- 1 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100197 OF 2020 (PAR/POS) BETWEEN: 1. ADIVEPPA S/O. YALLAPPA MANNIKERI, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: ARBHAVI, TQ: GOKAK, DIST: BELAGAVI. 2. SUMITRA W/O. ADIVEPPA MANNIKERI, AGE: 56 YEARS, OCC: NIL, R/O: ARBHAVI, TQ: GOKAK, DIST: BELAGAVI. …APPELLANTS (BY SRI. GIRISH S. HIREMATH, ADVOCATE) AND: 1. LAKKAVVA W/O. ADIVEPPA MANNIKERI AGE: 39 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O: ARBHAVI, TQ: GOKAK, DIST: BELAGAVI. 2. SHILPA D/O. ADIVEPPA MANNIKERI, AGE: MINOR, OCC: NIL,R/O: ARABHAVI, TQ: GOKAK, DIST: BELAGAVI, SINCE MINOR REP. BY HER MOTHER I.E. RESPONDENT NO.1. …RESPONDENTS (NOTICE TO R1 AND R2 SERVED BUT UNPRESENTED) V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 21.12.2019 PASSED IN O.S.NO.84/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This Appeal is filed by defendants challenging the judgment and decree dated 21.12.2019, passed by the learned I Addl. Senior Civil Judge, Gokak, in O.S.No.84/2016. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. - 3 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 3. The appellants were Defendant No. 1 and 2, the respondents were the plaintiff No.1 and 2, before trial Court. 4. Brief facts of the case of both the parties before the trial Court are as under: 5. It is the case of plaintiffs that defendant No.1 is the husband of plaintiff No.1 and father of plaintiff No.2. Defendant No.2 is calling herself as wife of defendant No.1 but he has not married her. Defendant No.1 has illicit relationship with defendant No.2. The suit property was transferred in the name of defendant No.2, therefore she was arraigned as a party in the suit. It is the further contention of the plaintiffs that father of defendant No.1 was owners in possession of suit property and he died intestate leaving behind his four sons by name Laxmappa, Maruthi, Adiveppa and Hanumant. After the death of father of defendant No.1 by name Yellappa, all his sons succeeded to the said property and they got the property partitioned amongst them long back. Suit property was - 4 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 fallen to the share of defendant No.1 and it is a joint family property. 6. It is further case of plaintiff that defendant No.1 ousted plaintiffs from his house and has not been looking after plaintiffs and on the contrary he has transferred the suit property in the name of defendant No.1. Therefore, plaintiffs requested defendant No.1 for effecting partition and separate possession of their shares in the suit property. Defendant No.1 refused to effect partition. Therefore, plaintiffs filed the suit for partition and prays to decree the suit. 7. The contentions of the defendants are that plaintiff No.1 is the second wife and defendant No.2 is first wife of defendant No.1. Marriage of defendant No.1 with defendant No.2 took place long back. From the said wedlock, defendant No.1 has two sons by name Yellappa and Ramappa and a daughter by name Laxmi. They are necessary parties to the suit. The suit is bad for non- joinder of necessary parties. It is further contended by - 5 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 defendants that the plaintiff No.1 filed petition claiming maintenance from the defendant No.1 in Crl.Misc.No.496/2012. The said case was ended in a compromise on 01.02.2014. In the said compromise, defendant No.1 gave money to plaintiff No.1 and she relinquished her right over the suit property in favour of defendant No.1. Therefore plaintiffs have no rights to file the suit for partition. With these reasons defendants prays to dismiss the suit. 8. The trial Court on the basis of rival contentions of the parties, framed the following issues: ISSUES 1. Whether plaintiffs proves that defendant No.1 had no right to execute Hakku Bidugade Patra infavour of defendant No.2 in respect of suit schedule property? 2. Whether the defendants proves that valuation and court fee paid by the plaintiffs is not proper and insufficient? 3. Whether plaintiffs are entitled for reliefs claimed in the suit? - 6 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 4. What order or decree? 9. To substantiate their case, plaintiff No.1 was examined herself as PW.1 and examined one witness as P.W.2, and got marked 3 documents as Ex.P.1 to 3. The defendant No.1 examined himself as DW.1 and two witnesses as DW.2 and 3, and got marked four documents as EX.D.1 to D.4. The trial Court after hearing both the parties and appreciating pleading and evidence available on record, answered issue No.1 and 3 in the affirmative, issue No.2 in the negative and decreed the suit by impugned judgment. 10. Heard the learned counsel appearing for both the sides. 11. Learned counsel for the appellants submits that plaintiff No.1 did not prove that she is legally wedded wife of defendant No.1. Defendant No.1 before the trial Court has contended that she was not legally wedded wife of defendant No.1 and he married defendant No.2 long back and from the said marriage, he had four children. - 7 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 The defendant No.1 had illicit relationship with plaintiff No.1 and from the said relationship, plaintiff No.2 was born. The plaintiffs have not examined relevant witnesses to prove their marriage of plaintiff No.1 with defendant No.1. Without any legal evidence, the trial Court erroneously held that plaintiff No.1 is the first wife and legally wedded wife of defendant No.1 and granted the decree, which is erroneous. Therefore, prayed to allow the appeal. 