Udachappa S/O Neelappa Hanumapur Vs Ningappa Guddappa Hanumapur

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NC: 2025:KHC-D:7479 RSA No.100111 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF JUNE 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL

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RSA NO.100111 OF 2024 (PAR/POS)

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BETWEEN:

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UDACHAPPA S/O. NEELAPPA HANUMAPUR, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: BASAPUR-581108, TQ: & DIST: HAVERI.

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SAHADEVAPPA S/O. NEELAPPA HANUMAPUR, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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PUTTAPPA S/O. NEELAPPA HANUMAPUR, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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MALLAVVA @ CHANNAVVA W/O. HANUMAPPA YATTINAHALLI, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: CHIKKAMARALIHALLI – 581 118, TQ: SAVANUR, DIST: HAVERI.

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PUTTAVVA W/O SHIVAPPA KURI, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: HONNIKOРРА-581118, TQ: SAVANUR, DIST: HAVERI.

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HEMAKKA W/O. FAKKIRAPPA HATTI, AGE: 42 YEARS, OCC: AGRICULTURE, R/O: ICHALA YALLAPUR – 581 118, TQ: SAVANUR, DIST: HAVERI.

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MANJUKKA @ RENUKA W/O. HANUMANTAPPA RITTIKURUBAR, AGE: 34 YEARS, OCC: AGRICULTURE,

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NC: 2025:KHC-D:7479 RSA No.100111 of 2024

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R/O: KONANATAMBAGI-581211, TQ: & DIST: HAVERI.

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… APPELLANTS

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(BY SRI. BALAGOUDA A. PATIL, ADVOCATE)

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AND:

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NINGAPPA GUDDAPPA HANUMAPUR, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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GUDDAPPA HANUMANTAPPA HANUMAPUR, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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CHIKKAPPA HANUMANTAPPA HANUMAPUR, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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KARIYALLAPPA HANUMANTAPPA HANUMAPUR, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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BASAMMA W/O. BASAPPA GUTTALDAVAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: BASAPUR – 581 108, TQ: & DIST: HAVERI.

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… RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 12.10.2023 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, AT HAVERI IN R.A.NO.07/2023 CONFIRMING THE JUDGMENT AND DECREE DATED 03.01.2020 PASSED IN O.S.135/2017 BY THE ADDITIONAL SENIOR CIVIL JUDGE AT HAVERI AND THIS APPEAL BE ALLOWED AND SUIT OF THE APPELLANTS BE DECREED AS PRAYED IN THE PLAINT WITH COSTS THROUGH OUT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:7479 RSA No.100111 of 2024

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by the plaintiffs, being aggrieved

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by the judgment and decree, dated 3^rd January 2020, passed in O.S. No.135/2017 by the Addl. Senior Civil Judge at Haveri (for short “the trial Court”), dismissing the suit of

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the plaintiffs, which is confirmed by the judgment and order, dated 12^th October 2023, passed in R.A. No.7/2023 on the file of the Prl. Judge, Family Court, Haveri (for short “the First Appellate Court”).

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Brief facts of the case are that, the suit properties being the agriculture lands situated at Basapur Village, originally belonged to one Kariyallappa Hanumapur, who passed away about 35 years ago. His wife, Yallavva, also died several years ago. The said Kariyallappa Hanumapur had three sons namely Neelappa, Mallappa and Guddappa, all of them are no more. Neelappa died in the year 1993, and his wife Fakkiravva passed away in the year 2017. The plaintiffs are the children of said Neelappa and Fakkiravva. Mallappa died issueless.

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Guddappa was married to one Gangavva. Both of them passed away leaving behind their son defendant No.1. They had another son by name Hanumantappa, who was married to one Shantavva. The said Hanumantappa and Shantavva passed away leaving behind defendant Nos.2 to 5 as their heirs.

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2.1. After the death of propositus-Kariyallappa Hanumapur, names of his two sons were mutated in the revenue records in respect of the suit lands. Apart from the plaintiffs and defendants, there are no other legal representatives of Kariyallappa Haumapur.

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2.2. However, after the death of Neelappa Kariyallappa Hanumapur, defendant No.1 had filed a false varadhi stating that, Neelappa Kariyallappa Hanumapur died unmarried and without leaving behind any heirs. The said varadhi was done without the knowledge of the plaintiffs and behind their back. Upon learning of this, the plaintiffs filed the objections before the Deputy Tahsildar, Guttal, which was registered as M.R. No.H-34/2012-13.

