Second appeal against concurrent decrees granting plaintiff a 1/2nd share out of defendant No.3's 1/3rd share in joint family property. Defendant's denial of paternity failed as an earlier decree in O.S.No.119/2003 had attained finality. Appeal dismissed at admission for want of substantial question of law under Section 100 CPC.
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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:
S/O. LATE BILIYA NAIKA @ BELLANAIKA, AGED ABOUT 69 YEARS, R/O. WARALLI, MUTTUVALLI VILLAGE, THIRTHAMATTUR POST, THIRTHAHALLI TALUK, SHIVAMOGGA DISTRICT, PIN-577 434.
Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka
…APPELLANTS
(BY SRI. PRASANNA D P.,ADVOCATE)
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
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').
5. On the basis of the pleadings on record, the
trial Court has framed the issues for its consideration.
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.
for the appellants.
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.
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.
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 RSA No. 2178 of 2023
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
2 issues framed by the court
Whether the plaintiff was entitled to a 1/2nd share out of defendant No.3's 1/3rd share in joint family property despite defendant No.3 disputing their relationship.
Whether any substantial question of law arose under Section 100 CPC warranting interference with concurrent findings of the courts below.
1 provisions across 1 enactments
Krishnamurthy
Smt. Kamalamma
Manjunath
Chandrashekar (Manjunatha in dispute)
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