12. Per contra, learned counsel for the respondents submit that defendant No.1 for the first time contended that plaintiff No.1 is not legally wedded wife but he had illicit relationship with plaintiff No.1 and he married to defendant No.2. In Crl.Misc.No.496/2012, both plaintiffs and defendant No.1 compromise and filed compromise petition. In the said petition, defendant No.1 has not at all contended that plaintiff No.1 was not his legally wedded wife and on the contrary, he has admitted that plaintiff No.1 is legally wedded wife and plaintiff No.2 was born - 8 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 from the said wedlock. He never stated about his relationship with defendant No.2. In the present case, a new case is made out by the defendant No.1, which is not acceptable. Even defendant No.2 did not enter the witness box to prove her marriage with defendant No.1. The plaintiffs have examined PW.2 to prove relationship of plaintiff No.1 with defendant No.1. In his cross examination, nothing was brought out to discard evidence of PW.1 and 2. Therefore, plaintiffs have proved that plaintiff No.1 is legally wedded wife of defendant No.1. 13. It is further submission of learned counsel for respondents that in Crl.Misc.No.496/2012, defendant No.1 had paid Rs.75,000/- as full and final settlement towards dues of maintenance and accordingly, the matter was compromised. In the said compromise, plaintiff No.1 and 2 have not at all relinquished their rights over the suit property. The compromise petition is produced before this Court and nowhere in the said compromise petition, there is reference about relinquishment of her right over the suit - 9 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 property. Therefore, said contention of the defendant No.1 is also not acceptable. It is not in dispute that the suit property is a joint family property and plaintiff No.1 and 2 are members of the joint family. Therefore, plaintiff No.1 and 2 are together entitled for 2/3rd share in the suit schedule property. Considering these facts, the trial Court has rightly granted the relief and it does not call for interference. Hence, prayed to dismiss the appeal with cost. 14. From the rival contention of the parties, the following points emerge for our determination: (i) Whether the learned trial Judge erred in holding that plaintiff No.1 is a legally wedded wife of defendant No.1 and from the said relationship plaintiff No.2 was born ? (ii) Whether the learned trial judge erred in granting the share to plaintiff No.1 and 2 ? - 10 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 (iii) Whether findings of the learned trial Judge is illegal, arbitrary, perverse and interference by this Court is required? (iv) What order or decree? 15. Our answers to the point Nos.1 to 3 are in the negative for the following reasons: 16. Points No. 1 to 3 are taken up together for discussion. PW.1 is plaintiff No.1 and wife of defendant No.1. In her evidence she has stated that she is legally wedded wife of defendant No.1 and from the said wedlock plaintiff No.2 was born. Defendant No.1 did not dispute his relationship with plaintiff No.1 and 2, but according to his contention, plaintiff is his second wife. He had illicit relationship with her and from the said relationship plaintiff No.2 was born. In the cross examination of P.W.1 nothing was brought out to discard her evidence regarding her relationship with defendant No.1. Her evidence is corroborated by the evidence of PW.2. - 11 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 17. In the cross examination of P.W.1, she has stated that she married defendant No.1 about 15 years back. In her cross examination even there is no suggestion that she was the second wife or there was no legal marriage between them. On the contrary, it was suggested to PW.1 that defendant No.1 married defendant No.2 and she denied the said suggestion. PW 1 also denied the suggestion that she agreed to relinquish her right over immovable property belonging to him and receiving Rs.75,000/- from him as full and final settlement. Nothing is brought out to disbelieve the evidence of PW.1 18. PW.2 has also stated about marriage between plaintiff No.1 and defendant No.1 and birth of plaintiff No.2 from the said relationship. In his cross examination, there is no suggestion that plaintiff No.1 was not legally wedded wife of defendant No.1. It was suggested to him that defendant No.1 married defendant No.2 and PW.2 pleads ignorance about the said fact. He - 12 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 also denied suggestion that plaintiffs have given up their rights over the suit property at the time of settlement of dispute in a criminal case. 19. DW.1 in his cross examination admits that plaintiff No.1 is his wife and plaintiff No.2 is his daughter. He also admits that in the application filed by plaintiff No.1 claiming for maintenance, he has not contended that plaintiff No.1 was his second wife and defendant No.2 was his first wife. He has further stated that in the said maintenance case, he paid Rs.75,000/- to plaintiffs and settled the matter. He also admitted that no registered document was executed by plaintiff No.1 relinquishing her right over the suit property 20. Defendants examined DW.2 and 3 to prove that plaintiffs have relinquished their rights over the suit property and received an amount of Rs.75,000/-. Both of them have stated regarding the said fact and their evidence was denied by the plaintiffs in their cross examination. Defendants have produced certified copy of - 13 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 the order sheet in Crl.Misc.No.493/2012 at Ex.D.2. It appears that it was a petition filed under Section 127(2) of Criminal Procedure Code for recovering the maintenance amount