Dismissed

Kakkali Shanmukhappa S/O Late Basappa v. Kakkali Ningamma W/O Kakkali

Karnataka HC3 Jul 2024RSA/100735/2015

Case brief

AI extract

What is this about?

Second appeal by defendants in a partition suit. The first appellate court had established that plaintiff No.1 is the legally wedded wife of defendant No.1 and plaintiff No.2 their daughter, decreeing shares in the suit properties. A prior finding in O.S.No.6/2010 (maintenance suit), upheld up to this Court, had already confirmed the marital status. As that finding attained finality and no error in the appellate court's findings was demonstrated, the second appeal was dismissed at admission stage.

What the court decided

AI extract

Kakkali Shanmukhappa S/O Late Basappa Vs Kakkali Ningamma W/O… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF JULY, 2024 BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL NO. 100735 OF 2015 (PAR-)

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BETWEEN:

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KAKKALI SHANMUKHAPPA S/O LATE BASAPPA AGE: 68 YEARS, OCC: AGRICULTURIST,

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KAKKALI SHIVAPPA S/O KAKKALI SHANMUKHAPPA AGE: 32 YEARS, OCC: AGRICULTURIST,

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KAKKALI NINGAMMA W/O KAKKALI SHANMUKHAPPA AGE:42 YEARS, OCC: AGRICULTURIST

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ALL ARE R/AT BHUJANGANAGAR, SANDUR TALUK, DIST: BELLARY-583119.

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…APPELLANTS

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(BY SRI B.B.MALLIGEWAD & SRI P.N.HATTI, ADVOCATES)

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AND:

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KAKKALI NINGAMMA W/O KAKKALI SHANMUKHAPPA AGE: 53 YEARS, OCC: HOUSEHOLD

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Digitally signed by SAROJA HANGARAKI

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Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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THIPAMMA @ THIPPAKKA W/O PRAHLLAD AGE: 36 YEARS, OCC: HOUSEHOLD, BOTH R/AT C/O THIPPANAMARADI, SANDUR TALUK, DIST:BALLARI-583119.

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THUKARAM NAIDU S/O M.S.NAIDU AGE: 45 YEARS, R/AT:14TH WARD, CHAPPARADAHALI, TQ: SANDUR TOWN, DIST: BALLARI.

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SHILPA W/O PRASHANT AGE: 31 YEARS, OCC: AGRICULTURIST, R/AT: PALTHUR POST, URAVAKONDA TQ. DIST:ANANTAPUR, ANDRAPRADESH(AP)

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…RESPONDENTS

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(BY SRI S.M.KALWAD FOR R1 & R2; R3 SERVED & UNREPRESENTED; R4 NOTICE IS HELD SUFFICIENT)

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NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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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.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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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 .

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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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The plaintiffs claiming to be the wife and daughter

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of the defendant No.1 filed a suit in OS No.05/2008

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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3 - NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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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.

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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.

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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 1^st defendant and dismissed the suit.

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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

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4 - NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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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:

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i . “The Regular Appeal filed by the appellants is hereby allowed.

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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.

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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.

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iv . Both the plaintiff No:1 and 2 having half share in the suit schedule properties and the defendant No:1 and 4 having 1/5^th share in the suit schedule properties.

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v . The defendant No:5 is the bonafide purchaser he can take the share of defendant No.1 after final decree proceedings.

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vi . Draw preliminary decree accordingly.

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vii . Send the copy of the judgment along with lower Court records to the lower Court.”

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5 - NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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Being aggrieved the present second appeal is filed by defendant No.1 to 3.

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Heard the submissions of the learned counsel for the appellants and learned counsel for the respondents.

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It is submitted that the 1^st plaintiff herein had filed O.S No.6/2010 against the 1^st defendant for maintenance. In the said suit, a finding has been recorded that the 1^st plaintiff herein is the legally wedded wife of the 1^st 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.

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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 1^st plaintiff is the legally wedded wife of the 1^st defendant. Further the First Appellate Court, noticing the material on record has held that the

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6 - NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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2^nd plaintiff is the daughter of the 1^st plaintiff and 1^st defendant.

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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 1^st plaintiff is the legally wedded wife of the 1^st defendant, the question of considering the same contention once again in the present appeal does not arise.

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The First Appellate Court has found that, the plaintiffs No.1 and 2 are the wife and daughter of the 1^st 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.

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NC: 2024:KHC-D:9056 RSA No. 100735 of 2015

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In view of the dismissal of the above appeal, I.A

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No.2/2015 for stay is also dismissed.

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Sd/JUDGE

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PJ,PMP CT:GSM List No.: 1 Sl No.: 24

Kakkali Shanmukhappa S/O Late Basappa v. Kakkali Ningamma W/O Kakkali

Case brief

What is this about?

What the court decided

Kakkali Shanmukhappa S/O Late Basappa v. Kakkali Ningamma W/O Kakkali

Case brief

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What the court decided

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