Sri Venkatesh Vs Thayamma

W/O LATE VENKATAIAH @ KULLAIAH AGED ABOUT 48 YEARS RESIDING AT AMBADAHALLI VILLAGE, VIRUPAKSHIPURA – HOBLI, CHANNAPATTANA –TALUK, RAMANAGARA DISTRICT-562 138.

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4. THIMMAMMA

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W/O LATE KENCHE GOWDA @ MUDUKE GOWDA AGED ABOUT 94 YEARS, RESIDING AT AMBADAHALLI VILLAGE, VIRUPAKSHIPURA – HOBLI, CHANNAPATTANA –TALUK, RAMANAGARA DISTRICT-562 138.

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…RESPONDENTS

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(BY SRI. H. JAYANATH, ADVOCATE FOR R1 TO R3, VIDE ORDER DATED 21/02/2019, APPEAL STANDS ABATED AGAINST R-4)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 1.8.2013 PASSED IN R.A.NO.84/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATTANA, RAMANAGAR DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 27.2.2012 PASSED IN O.S.NO.146/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, CHANNAPATTANA.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 01.08.2013 passed in R.A. No.84 of 2012 by the learned Senior Civil Judge and JMFC, Channapattana.

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants and respondent No.1 and 2 were the plaintiffs.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants seeking partition and separate possession regarding the suit schedule properties. It is contended that the suit properties are the ancestral properties of one Venkataiah @ Kullaiah. The said Venkataiah @ Kullaiah had 2 wives and that the defendants are the

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children of said Venkataiah through his first wife by name Thimmamma and that the plaintiffs are the children from the second wife by name Kempamma. It is contended that the said Venkataiah married their mother after the death of the first wife. It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. No partition is effected between the plaintiffs and the defendants. The plaintiffs demanded for partition and separate possession. However, the defendants denied to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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The defendants have filed a written statement denying the averments made by the plaintiffs in the plaint. They have denied the relationship between the parties and contended that the name of their mother is not Thimmamma but it is Yellamma. The

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plaintiffs are the strangers to their family. It is contended that their mother had a daughter by name Gowramma and the suit is bad for non-joinder of necessary parties. It is also contended that suit item Nos.3 and 5 properties are not standing in their names. Accordingly, on these grounds, prays to dismiss the suit.

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The Trial Court, based on the pleadings of both the parties, framed the relevant issues.

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The plaintiffs, to substantiate their case, examined 4 witnesses as PW1 to PW4 and marked 16 documents as Ex.P1 to Ex.P16. On the other hand, the defendants, in support of their defence, examined 3 witnesses as DW1 to DW3 and marked 6 documents as Ex.D1 to Ex.D6.

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The Trial Court, after recording the evidence of both the parties, on hearing the parties and after appreciating the verbal and documentary evidence

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on record, dismissed the suit of the plaintiffs with costs vide judgment and decree dated 27.02.2012.

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The plaintiffs, aggrieved by the judgment and decree passed by the Trial Court in O.S. No.146 of 2001, preferred the appeal on the file of the learned Senior Civil Judge and JMFC, Channapattana.

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The First Appellate Court, on hearing the parties and after re-appreciating the verbal and documentary evidence, allowed the appeal vide judgment and decree dated 01.08.2013. The judgment and decree passed in O.S. No.146 of 2001 was set aside. The suit of the plaintiffs in O.S. No.146 of 2001 was partly decreed. The plaintiffs were held entitled to 7/30^th share each in item Nos.1, 2 and 4 of the suit schedule properties. The First Appellate Court also directed to implead their mother i.e., Kempamma and the mother of deceased Venkataiah @ Kullaiah i.e., Thimmamma in the Final Decree Proceedings.

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The defendants, aggrieved by the judgment and decree passed by the First Appellate Court, have filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the defendants and the learned counsel for the plaintiffs.

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Learned counsel for the defendants submits that, the plaintiffs and the defendants are not related to each other and the plaintiffs are the strangers to the defendants’ family. He submits that, no material is placed on record by the plaintiffs to prove the relationship. He submits that the mother of Venkataiah @ Kullaiah denied the relationship with the plaintiffs. However, the said aspect was not adequately considered by the First Appellate Court. He submits that, the Trial Court, considering the entire evidence on record, has rightly passed the judgment holding that the plaintiffs have failed to prove that they are the daughters of late Venkataiah @ Kullaiah thorugh his second wife Kempamma. He

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submits that, the judgment and decree passed by the First Appellate Court is arbitrary and perverse and the same is liable to be set aside. Accordingly, on these grounds, prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the contention of the plaintiffs that they are the children from the second wife of late Venkataiah. However, on the other hand, the defendants contend that the plaintiffs are strangers to their family.

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The plaintiffs to substantiate their case, examined their next friend i.e., their mother as PW1 who reiterated the plaint averments in the examination in chief and produced the documents marked as Exs.P1 to P16. The plaintiffs also examined 3 other

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witnesses as PW2 to PW4. Conversely, the defendants, in support of their defence, defendant No.1 was examined as DW1, who reiterated the written statement averments in the examination in chief and produced the documents marked as Exs.D1 to D6. They also examined 2 other witnesses as DW2 and DW3 who deposed on the same lines as that of DW1.

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In the oral testimony of DW1, he has deposed that he is the son of Venkataiah @ Kullaiah from his first wife. He also deposed that he knows Kempamma – the mother of the plaintiffs. However, DW1 did not state who is the second wife of the late Venkataiah @ Kullaiah. However, it is pertinent to note that, Ex.P2 is the school register extract of one Ratnamma, wherein the name of the father is mentioned as Venkataiah and Ex.D3 is the school admission register extract, wherein the father’s name of Tayamma – plaintiff No.1 is mentioned as

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Venkataiah. Exs.P11 and P12 are the widow pension ID card and widow pension order, respectively which demonstrates that Kempamma is the wife of Venkataiah.

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The oral testimony of DW1 corroborates with Exs.P2, P11 and P12 and makes the case of the plaintiffs’ probable. The First Appellate Court, considering Section 50 of the Indian Evidence Act, has rightly recorded a finding of fact that the plaintiffs have proved that they are the daughters of late Venkataiah @ Kullaiah and item Nos.1, 2 and 4 of the suit schedule properties are the ancestral properties of their father Venkataiah @ Kullaiah. The First Appellate Court has rightly passed the impugned judgment, after adequately considering the oral testimony of DW1 corroborating with Exs.P2, P11 and P12.

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The First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court,

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wherein the Trial Court, considering the age of the

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plaintiffs, had recorded a finding against the plaintiffs. Hence, I do not find any error in the impugned judgment and no substantial question of law arises for my consideration in this appeal. Accordingly, I proceed to pass the following order:

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ORDER

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(I) The Regular Second Appeal is dismissed .

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