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2.3. Aggrieved by the order of the Deputy Tahsildar,

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Guttal, the plaintiffs preferred an appeal before the Assistant Commissioner, Haveri, in which the mutation entry bearing MR No.H-34/2012-13 came to be cancelled vide order dated 15.06.2015 in RTS AP No.26/2014-15 and he was directed to reenter the names of all the legal representatives in the revenue records. Accordingly, the names of the legal representatives of Neelappa and Guddappa were entered in the revenue records in respect of the land bearing R.S. No.4/1.

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2.4. Further, the Karnataka Niravari Nigama Limited,

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Ranebennur, acquired the lands bearing R.S. Nos.21/7 and 21/1A to the extent of 15 guntas and 22 guntas respectively, in which, the plaintiffs are also entitled for a half share in the compensation amount. In respect of the remaining properties, the names of the legal representatives of Neelappa Kariyallappa @ Kariyappa Hanumapur and Guddappa have continued in the records. Since the plaintiffs have sought for partition of the suit

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properties, which was denied, they were constrained to file

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the present suit for partition and separate possession.

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Defendant Nos.1, 4 and 5 appeared and filed their written statements, denying the case of the plaintiffs and the relationship as claimed. Referring to the genealogy shown in paragraph No.3 of the plaint, it is categorically contended that Neelappa S/o. Kariyallappa Hanumapur, never married to Fakkiravva, and that the plaintiffs are not the children born from such wedlock between Neelappa and Fakkiravva.

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3.1. It is contended that Fakkiravva was actually the

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wife of one Neelappa S/o. Muddakappa Hanumapur, and that the plaintiffs may have been born out of the wedlock between said Neelappa S/o. Muddakappa Hanumapur and Fakkiravva. Defendant No.1 also furnished a genealogy along with his written statement, showing that Kariyallappa, the propositus, who had three children namely Guddappa, Neelappa and Mallavva, all of them are

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no more. Amongst them, Neelappa and Mallavva died

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unmarried and without leaving behind any issues.

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3.2. Guddappa had children by name Mallavva,

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Savakka, Hanumavva, Hanumantappa and Ningappa. Amongst them, Hanumantappa is no more. His wife was Shantavva and their children are Basamma, Guddappa, Chikkappa and Kariyallappa.

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3.3. It is contended that, Neelappa S/o. Kariyallappa

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Hanumapur, died unmarried on 30.03.1985. After his death, the sons of Guddappa became the owners in possession of the suit properties. Mallavva was married to one Hanumantappa of Totadayallapur Village and died about 15 years ago without any children.

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3.4. It is further contended that several families

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living in Basapur village bear the surname “Hanumapur”. The surname of the family of the defendants is also Hanumapur, who claim to be the owners in possession of the suit schedule properties.

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3.5. It is further contended that, the aforesaid Neelappa S/o. Mudakappa Hanumapur sold his land situated at Basapur Village about 40 years ago and moved to reside at Yallagaccha Village in Haveri Taluka. The said Neelappa S/o. Mudakappa Hanumapur is in no way related to the family of the defendants. The said Neelappa S/o. Mudakappa Hanumapur died on 10.06.1993 at Yalagachcha Village.

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3.6. The plaintiffs with malafide intentions taking undue advantage of the fact that the name of their father was also Neelappa and are contending that they are the children of Neelappa S/o. Kariyallappa Hanumapur. Neelappa S/o. Mudakappa Hanumapur was not at all the son of Kariyallappa S/o. Yallappa Hanumapur. As such the plaintiffs have no semblance of right, title and interest over the suit schedule properties.

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3.7. It is contended that, plaintiffs preferred an appeal before the Assistant Commissioner, Haveri in RTS AP No.26/2014-15, impleading only the Deputy Tahsildar,

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Guttal without making the defendants as parties to the said appeal. The said appeal came to be allowed on 15.06.2015. As against the same, the defendants preferred a revision petition before the Deputy Commissioner, Haveri on 22.09.2016, which came to be allowed and the matter was remanded to the Assistant Commissioner, Haveri, which is pending for consideration. Accordingly, the defendants have sought dismissal of the suit.

