50 years and plaintiff Sharabnamma the
daughter Neelamma was aged 52 years, then it cannot be
said that the Neelamma is the sister of Basavaraj. At the
most, Neelamma can be considered as the uterine sister of
Basavaraj as mother Dhulamma gave birth to Neelamma
from Bakappa, her first husband and Dhulamma gave birth
to Basavaraj from her second marriage to Gadigeppa.
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12. Referring to these circumstances, it is urged
that the plaintiffs claim that Neelamma is the daughter of
Gadigeppa is not established.
13. Following point arise for consideration:
"Whether appellants establish that they are
the decedents of Gadigeppa"?
14. This Court has considered the contentions
raised at the Bar and perused the records.
15. The relationship of defendant No.1 as the son of
propositus Gadigeppa and Malamma is admitted. It is not
in dispute that Channamma was the daughter of
Gadigeppa and Malamma and she died issueless. The only
question that requires to be answered is, whether
Neelamma, the mother of the plaintiffs and defendant
Nos.2, 3 and 4 is the daughter of Gadigeppa or daughter
of Bakappa @ Bandeppa?
16. The Trial Court has not considered the
documented at Exs.P47 and P48, which are the
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genealogical trees issued by Village Accountant, Andola.
As far as Ex.P47 is concerned, the Court has concluded
that the said document does not bear the Signature of the
Village Accountant, Andola and Ex.P48 though it bears the
signature of the Village Accountant, Andola, the Trial Court
has declined to look into this and document on the
premise, as to on whose instance, the said document is
issued, is not forthcoming.
17. This Court has considered Ex.P47 as well as
Ex.P48. Ex.P47 purports to be the certified copy of the
genealogical tree issued by the Village Accountant,
Anodola. It bears the signature of Tashildar, Chittapur,
who has issued the certified copy. However, it does not
bear the signature of Village Accountant, Andola. It does
not even say that the said document is signed by Village
Accountant, Andola.
18. As far as Ex.P48 is concerned, it is noticed that
the said document reveals the name of Neelamma as the
daughter of Gadigeppa and Dulamma. This document
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though signed by Village Accountant, Andola, on whose
instance it was issued is not specified in the said document
and this is the observation made by the Trial Court. This
Court does not find any error in the said observation. On
what basis the said document is issued and whose
evidence is relied on to issue the said document is also not
forthcoming.
19. This Court is of the view that the said
documents at Exs.P47 and P48 are not good enough to
treat as evidence to hold that Neelamma is the daughter
of Gadigeppa and Dulamma.
20. It is also relevant to note that except plaintiff
No.1, no other person is examined to prove the case of the
plaintiffs. Very interestingly, defendant No.4, who is the
sister of plaintiff Nos.1 and 2 has been examined as DW.2.
She supported the case of defendant No.1 and she states
that Neelamma is the daughter of Bakappa and Dulamma.
Her evidence assumes importance in the sense as it is the
evidence given by the person against her own interest. If
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she had supported the case of the plaintiffs, she would
have secured share along with the plaintiffs. However, she
has not chosen to support the case of the plaintiffs despite
the said statement goes against her own interest. Law
assumes more importance to the evidence of such
persons, who make a statement against their own interest.
This is one aspect, which has to be considered while
considering the rival claims of both the parties.
21. In addition to evidence of Chandamma, one
person from the said village, where defendant No.1 is
residing is also examined and he has given evidence to the
effect that Neelamma is the daughter of Bakappa and the
said Bakappa died and later Dulamma married Gadigeppa.
It is also come in evidence that Dulamma's marriage was
performed by Shivalingamma, who is the sister of
Dulamma.
22. It is also relevant to note that PW.1, who is
examined to substantiate the claim that Neelamma is the
daughter of Gadigeppa, has pleaded ignorance to the
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questions put to him in the cross-examination. At the
same time, it is also relevant to note that he has not
denied the suggestions based on the defence raised by the
defendant in the written statement. On the other hand, he
has pleaded ignorance on the defence raised defendant.
Under the circumstances, the Trial Court has come to the
conclusion that the plaintiffs have not led evidence to
support their case.
23. Though the learned counsel appearing for the
appellants would contend that the defendants are required
to establish their defence, this Court is of the view that the
onus of proving the defence would arise only in case the
plaintiffs would have discharged their burden, which is
initially cast on the plaintiffs based on their claim that their
mother-Neelamma is the daughter of Gadigeppa. Since the
plaintiffs have not established that Neelamma is the
daughter of Gadigeppa, assuming that there is lapse on
the part of the defendants to establish their defence that
Neelamma is the daughter of Bakappa does not come to
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the rescue of the plaintiffs to hold that Neelamma is the
daughter of Gadigeppa.
24. For the aforementioned reasons, this Court is of
the view that no ground is made out to interfere with the
judgment and decree passed by the Trial Court.
Accordingly, the appeal is dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
LG,CHS
CT: AK
