- 1 - NC: 2025:KHC:10157 RSA No. 162 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 162 OF 2014 (DEC) BETWEEN: SMT.SEETHALAKSHMI W/O MUKUNDA AGED ABOUT 49 YEARS KALLAHALLI EXTENSION KASABA HOBLI HOSANAGARA TALUK SHIVAMOGA DISTRICT - 577 227. …APPELLANT [BY SRI G BALAKRISHNA SHASTRY, ADVOCATE (VC)] AND: 1. SRI SHEKAR S/O SANNANAIKA AGED ABOUT 48 YEARS R/AT BEGADALLI VILLAGE THAIRULLI SHIMALI POST HOSANAGARA, HOSANAGAR TALUK SHIVAMOGA DISTRICT - 577 227. 2. SMT.PARVATHAMMA W/O GIDDEGOWDA AGED ABOUT 70 YEARS R/AT C/O DR. DINAMANI KUSHAVATHI THENGENA THOTA THIRTHAHALLI TALUK SHIVAMOGA DISTRICT - 577 277. …RESPONDENTS (V/O/D 06.08.2024-SERVICE OF NOTICE TO R1 IS H/S; V/O/D 21.02.2019-SERVICE OF NOTICE TO R2 IS H/S) THIS RSA FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.12.2007 PASSED IN R.A.NO.107/04 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR. DN.) AND JMFC., SAGAR, PARTLY ALLOWING THE APPEAL AND SETTING Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:10157 RSA No. 162 of 2014 ASIDE THE JUDGMENT AND DECREE DATED 26.10.2004 ON O.S.NO.144/94 THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., HOSANAGAR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 11.12.2007 passed by Addl. Civil Judge (Sr.Dn.) and JMFC, Sagar, in R.A.no.107/2004 partly modifying judgment and decree dated 26.10.2004 passed by Civil Judge (Jr.Dn.) and JMFC, Hosanagar, in O.S.no.144/1994, this appeal is filed. 2. Brief facts as stated are, appellant herein (plaintiff no.1) along with respondent no.2 (plaintiff no.2) filed O.S.no.144/1994 against respondent no.1 herein (defendant) for declaration and injunction. In plaint, it was stated, plaintiff no.2 was earlier married to one Sri Somanaik of Madamakki village, and respondent no.1 (defendant) was born to them. When Somanaik died within two years of marriage, plaintiff no.2 married Sri Giddegowda of Begadali village and that plaintiff no.1 was their daughter. - 3 - NC: 2025:KHC:10157 RSA No. 162 of 2014 3. It was stated, suit properties were ancestral properties of Giddegowda, who had died prior to filing of suit. Though not having any right in suit property, when name of defendant was mutated in revenue records, plaintiffs were constrained to file O.S.no.144/1994 for declaration and injunction. 4. On appearance, defendant filed written statement admitting relationship of plaintiff no.1 and 2 with Giddegowda, but denied that he was son of first husband of plaintiff no.2. It was contended, he was son of Giddegowda and plaintiff no.2. It was contended, Giddegowda's property was acquired for Varahi project and compensation awarded. Plaintiff no.1 had filed objections against defendant receiving compensation amount. In that regard, a panchayat was held on 20.07.1984, in presence of elders, wherein Rs.18,000/- and Rs.2,500/- were paid to plaintiffs no.1 and 2. Therefore, it was contended plaintiffs had no right over suit property and prayed for dismissal of suit. 5. Based on pleadings, trial Court framed following Issues: - 4 - NC: 2025:KHC:10157 RSA No. 162 of 2014 1. Whether the plaintiffs prove that the defendant is the son born to the 2nd plaintiff from her first husband Somanaika? 2. Whether the defendant proves that he is the only son of Giddegowda? 3. Whether the defendant proves that the 1st plaintiff has already received compensation amount of Rs.18,000/- from the office of the special L.A.O. and also sum of Rs.2,500/- as pleaded in the written statement in lieu of her entire share? 4. Whether the plaintiffs prove that they are entitled declaration as sought for? 5. What decree or order? 6. To substantiate their case, plaintiff no.1 examined herself and another as PWs.1 and 2 and got marked Exhibits P1 to P5. In rebuttal, defendant examined himself and three others as DWs.1 to 4 and got marked Exhibits D1 and D12. 7. On consideration, trial Court answered issues no.1, 2 and 4 in negative, issue no.3 partly in affirmative and partly in negative and issue no.5 by dismissing O.S.no.144/1994. Aggrieved, plaintiff no.1 filed R.A.no.107/2004 on various grounds. Based on same, first appellate Court framed following: 1. Whether the appellant proves that she is entitled to permit to adduce additional evidence? 2. Whether the appellant proves that the judgment is not sustainable, perverse and needs to be interfered? 3. What Order? - 5 - NC: 2025:KHC:10157 RSA No. 162 of 2014 8. On consideration, it answered point no.1 in negative, point no.2 partly affirmative and point no.3 by allowing appeal in part and holding plaintiffs are entitled for partition and separate possession of their 1/4th share each in suit property. Aggrieved, plaintiff no.1 had filed this appeal. 9. Sri G.Balakrishna Shastry, learned counsel for appellant-plaintiff no.1 submitted, impugned judgment and decree passed by both Courts were contrary to law and without proper appreciation of evidence on record. It was submitted, plaintiff no.2 was mother while plaintiff no.1 was daughter and defendant was son of plaintiff no.2. But as defendant was born to plaintiff no.2 from her marriage to Somanaik, defendant was not entitled for share in properties of Giddegowda, whom plaintiff no.2 married later and plaintiff no.1 and Rathnamma were born to Giddegowda. Hence, after death of Giddegowda, his properties would devolve on plaintiffs. But, without any right, defendant no.2 had got entered his name in revenue records of suit properties. Hence suit was filed. 