Shanthavva W/O Basanagouda Konathi Vs Malashanthappa S/O Bharmagouda Bommannanavar

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NC: 2025:KHC-D:1619 RFA No. 100228 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28^TH DAY OF JANUARY, 2025 BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100228 OF 2018 (PAR/POS)

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BETWEEN:

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SHANTHAVVA W/O. BASANAGOUDA KONATHI, AGE: 44 YEARS, OCC: AGRICULTURISTS, R/O: SHIRAGAMBI-581111, TALUK: HIREKERUR, HAVERI DISTRICT.

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…APPELLANT

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(BY SRI S.G. KADADAKATTI, ADVOCATE)

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AND:

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MALASHANTHAPPA S/O. BHARMAGOUDA BOMMANNANAVAR, AGE: 41 YEARS, OCC: AGRICULTURIST, R/O: SHIRAGAMBI-581111, TQ: HIREKERUR, DIST: HAVERI.

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MALLAMMA W/O. SHIVAPPA GUBBI, AGE: 39 YEARS, OCC: AGRICULTURIST, R/O: SHIRAGAMBI-581111, TQ: HIREKERUR, DIST: HAVERI.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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NEELAVVA W/O. BHARAMAGOUDA BOMMANNANAVAR, AGE: 58 YEARS, OCC: AGRICULTURIST, R/O: SHIRAGAMBI-581111, TQ: HIREKERUR, DIST: HAVERI.

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…RESPONDENTS

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(BY SRI CHETAN MUNNOLI, ADVOCATE FOR R1 TO R3; (APPEAL AGAINST R3 IS ABATED V/O DATED 21.01.2025))

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.04.2018 PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC, HIREKERUR, IN O.S.NO.1/2016 AND TO DECREE THE SUIT AS PRAYED BY ALLOWING THIS APPEAL AND ETC.,

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NC: 2025:KHC-D:1619 RFA No. 100228 of 2018

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THIS REGULAR FIRST APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

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Though this appeal is listed for orders, with consent of

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learned counsel for the parties, it is taken up for final disposal.

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This Regular First Appeal is filed by the plaintiff/appellant challenging the order dated 02.04.2018 passed in O.S No.1/2016 on the file of Senior Civil Judge and JMFC, Hirekerur (hereinafter referred to as the ‘Trial Court’).

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.

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Heard arguments from both learned counsels appearing for the parties and perused the materials placed on record.

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The plaintiff claiming to be the daughter of Girijavva and Bharamagouda, has filed the suit for partition and separate possession for claiming 1/4^th share in the suit

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schedule properties, by pleading that the suit schedule properties are ancestral and joint family properties. It is stated that Girijavva, the mother of the plaintiff, is the 1^st wife of Bharamagouda. It is pleaded that Neelavva, the 3^rd respondent, is the 2^nd wife of Bharamagouda and defendant Nos.1 and 2 are the son and daughter of 3^rd respondent i.e., Neelavva and Bharmagouda. Therefore, filed a suit for partition for the relief on the extent as above stated.

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The defendants have filed written statement in denying the plaint averments and also denied the averments that the plaintiff is the daughter of Bharamagouda and Girijavva. It is the defense of defendants that the plaintiff is a stranger to the family of Bharamagouda. Therefore, prays for dismissal of the suit.

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Based on the pleadings of the parties, the Trial Court has framed the following issues:

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1. Whether the plaintiff proves that she herself and the defendants are the joint family members and the suit schedule properties are all ancestral and

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joint family properties of herself and the defendants?

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2. Whether the plaintiff proves that, she is in possession of the suit schedule properties along with the defendants?

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3. Whether the suit is barred by law of limitation?

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4. Whether the plaintiff proves that, she is entitle for share as sought for?

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What order or decree?

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In order to prove the case, the plaintiff was examined as PW.1 and got examined two witnesses as PW.2 and PW.3 and produced documentary evidence as Ex.P1 to Ex.P15. The defendant No.1 was examined as DW.1 and got marked documentary evidence as Ex.D1 to Ex.D3.

