Sri. Shivappa Vs Smt. Ramarathnamma

SMT. RAMARATHNAMMA D/O T.V. MUNEGOWDA, (AS PER CAUSE TITLE) W/O ASHWATHANARAYANAGOWDA, AGED ABOUT 54 YEARS, R/O KANCHALA VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139.

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2 - NC: 2025:KHC:25400 RSA No. 1007 of 2022

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HC-KAR

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SRI. T.V. MUNEGOWDA S/O VENKATEGOWDA, AGED ABOUT 78 YEARS,

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SRI GOVINDARAJU S/O T.V. MUNEGOWDA AGED ABOUT 39 YEARS

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SMT. PADMA S/O T.V. MUNEGOWDA AGED ABOUT 37 YEARS,

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ALL ARE RESIDING AT THRUNSI VILLAGE, MASTHI HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 139.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.04.2022 PASSED IN RA.NO. 18/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE , KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.12.2015 PASSED IN O.S.NO.87/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MALUR.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This case is posted for admission.

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Heard the learned counsel appearing for the appellant.

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The case of the plaintiff before the Trial court while seeking the relief of partition and separate possession contended in the plaint that suit schedule properties are the joint family properties of the plaintiff and defendants and also the defendants appeared and filed written statement contending that suit itself is not maintainable and hence, the Trial Court taking into note of pleadings, framed the issues whether the plaintiff proves the suit schedule properties are joint family properties and whether entitled for share in the suit schedule property and whether the suit is maintainable or not?

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The Trial Court allowed the parties to lead the evidence and also considering the material on record,

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other additional issues are also framed whether defendants No.2 and 3 proved that suit schedule properties are already been partitioned between defendants No.1 and 2 by way of Panchayat Parikat in the year 1985 and also whether defendants No.1 and 2 proves that the suit schedule property item No.3 is self acquired property of defendant No.1.

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The Trial Court having considered the material on record, answered the additional issues as 'negative' and answered Issue No.1 as 'affirmative' taking note of admission on the part of DW1 that suit schedule properties are the joint family properties and also comes to the conclusion that the suit is not maintainable and the same is answered as 'negative' and having considered the plaintiff is the daughter of the first defendant through his first wife and also the defendant not disputed the fact in the cross examination that he has not given any divorce to his wife and he has contracted the second marriage and having children through the second wife also and hence,

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considering all these materials, plaintiff is entitled for half share in the suit schedule property. Though it is contended by the defendants that item No.3 is a self acquired property trial court taking note of he has derived the property through his father by inheritance i.e., Item Nos.1 and 2 and having considered the same, comes to the conclusion that even the property is acquired i.e., item No.3 is also out of the income of properties at items No.1 and 2 and not proved exclusively that item No.3 is purchased out of self earned money, hence, granted the relief.

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Being aggrieved by the judgment and decree, an appeal is filed in RA No.18/2020 and the Appellate Court having considered the grounds urged in the appeal taken note of issues framed at the first instance and also the additional issues framed subsequently, in view of the subsequent pleadings and re-assessed both the oral and documentary evidence and formulated the points whether the plaintiff has proved that she is the defendant No.1

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born through his first wife Pillamma and whether the plaintiff has proved that suit schedule properties are the ancestral / the joint family properties of the plaintiff and the defendants and she is entitled to share and also formulated the point whether the judgment and decree of the Trial Court requires inference.

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The Appellate Court after re-appreciating the material on record, answered point Nos.1 and 2 as 'affirmative' and comes to the conclusion that the plaintiff is the daughter of first wife Pillamma through defendant No.1 and also re-assessed the material, comes to the conclusion that the suit schedule properties are the ancestral / joint family properties considering the inheritance and same is discussed while considering point Nos.1 and 2 and even also the matter was remanded earlier with regard to the DNA test and defendant No.1 was not subjected to DNA test also and same is discussed at para - 40 and also taken note of the material on record while answering issue No.3 categorical admission of DW1

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and 2 regarding the relationship between plaintiff and defendant No.1 and also the documentary evidence taken note of and DW1 also admitted during his cross examination that suit item No.1 is also the joint family property and all these admissions are taken note of and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent findings of the courts below, the present appeal is filed before this Court. The main contention of the appellants before this Court is both Courts have committed error in considering the material on record. Counsel also vehemently contended that this Court has to frame the substantial questions of law that both the courts have committed an error in not considering the evidence of RW1 though his evidence is corroborated with documentary evidence, both the courts are not justified in decreeing the suit and confirmed the same and hence, calls for reconsideration.

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Having heard the appellants’ counsel and also consideration of material available on record, particularly the reasons assigned by the Trial Court as well as the First Appellate Court, the challenge made before this Court is concurrent findings and it is not in dispute that item Nos.1

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and 2 properties are inherited by Munegowda from his father and though the counsel during the course of arguments, contended that the said properties have become separate properties of Munegowda and property was purchased by Venkategowda and in order to substantiate that Venkategowda has purchased the properties, no sale deed or documents are placed on record and Trial Court having taken note of the documentary evidence of inheritance as well as admission on the part of DW1 categorically admitted that item Nos.1 and 2 are ancestral properties, comes to the conclusion that the plaintiff who is the daughter through his first wife of defendant No.1 comes to the conclusion that she is entitled for share in the suit schedule properties i.e., half

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share. No doubt it is the contention of the counsel appearing for the appellant that he got the children through his second wife also. It is the settled law even the children are illegitimate children, they are also entitled for share in the property of the father and now the father is also given half share in respect of the property and their interest can be protected out of his half share, but the findings of the Trial court and Appellate Court that the properties are joint family properties and same is considered based on the admission as well as documents which have been placed on record. The other contentions of the Appellant's counsel that the item No.3 is a self acquired property and also contended that he was working and the same is not in dispute. The fact is that he derived the property through his father i.e., item No.1 and 2 and to show that without the aid of item Nos.1 and 2 he had purchased item No.3 nothing is placed on record and the same is also taken note of by the Trial Court as well as the First Appellate Court while re-appreciating the material on

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record. When such reasoning is given by the Trial Court as well as the Appellate Court, I do not find any grounds to admit and frame any substantial question of law and hence, no ground is made out to frame any substantial question of law.

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In view of the discussion made above, I pass the following:

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ORDER

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The second appeal is dismissed.

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Sd/- (H.P.SANDESH) JUDGE

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SNC List No.: 1 Sl No.: 47 CT: BHK

Sri. Shivappa v. Smt. Ramarathnamma

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Sri. Shivappa v. Smt. Ramarathnamma

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