10. It was submitted, though plaintiff no.1 was examined and relevant material produced to establish their - 6 - NC: 2025:KHC:10157 RSA No. 162 of 2014 case that defendant was not Giddegowda's son, merely on ground of non-examination of plaintiff no.2, trial Court dismissed suit. While, first appellate Court took note of admission of DW.1 that another daughter Rathnamma was not brought on record, modified trial Court decree by holding plaintiffs entitled for 1/4th share each in suit property. It was submitted, plaintiff no.2 had died during pendency of first appeal and considering same, shares would require to be modified to 1/3rd each to plaintiff no.1, defendant and Rathnamma and prayed for modifying judgment and decree passed by both Courts to this extent. 11. In light of above contentions, learned counsel submitted following substantial question of law would arise for consideration: "Whether judgment and decree passed by both Courts are sustainable without considering legal proposition that whether defendant was entitled for share in property of 1st plaintiff's father Giddegowda, when he was born to Somanaik - 1st husband of Smt.Parvathamma?" 12. Heard learned counsel and perused impugned judgment and decree passed by both Courts. Respondents are served and unrepresented. - 7 - NC: 2025:KHC:10157 RSA No. 162 of 2014 13. This second appeal is by plaintiff no.1, challenging concurrent finding about right of defendant for share in suit property and against divergent decree of first appellate Court, allowing appeal in part and holding each of plaintiffs is entitled for 1/4th share in suit property. 14. Above submissions would indicate, there is no dispute about defendant being son of plaintiff no.2 along with plaintiff no.1. There is also no dispute that suit properties belonged to Giddegowda - father of plaintiff no.1 and husband of plaintiff no.2. Plaintiffs' contention before trial Court was that defendant was born to plaintiff no.2 from her earlier marriage to Somanaik, who died within two years of marriage, after which she married Giddegowda and plaintiff no.1 was born to them. Therefore, defendant was not entitled for any share in suit property. 15. Since, plaintiffs are seeking for relief of declaration, burden to establish that defendant was born to Somanaik and plaintiff no.2, would be on plaintiffs. Only evidence led by plaintiffs was examination of plaintiff no.1 as PW.1 and marking - 8 - NC: 2025:KHC:10157 RSA No. 162 of 2014 of judgment and decree in LAC no.34/87, demand register extracts and genealogical tree. 16. Though, mother of plaintiff no.1 and defendant had joined plaintiff no.1 in seeking declaration about defendant being born to her from her 1st marriage to Somanaik, pleadings appear bereft of particulars of her marriage to Somanaik, place and date of birth of defendant, date of death of Somanaik, as well as date of her marriage with Giddegowda. 17. Besides documents marked i.e., Exs.P1 and 2 could be relied materials only to show that properties of Giddegowda were acquired and application for enhancement of compensation filed by defendant was allowed. However, same would not be conclusive material insofar as relationship of parties. Moreover, it would appear plaintiffs had not filed any application for determination of their rights by Land Acquisition Officer. 18. Though above factors were not taken into account by trial Court, it dismissed suit drawing adverse inference against plaintiffs for not examining plaintiff no.2 - mother of defendant or any of neighbors/relatives as witnesses. Trial - 9 - NC: 2025:KHC:10157 RSA No. 162 of 2014 Court noted, when defendant totally denied about plaintiff no.2 ever being married to Somanaik, her examination as a witness would be imperative. 19. Trial Court also examined evidence led by defendant, examined himself as DW.1 and three other independent persons as DWs.2 to 4. It observed, plaintiffs failed to elicit any material to discredit deposition of defendant. It also noted, several Demand Register extracts, Record of Rights and Revenue records indicated mutation of name of defendant to properties of Giddegowda as legal heir on death of Giddegowda. He had also produced voters list as Exs.D.10 and 11, showing father's name as Giddegowda. It also referred to depositions of DWs.2 to 4 - panchas, who had participated in conciliation of dispute between plaintiff no.1 and defendant leading to execution of Ex.D.1 - Relinquishment Deed, Ex.D2- Acquittance Roll of Land Acquisition Office, wherein plaintiff no.1 had acknowledged receipt of Rs.18,000/- etc. Thus, conclusion/findings of trial Court are after due consideration of entire material on record. 20. In appeal, first appellate Court on re-appreciation, concurred with findings insofar as relationship between parties - 10 - NC: 2025:KHC:10157 RSA No. 162 of 2014 qua suit property, but taking note of admission by DW.1 that there was another daughter Rathnamma of plaintiff no.2, exercised inherent powers and after holding that plaintiffs ought to have sought for partition, set-aside dismissal of suit, and granted alternative decree for partition and separate possession of 1/4th share each to plaintiffs no.1 and 2, defendant and Rathnamma respectively. 21. When both Courts have passed judgment and decree after evaluation of pleadings and evidence on record and conclusion arrived appears based on same, no substantial question of law would arise for consideration. Even if, plaintiff no.2 died during pendency of proceedings, same is not reported either before first appellate Court or before this Court, in manner known to law, as well as on ground that modification of shares consequent to death of sharers could be dealt within proceedings for drawing Final Decree. 22. In view of above, while holding that no substantial question of law would arise for consideration, appeal is disposed of confirming judgment and decree passed by first appellate Court, but with liberty to appellant to seek - 11 - NC: 2025:KHC:10157 RSA No. 162 of 2014 modification of shares consequent to death of plaintiff no.2, by establishing same, in final decree proceedings. Sd/- (RAVI V HOSMANI) JUDGE Psg List No.: 1 Sl No.: 43