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The Trial Court has dismissed the suit on the reason that the plaintiff has failed to prove that she is the daughter of Girijavva and Bharamagouda. Therefore, the Trial Court by following opinion that the plaintiff is stranger to the family of Bharamagouda, dismissed the suit. The Trial Court upon considering the document of Ex.P14-death certificate of Girijavva that she died on 06.03.1974 and also considering the date of birth of plaintiff, which is shown as

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12.04.1974, has held that she is not the daughter of Girijavva and very documents produced by the plaintiff herself goes to show that the said plaintiff has not produced any documents to prove that she is the daughter of Girijavva. Therefore, the Trial Court disbelieving the plaintiff as the daughter of Girijawwa and Bharamagouda, dismissed the suit.

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Being aggrieved by the same, the

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appellant/plaintiff has preferred the appeal and also filed I.A.No.1/2024 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) and produced additional documentary evidence as document Nos.1 to 5.

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Based on these additional documentary evidence

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intended to be produced along with I.A.No.1/2024, argued that as per document No.1/the marriage invitation card, the marriage of Bharamagouda and Girijavva solemnized on 11.03.1972 and also submitted that by placing reliance on other documents produced along with the evidence prove that the plaintiff is the daughter of Girijavva. Since it is

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NC: 2025:KHC-D:1619 RFA No. 100228 of 2018

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established that Girijavva is the wife of Bharamagouda, it proves that the plaintiff is daughter of Bharamagouda and Girijavva. This interlocutory application is vehemently opposed by the counsel for the respondents/defendants.

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Learned counsel for the defendants/respondents submitted that the interlocutory application filed for the production of additional documents cannot be entertained at this stage since the parameters under Order XLI Rule 27 of CPC are not satisfied. Therefore, the additional documents could not be considered in this appeal and pray to reject the said application.

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Here, the question is not only for partition, though the suit is filed for partition and separate possession, but the legal status of the plaintiff is also involved. The plaintiff is claiming legal status as the daughter of Bharamagouda and Girijavva. The plaintiff must have parents and who are the father and mother of the plaintiff, which is a question to be considered. Therefore, this legal status claimed by the plaintiff indicates that the suit filed is not simply for partition and separate possession, but there is

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a serious question regarding the legal status of the plaintiff is involved. While the plaintiff might have filed suit for partition and separate possession, it is very important that when the plaintiff knocks on the door of justice, her legal status must also be considered and decided, as it is fundamental right of every person, not only the plaintiff. Therefore, the Court is of the opinion that without expressing any opinion on the merits involved in the case, let the documentary evidence placed in this appeal should be considered and tested during the Trial.

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Learned counsel for the respondents/defendants submitted that the document Nos.1 to 5 produced along with I.A.No.1/2024 are created and concocted one. Whether these documentary evidence are created and concocted that can be examined during the Trial. The genuineity and truthfulness of the additional documents cannot be adjudicated in this appeal without receiving the evidence from the parties. As per document No.1 annexed with I.A.No.1/2024, the marriage of Bharamagouda and Girijavva was solemnized on 11.03.1972 and this is the old document

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about 50 years before. Therefore, there may not be chance of securing the same in the house of plaintiff; however, the learned counsel for the appellant/plaintiff submitted that one of the relatives of the plaintiff has provided the same.

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Whatever the grounds urged in the application, the question of determining the legal status of the plaintiff involved in the case, is not merely a claim for partition and separate possession. Therefore, the Court is of the opinion to remand the case to the Trial Court for fresh consideration of all the documentary evidence produced in this appeal to examine the truthfulness of the documents. Consequently, I.A.No.1/2024 filed for production of additional documents is hereby allowed and the Trial Court is directed to consider the genuineity, veracity and truthfulness of the documentary evidence produced in the appeal during the trial. Therefore, by remanding the case, the judgment and decree passed by the Trial Court is set aside. The documentary evidence annexed with I.A.No.1/2024 shall be forwarded to the Trial Court for consideration during the Trial. The Trial Court is

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directed to receive evidence from both parties and decide the case in accordance with law.

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It is made clear that this Court has not expressed any opinion on merits involved in the case. The observations made above are only for the purpose of deciding the appeal and explaining why the remand is necessary.

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