- 1 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1575 OF 2015 (PAR) BETWEEN: 1. SMT. BHAGYALAKSHMAMMA @ BHAGYAMMA W/O B.V. MOODLAIAH AGED ABOUT 70 YEARS 2. GOPALAKRISHNA SINCE DECEASED REP. BY LRS. 2(a). SMT. PARVATHAMMA W/O LATE GOPALAKRISHNA AGED ABOUT 53 YEARS 2(b). KEMPARAJANAYAKA S/O LATE GOPALAKRISHNA AGED ABOUT 31 YEARS 2(c). SMT. MAMATHA W/O MADHU D/O LATE GOPALAKRISHNA AGED ABOUT 33 YEARS 2(a) TO 2(c) ARE R/AT 10TH CROSS, HALE BADDIHALLI KYATHASANDRA POST TUMKUR CITY-5742 101. SRINIVASA SINCE DEAD BY LRS. 3. NAGARATHNAMMA K. W/O LATE SRINIVASA AGED ABOUT 35 YEARS Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 4. MASTER HARSHA S/O LATE SRINIVAS AGED ABOUT 16 YEARS 5. MISS POOJA D/O LATE SRINIVAS AGED ABOUT 13 YEARS APPELLENTS NO.4 AND 5 ARE MINORS REP BY THEIR MOTHER AND NATURAL GUARDIAN SMT. NAGARATHNAMMA K. W/O LATE SRINIVASA AGED ABOUT 35 YEARS 6. SMT. HEMAVATHI D/O LATE B.V. MOODLAIAH AGED ABOUT 38 YEARS ALL ARE AGRICULTURISTS, R/O HALE BADDIHALLI TUMKUR CITY-572101. &APPELLANTS (BY SRI. GANGADHARAPPA A.V., ADVOCATE) AND: 1. SMT. CHANDRAMMA @ CHANDRAKANTHAMMA SINCE DECEASED REPRESENTED BY LRS. 1(a). PRAVEEN S/O LATE VENKATARAMAIAH AND SMT. CHANDRAMMA @ CHANDRAKANTHAMMA AGED ABOUT 40 YEARS R/AT NO.288, 5TH MAIN ROAD KCHS LAYOUT BHUVANESHWARINAGAR NAGADEVANAHALLI - 3 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 BENGALURU SOUTH BENGALURU 560056. 2. SMT. THIMMAJAMMA W/O SHIVANNA AGED ABOUT 54 YEARS R/O HALE BADDIHALLI TUMKUR CITY-572101. 3. SMT. KAVERAMMA W/O LATE NAGARAJ AGED ABOUT 68 YEARS R/O HALE BADDIHALLI TUMKUR CITY-572101. &RESPONDENTS (BY SRI. S VISWESWARAIAH, ADVOCATE FOR C/R1(a); SRI. SUNIL KUMAR PATEL, ADVOCATE FOR R2 & R3) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 02.05.2015 PASSED IN R.A.NO.196/2009 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.12.2007 PASSED IN OS.NO.538/2001 ON THE FILE OF THE III ADDL. CIVIL JUDGE (J.D.) AND JMFC AT TUMKUR. THIS APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the defendant Nos.1, legal representatives of defendant Nos.2, 3 and 4, challenging the judgment and decree dated 02.05.2015 passed in R.A. No. 196 of 2009 on the file of the II Additional District and Sessions Court, Tumkur, (hereinafter referred to as 'First Appellate Court') whereby the appeal was allowed, and the judgment and decree dated 01.12.2007 passed in O.S. No. 538 of 2001 on the file of the III Additional Civil Judge (Jr.Dn.), Tumakuru, (hereinafter referred to as 'Trial Court') decreeing in part the suit of the plaintiffs, came to be set aside. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. The brief facts leading to filing of the suit, as averred in the plaint are that, the plaintiff No.1 is the daughter of deceased B. V. Moodlaiah through his first wife- - 5 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 Arasamma. Plaintiff Nos.2, 3 and defendant Nos.2 to 4 are also children of late Moodlaiah through his second wife- Bhagyalakshmamma (Defendant No.1). The father of the plaintiff Nos.2 and 3, -B.V. Moodlaiah, died on 08.07.2000. It is further stated that the suit schedule properties belonged to late Moodlaiah and therefore, the plaintiffs and defendants are entitled for share in the suit schedule property. 4. After service of summons, defendants entered appearance. The defendant No.1 filed written statement denying the averments made in the plaint and same was adopted by defendant No.3, 5 and 6. Defendant Nos. 2 and 4 supported the case of the plaintiffs. It is the case of the defendant No. 1 that, she is the wife of late Moodlaiah and defendant Nos. 2 to 6 are the children of Moodlaiah through her. It is further stated that defendant No.1 is the only wife of Moodlaiah and as such, disputes the claim made in the plaint as to the Arasamma is the wife of - 6 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 Moodlaiah. Accordingly, defendants sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In support of their case, the plaintiffs examined 04 witnesses as PW1 to PW4 and marked 9 documents as Exhibits P1 to P9. The defendants examined 02 witnesses as DW1 and DW2 and marked 01 document as Exhibit D1. 