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The trial Court based on the aforesaid pleadings, framed the following issues:

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1. Whether plaintiff proves that, suit properties are joint family properties?

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2. Whether plaintiffs prove that they are the children of Neelappa Kariyallappa Hanamapur?

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3. Whether defendants No.1, 2 and 5 prove that suit properties are their absolute properties?

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4. Whether plaintiffs are entitled for the reliefs as sought for?

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5. What order or decree?

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Plaintiff No.2 examined himself as PW1 and also

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examined another witness as PW2, and exhibited 9 documents, marked as Exs.P1 to P9. Defendant no.2

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examined himself as DW1 and examined another witness

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as DW2, and exhibited 4 documents, marked as Exs.D1 to

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D4.

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On appreciation of the evidence, the trial Court

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answered issue Nos.1, 2 and 4 in the negative, and issue No.3 in the affirmative, and consequently dismissed the suit of the plaintiffs.

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Being aggrieved, the plaintiffs preferred a regular appeal in R.A. No.7/2023 before the First Appellate Court.

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The First Appellate Court, based on the

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aforesaid pleadings, framed the following points for its consideration:

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1. Whether the Plaintiffs prove that they are the children of the deceased Neelappa Kariyallappa Hanumapur and the deceased Fakkiravva as per the Genealogy furnished in para 3 of the plaint?

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2. Whether the Plaintiffs further prove that the suit properties are the joint family properties of the family of the plaintiffs and Defendants?

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3. Whether the Defendants prove that they are the absolute owners in possession/enjoyment of the properties?

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4. Whether the Defendants prove that the suit of the Plaintiffs is bad for nonjoinder of necessary parties to the suit?

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5. Whether the Plaintiffs further prove that they are entitled for partition and separate possession of their half share in the suit properties?

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6. Whether the Impugned Judgment/Decree of the Trial Court under Appeal warrants interference at the hands of this Court?

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7. What Order or Decree?

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On reappreciation of the evidence, the First Appellate Court answered point Nos.1, 2, 5 & 6 in the negative, and point Nos.3 & 4 in the affirmative, and consequently dismissed the appeal, confirming the judgment and decree passed by the trial Court.

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Being aggrieved, the plaintiffs are before this Court in this Regular Second Appeal.

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Learned counsel for the appellant also filed an application in I.A. No.1/2025 for production of additional documents.

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Learned counsel appearing for the appellants, reiterating the grounds urged in the memorandum of

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appeal, submits that the trial Court and the First Appellate Court failed to properly appreciate the evidence adduced by the appellants in justification of their claim of they being the children of Neelappa S/o. Kariyallappa Hanumapur. He submits that they examined an independent witness - PW2, who deposed regarding the plaintiff being the children of Neelappa S/o. Kariyallappa Hanumapur and Fakkiravva. He further submits that this evidence is in compliance with 50 of the Indian Evidence Act and is sufficient enough to establish the relationship between the plaintiffs and their parents.

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12.1. He also submits that defendant No.2, who examined as DW1, admitted during the cross-examination that the record of rights in respect of Suit land bearing Sy.No.4/1 stands jointly in the names of the plaintiffs and the defendants, indicating that they are equal owners of the said land, which aspect was not appreciated by either the trial Court or the First Appellate Court.

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12.2. Furthermore, DW1, in cross-examination,

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specifically admitted that, apart from the legal heirs shown in the geology in the plaint, there are no other legal heirs, which was the clear admission of the relationship between the plaintiffs and deceased Neelappa S/o. Kariyallappa Hanumapur. In light of the aforesaid admitted facts by DW1, learned counsel argues that the trial Court and the First Appellate Court grossly erred in not considering the same while answering the issue regarding the relationship of the plaintiffs with the deceased Neelappa.

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12.3. In furtherance to the application in I.A.

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No.1/2025 for production of additional documents, learned counsel submits that the said documents are necessary to support the claim of the plaintiffs being the children of Neelappa S/o. Kariyallappa Hanumapur. He submits that these documents could not be produced either before the trial Court or before the First Appellate Court due to bona fide reasons. Hence, he submits that the appeal gives rise

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to a substantial question of law for consideration, and therefore prays for allowing the application and the appeal.

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Heard. Perused the records.