awarded in favour of plaintiff No.1. The order sheet reveals that the said matter was compromised between the parties. Petitioner of that case is plaintiff No.1 and respondent is defendant No.1 of this case. Plaintiff No.1 herein, admitted receipt of Rs.75,000/-. Defendants also produced Ex.D.3 which is the compromise petition. In the said compromise petition also it is not mentioned that after receipt of Rs.75,000/-, she has given up her right over immovable properties belonging to defendant No.1. Contents of the said documents do not support the contentions of defendant No.1. Moreover it was not suit for partition. On the contrary proceedings to recover maintenance amount awarded by the Criminal Court under Section 125 of Criminal Procedure Code. 21. Plaintiffs have proved that plaintiff No.1 is legally wedded wife of defendant No.1 and from the said - 14 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 wedlock, plaintiff No.2 was born. Defendants were unable to prove that plaintiff No.1 relinquished her right to claim property by receiving Rs.75,000/-. Crl.Misc.No.496/2012 is not pertaining to relinquishment of rights of the plaintiff No.1 over the suit property. 22. Admittedly, there is no registered document executed by plaintiff Nos.1 and 2, relinquishing their rights over the suit property. It is not in dispute that the suit property is a joint family property. Plaintiff No.2 is a daughter born to defendant No.1 and hence she is entitled for a share. It appears that parties are residing in Bombay-Karnataka area. Therefore, when there is a partition between father and a daughter, wife is also entitled for a share. Accordingly plaintiffs together are entitled for 2/3rd share in the suit property. 23. Defendants contended that the suit is bad for non-joinder of necessary parties. Children born from the wedlock of defendant No.1 and 2 are necessary parties in the present suit. It is pertinent to note that defendants - 15 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 have not proved that defendant No.2 is the legally wedded wife of defendant No.1. No witnesses were examined in this regard and it is also not proved that defendant No.2 is the first wife of defendant No.1. No such defences were taken in criminal proceedings initiated by plaintiff No.1 in Crl.Misc.No.496/2012 and he did not deny his liability to pay maintenance to plaintiff No.1 in the said case. Therefore, defendant No.2 cannot be considered as legally wedded wife of defendant No.1 or first wife of defendant No.1. Hence children born from the said wedlock or relationship are not entitled for share in the property during the lifetime of defendant No.1 as per provisions of Section 16 of the Hindu Succession Act. Hence they are not necessary parties and suit is not bad for non-joinder of necessary parties. The trial Court has considered all these facts and rightly decreed the suit and it does not call for any interference by this court. 24. Appellants filed IA No.1/2021 under Order XLI Rule 27 of CPC seeking permission to produce - 16 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 additional evidence. In the affidavit filed in support of said application, it is contended that suit schedule property was self-acquired property of father of defendant No.1 and after death of father of defendant No.1, he succeeded to the suit property under Section 8 of the Hindu Succession Act and hence suit for partition is not maintainable. To prove the said contention, appellants intend to produce certified copy of the sale deed executed in the name of father of defendant No.1. It is pertinent to note that a new case is tried to be made out during the appeal and no such contentions were taken in the written statement filed by defendants. It is an admitted fact that said property is joint family property and it cannot be withdrawn by new defence. Defendants have also not filed any application for amendment of written statement taking the said new contention. Therefore, document sought to be produced is irrelevant to decide the fact in issue. Moreover, no such case was made out by defendants before the trial Court and they cannot make out a new case at the appellate stage. - 17 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 25. In an appeal, additional evidence cannot be produced as of a right. A party to appeal shall seek permission to produce additional evidence and assign proper and justifiable reasons for non production of the same before trial Court. After fulfilling of the conditions stated in Order XLI Rule 27 of Code of Civil Procedure, and also such additional evidence will help the court to pass the judgment permission could be granted. There are no reasons for non-production of the said document before the trial Court. The matter was pending before the trial Court for a period of 3 years and 9 months. Considering these facts appellants are not entitled to produce the said document and said document is not relevant to pass a judgment by this Court. Hence, I.A.No.1/2021 deserves to be rejected. 26. Hence, in view of the above discussions, we answer the point Nos.1 to 3 in the negative. Accordingly, we proceed to pass the following: - 18 - NC: 2025:KHC-D:1995-DB RFA No. 100197 of 2020 ORDER The appeal is dismissed with costs. The judgment and decree dated 21.12.2019, passed in O.S.No.84/2016, by the learned I Addl. Senior Civil Judge and Gokak is confirmed. I.A.No. 1/2021 filed by appellants under Order XLI Rule 27 of CPC is dismissed. The office is directed to send back the trial Court records along with copy of the judgment. The office is directed to draw decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Vb/LIST NO.: 1 SL NO.: 5