Dayananda Gowda S.V. Vs Sri.R.Venkatappa

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.07.2020 PASSED IN OS.NO.121/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM SHIVAMOGGA DISMISSING THE SUIT FOR PARTITION, DECLARATION AND PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 25.06.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S RACHAIAH

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HC-KAR

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE S RACHAIAH)

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This appeal has been filed by the appellant/plaintiff being aggrieved by the judgment and decree dated 08.07.2020 passed in O.S.No.121/2012 by the Prl. Senior Civil Judge and CJM, Shivamogga wherein the Trial Court dismissed the suit with cost.

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For the sake of convenience, the rankings of the parties would be henceforth referred to as per their rankings before the trial Court.

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The factual matrix of the case are as under :

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The plaintiff filed an original suit in O.S.No.121/2012 before the Prl. Senior Civil Judge and C.J.M., Shivamogga against the defendants who are the respondents herein seeking for the relief of partition and separate possession of his share in the suit schedule properties and also for declaration to declare that the partition deed dated 11.09.2012 as null and void and not binding on the plaintiff and also for other consequential reliefs.

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HC-KAR

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It is the contention of the plaintiff that he was the biological son of defendant No.1. Defendant No.1 married defendant No.2 – Smt. Sundaramma @ Sundari Bai. He is the son of both of them. The said marriage between defendants No.1 and 2 is the second marriage. The plaintiff stated that he had legitimate right over the suit schedule properties for partition to the extent of 1/8^th share and also seeking partition over the suit schedule properties by stating that the alleged partition deed is stated to have taken place on 11.09.2012, is a sham document and the same is not binding on him.

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The defendants after entering their appearance and after filing the written statement contended that the name of the plaintiff is Dudhya Nayaka and not Dayananda Gowda. The said plaintiff is the son of Rama Naik who is examined as D.W.5. The plaintiff is the resident of Mandenakoppa Village. They have stated that the plaintiff belongs to the Banjara community whereas they belong to Vokkaliga community. There is no relationship existed between the plaintiff and themselves. As such, they are seeking to dismiss the plaint. The Trial Court after having

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HC-KAR

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considered the rival contention of both the parties, opined that the plaintiff has failed to prove that there was a solemnization of marriage of his mother with defendant No.1. Though the DNA report reveals that the plaintiff is paternally related to defendant No.1. The said scientific report has not been considered. As such, the suit of the plaintiff has been dismissed. Hence, the plaintiff before this Court seeking to set aside the dismissal of the said judgment and decree.

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Heard learned counsel Sri. Prashanth H.S., for the appellant and Sri. Gowda G.A.K., learned counsel for respondents No. 3 to 6 and Sri. M.Bhaskar Jois, learned counsel for respondent No.2.

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Learned counsel for the appellant submitted that the Trial Court committed error in not considering the evidence both oral and documentary properly, consequently, the impugned judgment is passed which is required to be set aside.

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It is further submitted that Section 112 of Indian Evidence Act (for brevity, ‘Act’) deals with presumption of

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HC-KAR

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legitimacy of a child birth during a valid marriage and the same is the conclusive proof of legitimacy.

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It is further submitted that the DNA report prevails over the presumption of proof under Section 112 of the Act. It is further submitted that the Trial Court ignored the evidence of P.Ws.2 to 9 and also relevant documents produced by the plaintiff to substantiate that he is the son of defendant No.1 and he is entitled for partition. However, the Trial Court arrived at a conclusion on assumption and presumption that the plaintiff is not the son of defendant No.1 which is erroneous and baseless. Therefore, the dismissal of the suit has to be set aside and the properties have to be partitioned by including the plaintiff.

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Per contra , learned counsel for the defendants submitted that defendant No.5 who is the father of the plaintiff has categorically stated that he was the husband of Sundari Bai @ Sundaramma. The plaintiff had born to him and he is the biological father of the plaintiff. Hence, the question of considering the plaintiff is legitimate son of defendant No.1 does not arise. As the plaintiff has

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HC-KAR

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failed to prove that he is the legitimate son of defendant No.1, he is not entitled for partition. Therefore, the Trial Court has rightly appreciated the evidence both oral and documentary on record and dismissed the suit which is proper and appropriate and there is no reasons to interfere with the said findings.

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Having heard learned counsel for the parties and perused the findings of the Trial Court in dismissing the suit, the following points arise for my consideration are as under:

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“(i ) Whether the DNA report is considered as conclusive proof for the paternity?

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(ii) Whether the findings of the Trial Court in dismissing the suit is justified?

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(iii) What order ?”

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To prove the case, the plaintiff examined himself as P.W.1 and produced 26 documents as Exs.P.1 to 26 and also got examined eight witnesses as P.Ws.2 to 9. Defendant No.3 examined himself as D.W.1 and he got examined other four witnesses as defendants No.2 to 5 and got marked 74 documents as Exs.D.1 to 74.

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HC-KAR

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The plaintiff in order to prove the relationship and paternity, got examined six witnesses namely, P.W.2- K.R.Venkatarame Gowda, P.W.3 – H.S. Rame Gowda, P.W.4 – K.M. Mahadevappa, P.W.5 – Anand Kumar B, P.W.6 – S.R.Srinivasa and P.W.7 – Naku Bai.

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As regards point No.1 is concerned, the evidence of P.Ws.1 to 6 would indicate that Smt. Sundaramma @ Sundari Bai was living along with Venkatappa who is defendant No.1, as a wife and P.W.1 born to them. However, in addition to the oral evidence, P.W.1 relied on DNA report which is marked as Exs.P.13 and 14. As per the said report, defendant No.1 is the biological father of the plaintiff. The Trial Court ignored in considering the said report which is erroneous and contrary to the law laid down by the Hon'ble Supreme Court. In this context, it is relevant to refer the judgment of Hon'ble Supreme Court in the case of¹ Nandlal Wasudeo Badwaik Vs.

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Lata Nandlal Badwaik and another in paragraphs No.17 and 18 read as under:

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1 AIR 2014 SC 932

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HC-KAR

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“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

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18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.”

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HC-KAR

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On careful reading of the dictum of the Hon'ble Supreme Court, Section 112 of Indian Evidence Act has been enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Therefore, the DNA test has to be considered as the accurate test to determine the paternity.

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When the plaintiff is considered as legitimate son of defendant No.1, is entitled to have share in the properties. Admittedly, defendant No.1 had several properties and as on the date of filing of suit, defendant No.1 was alive.

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Having considered the facts and circumstances of the case, the rights of the parties has been determined. The demarcation of the properties had to be taken place by filing the necessary Final Decree Proceedings.

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In the light of the observations made above, I proceed to pass the following:

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HC-KAR

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ORDER

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i. The appeal is allowed.

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ii. The judgment and decree dated 08.07.2020 passed in O.S.No.121/2012 by the Prl. Senior Civil Judge and CJM, Shivamogga are hereby set aside.

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iii. The suit is decreed.

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iv. The parties are hereby directed to appear before the Trial Court and the plaintiff is directed to file Final Decree Proceedings for demarcation of the properties.

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v. Draw decree accordingly.

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vi. Registry is directed to transmit the records to the Trial Court forthwith.

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Sd/(S RACHAIAH) JUDGE

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JS

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List No.: 1 Sl No.: 50

Dayananda Gowda S.V. v. Sri.R.Venkatappa

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Dayananda Gowda S.V. v. Sri.R.Venkatappa

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