- 1 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5035 OF 2013 (PAR-) BETWEEN: SHIVAPPA NARAYAN NAIK, AGE: 73 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. …APPELLANT (BY SRI. J.S. SHETTY, ADVOCATE) AND: 1. HOSABAYYA MADEVA NAIK, AGE: 38 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. 2. SMT. PARVATI W/O. MADEVA NAIK, AGE: 64 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. 3. USHA W/O. KAMALAKAR NAIK, AGE: 46 YEARS, R/O: KAGAL, TALUK: HONNAVAR, DIST: UTTARA KANNADA-581343. 4. SEETA MADEVA NAIK, AGE: 37 YEARS, R/O: GUDEANGADI, TALUK: HONNAVAR, DISTRICT: UTTARA KANNADA-581343. 5. GANAPATI RAMACHANDRA HEGDE, AGE: 68 YEARS, R/O: HALANAGADDE, TALUK: KUMTA, DIST: UTTARA KANNADA-581343. 6. KASHINATH RAMAKRISHNA NAIK, AGE: 58 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 DISTRICT: UTTARA KANNADA-581343. 7. VASUDEVA RAMAKRISHNA NAYAK, AGE: 52 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. 8. JANARDHAN RAMAKRISHNA NAYAK, AGE: 60 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. 9. NAGAMMA W/O. SHIVAPPA HARIKANTRA, AGE: 61 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. 10. BANGARI SHIVAPPA HARIKANTRA, AGE: 37 YEARS, R/O: GUDEANGADI, TALUK: KUMTA, DISTRICT: UTTARA KANNADA-581343. …RESPONDENTS (BY SRI. V.G. BHAT, ADVOCATE FOR R1-R4 & R10; R5, R9 STANDS ABATED; R6-R9 ARE SERVED AND UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING THAT THE JUDGMENT AND DECREE DATED 28/06/2012 PASSED BY THE SENIOR CIVIL JUDGE, KUMTA IN R.A.NO.223/2006 CONFIRMING THE JUDGMENT AND DECREE DATED 28/02/2003 PASSED BY THE COURT OF THE PRL. CIVIL JUDGE (JR. DN) KUMTA IN O.S.NO.25/1993, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL AND DECREEING THE SUIT FILED BY THE APPELLANTS WITH COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the plaintiff challenging the judgment and decree dated 28.06.2012 in R.A.No.223/2006 on the file of the Senior Civil Judge, Kumta1 dismissing the appeal and confirming the judgment and decree dated 28.02.2005 in O.S.No.25/1993 on the file of the Principal Civil Judge (Jr.Dn.), Kumta2 dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the deceased Narayan Jattappa and Hosabayya are the children of Jattappa. It is also stated that the plaintiff – Shivappa Narayan is the son of Narayan Jattappa. It is stated that Hosabayya Jattappa died issueless and therefore the plaintiff is the only heir to succeed to the estate of the original propositus Jattappa and therefore the plaintiff has 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 filed O.S.No.25/1993 seeking relief of partition and possession in respect of the suit schedule property. 4. After service of notice, the defendants No.1 to 4, 5, 7, 9 to 11 entered appearance before the Trial Court and contested the matter on merits. The sum and substance of the averments made in the written statement filed by the defendants is with regard to dispute the relationship of the plaintiff stating that the plaintiff is not the son of Narayan. It is also the case of the defendants that the plaintiff is the son of Kutni who was begotten from the illicit relationship and the Kutni was not having any legally wedded husband and accordingly sought for dismissal of the suit. It is also the case of the defendants that the plaintiff has to prove his paternity particularly with regard to the relationship with the father to whom he is born. It is also stated in the written statement that, the revenue records have been transferred into the name of the defendants pursuant to the death of Hosabayya and therefore the defendants sought for dismissal of the suit. - 5 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined 2 witnesses as PW.1 and PW.2 and produced 17 documents and same were marked as Exs.P.1 to P.17. The defendants have examined one witness as DW.1 and got marked 18 documents as Exs.D.1 to D.18. 6. The Trial Court after considering the material on record, by its judgment and decree dated 28.02.2005 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.223/2006 on the file of the First Appellate Court and same was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 28.06.2012, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.25/1993. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. - 6 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 7. I have heard Sri.J.S.Shetty, learned counsel appearing for the appellant and Sri.V.G.Bhat, learned counsel appearing for the respondents No.1 to 4. 8. Sri.J.S.Shetty, learned counsel appearing for the appellant contended that, both the Courts below have not considered the fact that plaintiff is the son of Kutni and the said Kutni is the wife of Narayan and in this regard, both the Courts below have not considered the finding recorded by the competent court in O.S.No.131/1952, wherein it is stated that the deceased Mahadev is not the adopted son of Hosabayya Naik (uncle of the plaintiff) and therefore sought for interference of this Court. 9. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by both the Courts below. It is also contended by the learned counsel appearing for the respondents by referring the revenue records that, after the death of Hosabayya son of Jattappa, revenue records were mutated in the name of his adopted son - Mahadev - 7 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 and on his demise, in the name of the defendants, which would establish the fact that the plaintiff is not the son of Narayan (brother of Hosabayya) and accordingly sought for dismissal of the petition. 10. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below and perused the records. 11. On careful examination of the finding recorded by both the Courts below, it is the case of the plaintiff that, the plaintiff is the son of Narayan. In this regard, no acceptable evidence has been produced before the Trial Court that the plaintiff is the son of Narayan. It is also forthcoming from the finding recorded by the Trial Court that, the plaintiff has produced the judgment and decree in O.S.No.131/1952 and the said suit is pertaining to the legality of adoption of Mahadev by Hosabayya Naik. It is also to be noted that the plaintiff has produced Ex.P.1 to P.17 in which nothing is stated with regard to the - 8 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 relationship of plaintiff with Narayan and the entire case of the plaintiff is that the plaintiff is the son of Kutni and the said Kutni is the wife of Narayan and in this regard though the independent witness has been examined as PW.2 to prove the relationship of plaintiff with Narayan, however, the PW.2 also not deposed as to the relationship of Narayan with the plaintiff and in that view of the matter as the plaintiff himself has failed to establish that he is the son of Narayan and therefore the Trial Court rightly, arrived at a conclusion on issue No.1 that the plaintiff has not proved the relationship with Narayan. In that view of the matter, the Trial Court has rightly dismissed the suit. 12. The First Appellate Court after re-appreciation of the material on record, has considered the fact that the plaintiff has failed to establish his relationship with deceased Narayan and therefore no interference is called for in this appeal as both the Courts below have concurrently held that the plaintiff is not the son of Narayan. - 9 - NC: 2025:KHC-D:5662 RSA No. 5035 of 2013 13. Accordingly, the appeal is dismissed at the stage of admission as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 15