7. The Trial Court, after appreciating the pleadings and evidence on record, by its judgment and decree dated 01.12.2007 decreed the suit of the plaintiffs in part and being aggrieved by the same, the plaintiff No.1 has preferred Regular Appeal in RA.No.196 of 2009 on the file of II Additional District and Sessions Judge, Tumakuru. The said appeal was contested by the respondents therein. The First Appellate Court, after re-evaluating the evidence on record, by its judgment and decree dated 02.05.2015 allowed the appeal and reversed the - 7 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 judgment and decree passed by the Trial Court in OS No.538 of 2001. 8. Being aggrieved by the judgment and decree passed by the Courts below defendant Nos.1, and legal representatives of defendant No.2, 3 and 4 have preferred this Regular Second Appeal under Section 100 of CPC. 9. This court vide order dated 12.01.2021 formulated the substantial questions of law for its consideration. 1. Whether the First Appellate Court is justified in answering Issue No.2 in OS No.538/2001 on the file of III Additional Civil Judge ( Jr.Dn.) and JMFC at Tumakuru ? 2. Whether the First Appellate Court is justified in not drawing adverse inference against 1st plaintiff in withholding the documents in support of the case pleaded by her in the plaint ? 10. I have heard Sri A.V. Gangadharappa, learned counsel for the appellants and Sri. S. Visweswaraiah, learned counsel appearing for the respondent No.1(a) and - 8 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 Sri. Sunil Kumar Patel, learned counsel appearing for the respondent Nos. 2 and 3. 11. Sri A.V. Gandharappa, learned counsel for the appellants contended that, the First Appellate Court has committed an error in not noticing that, the plaintiff No.1 has not proved her relationship with deceased Moodlaiah and there was no proof with regard to the marriage of Arasamma with Moodlaiah, and also the plaintiff No.1 born in wedlock of Arsamma with Moodlaiah. It is also contended by the learned counsel appearing for the appellants that the First Appellate Court has ignored the fact that, the documents produced by the plaintiff No.1 do not establish that plaintiff No.1 is the daughter of late Moodlaiah. Referring to the evidence of PW1, it is argued that, PW1 has failed to establish the relationship with the Moodlaiah and further PW3, is an interested witness and that apart, the PW2 is a stranger to the parties and therefore, sought for interference of this Court. It is also argued by the learned counsel for the appellants that, the - 9 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 finding recorded by the First Appellate Court that, the drafting of the plaint, is incorrect by the learned counsel appearing for the plaintiff, resulting in helping the defendants to prove their case and the said observation made by the First Appellate Court is uncalled for and accordingly, sought for interference of this Court. The finding recorded by the First Appellate Court that, the plaintiff No.1 is an illiterate woman and a widow approached the Court seeking relief of partition and separate possession and there was no need to prove the each and every fact which had happened about five decades back and such finding recorded by the First Appellate Court would indicate that, the First Appellate Court instead of re-appreciating material on record as shown sympathy towards, the plaintiff No.1 and therefore, learned counsel for the appellants sought for interference of this Court. It is further argued that, the onus is on the plaintiff to prove the case on merits and it never shifts on the defendants and therefore, the finding recorded by the - 10 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 First Appellate Court requires interference of this Court. Referring to the postal letters produced at Exhibits P8 and P9, it is argued that none of these documents would be a basis for decreeing the suit of the plaintiff and therefore, sought for setting aside the judgment and decree passed by the First Appellate Court. 12. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court. 13. In the light of the submissions made by the learned counsel appearing for the parties, it is the case of the plaintiff that, the plaintiff is the daughter of deceased Moodlaiah through his first wife Arasamma. In this regard, the genealogical tree produced by the appellants requires for the purpose of understanding the relationship between the parties. - 11 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 14. In order to establish her right, plaintiff has examined three witnesses. In the cross-examination, the plaintiff admits that, she is conversant with reading the Kannada language. PW1 further admits that, no document is produced except the marriage invitation card to show that she is the daughter of Moodlaiah. She also admits that B.V. Moodlaiah (dead) Arasamma (1st Wife) of plaintiff Bhagyalakshmamma @ Bhagyamma (2nd Wife) of plaintiff Chandramma @ Chandrakanthamma (Ptf No.1) Gopalakrishna (Def. No.2) (Appt. No.2) Kaveramma (Ptf No.3) (Res. No.3) Srinivasa (Def No.4) (Dead) Hemavathi (Def No.4) (Appt No.6) Nagarathnamma (Wife) (Appt No.3) Harsha (Appt No.4) Pooja (Appt. No.5) Thimmajamma (Ptf No.2) (Res. No.2) - 12 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 she has not studied in the school. PW1 further deposed that, her son Praveen is doing real estate business in Bengaluru. She also stated that there is discrepancy in the ink in Ex.P9 and further admits that her name in the Ex.P9 is overwritten. She further deposed that no document is produced to establish her address as per Ex.P9. P.W.4 - Puttarasaiah deposed that the plaintiff is the daughter of Arasamma and Arasamma is his sister. It is also forthcoming from the cross-examination of P.W.1 that plaintiff Nos.2 and 3 are the children of B. Bhagyalakshmamma through B.V. Moodlaiah, had dispute with the defendant Nos.2 to 4 and were arrayed as plaintiffs in the suit. P.W.4 admits that, he is not aware about the birth of plaintiff and to whom she got married. He further deposed that he had not visited the house of the plaintiff nor aware about her place of residence. Taking into consideration the finding recorded by the Trial Court, particularly with regard to paragraph 20 of the judgment and decree passed by the Trial Court, I am of the view - 13 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 that, the finding recorded by the Trial Court is just and proper. Considering the finding recorded by the Trial Court, on careful examination of the judgment and decree passed by the First Appellate Court would indicate that, the First Appellate Court totally relied upon Ex.P9 - letter dated 13.12.1998, addressed by the defendant No.4 to the plaintiff and another corresponding letter addressed to plaintiff No.1- Ex.P8, had arrived at a conclusion that, the plaintiff is the daughter of Arasamma through Moodlaiah. The entire re-appreciation of the material by the First Appellate Court is contrary to the records and even the maternal uncle of the plaintiff - P.W.4 himself admits that he is not aware about the details of the plaintiff and the said fact would indicate that, the First Appellate Court has committed an error in re-appreciating the material and same is contrary to scope and ambit of Order XLI Rule 31 of CPC. 15. In the result the substantial question of law referred to above favours the defendants and accordingly, the - 14 - HC-KAR NC: 2025:KHC:36967 RSA No. 1575 of 2015 appellant/defendants herein have made out a case for interference in this appeal. Hence, I pass the following: ORDER i) The Regular Second Appeal is allowed. ii) Judgment and Decree dated 02.05.2015 in R.A.No.196 of 2009 on the file of II Addl. District and Sessions Judge, Tumakuru, is hereby set aside. iii) Judgment and Decree dated 01.12.2007 in O.S.No.538 of 2001 on the file of III Addl. Civil Judge (Jr. Dn.), Tumakuru is hereby confirmed. iv) Suit in O.S.No.538 of 2001 is dismissed. SD/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 50