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The facts having been noted already do not require reiteration. As rightly observed by the trial Court and the First Appellate Court, the plaintiffs, who are claiming share in the suit schedule property, are, at the outset, required to establish their relationship of they being the children of Neelappa S/o. Kariyallappa Hanumapur, as claimed by them, which is categorically denied by the defendants.

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14.1. The plaintiffs by filing IA No.1/2025 have sought for production of additional 5 documents, namely (i) Aadhaar card of appellant No.1, (ii) Pan card of appellant No.1, (iii) Aadhaar card of appellant No.2, (iv) Aadhaar card of appellant No.3 and (v) a true copy of the family tree issued by the Deputy Tahsildar, Karajagi Hobali. Except stating that the said documents are material documents to decide the case on merits, and that even

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after due diligence, the above material documents could not be produced in time, nothing is stated. Production of additional documents can only be permitted if requirement of the provisions Order 41 Rule 27 of CPC are satisfied. Nothing is deposed in the affidavit as to whether or not the plaintiffs made any attempt to produce the said documents before the trial Court or the First Appellate Court and were rejected, or whether the said documents were not available with the plaintiffs when the matter was being tried to before the trial Court or the First Appellate Court. The only other consideration is if this Court finds the said documents are required for just disposal of the matter.

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14.2. In the document Nos.(i) to (iii) sought to be produced, the name of the father of the appellants is shown as “Neelappa Hanumapur” and not “Neelappa Kariyallappa Hanumapur”. Another interesting aspect of the matter is the date of birth of appellant No.3 as seen in document No.(iv) is shown as “10.06.1985” while admittedly Neelappa Kariyallappa Hanumapur passed away

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on “30.03.1985” as per Ex.D2 which has remained unchallenged. In any case the said documents are hardly of any assistance to the plaintiff as the name of Neelappa Kariyallappa Hanumapur is not forthcoming therein. The application is therefore rejected.

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14.3. There is no dispute regarding the fact that Neelappa S/o. Kariyallappa Hanumapur, passed away on 30.03.1985. The only documentary evidence produced by the plaintiffs in justification of their claim to be the children of Neelappa S/o. Kariyallappa Hanumapur is the revenue records, which have admittedly came into existence only from the year 2012-13 onwards. No other documentary evidence of any nature whatsoever has been produced by the plaintiffs.

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14.4. The other evidence let in by the plaintiffs is examining one Kariyallappa M.Hanumapur - PW2. The trial Court and the First Appellate court on appreciation of his deposition, found that the said witness did not speak anything about the solemnization of marriage between

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Fakiravva with Neelappa S/o. Kariyallappa Hanumapur. The trial Court and the First Appellate Court had also noted that the said witness has deposed that plaintiff No.1 had given information regarding the contents of his affidavit in examination-in-chief and the same was prepared as per his say and that he had only affixed his thumb impression thereon, and that he was not aware of the contents of the said affidavit. Accordingly, declined to rely upon his testimony in light of the requirements of the provisions of Section 50 of the Indian Evidence Act.

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14.5. The trial Court and the First Appellate Court

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have also taken note of the fact that Neelappa S/o. Muddakappa Hanumapur, who according to the defendants was the father of the plaintiffs had passed away on 10.06.1993 at Yallagaccha village. A death certificate at Ex.D1 is produced by the defendants in this regard. However, since during the cross examination, it is suggested on behalf the plaintiffs that the said Neelappa S/o. Muddakappa Hanumapur was still alive and was not

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dead, as rightly observed by the trial Court and the First Appellate Court, nothing prevented the plaintiffs to examine the said person to rule out and rebut the defence set up by the defendants of plaintiffs being his children. When a specific pleading in the written statement is made, and the evidence is led in this regard, it was incumbment upon the part of the plaintiffs to have rebutted the said evidence, by examining none other than the said Neelappa S/o. Muddakappa Hanumapur, who according to the plaintiffs was still alive. Inference drawn by the trial Court and confirmed by the First Appellate Court in this regard cannot be found fault with.

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14.6. The trial Court and the First Appellate Court having appreciated the material evidence let in by the parties on the point of relationship of the plaintiffs with the deceased Neelappa Kariyallappa Hanumapur and having negated the claim of the plaintiffs, this Court do not see any reason to interfere. No substantial question of law

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