- 1 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5958 OF 2012 (DEC/INJ) BETWEEN: SMT. SANNA THIPPAMMA W/O. CHINNA BORAIAH D/O. NEERALALLI PAPAIAH, AGE: 33 YEARS, OCC: AGRICULTURE, R/O: CHITRADURGA, TQ:KUDLIGI, DIST: BALLARI – 583 126. …APPELLANT (BY SRI. S.S.YADRAMI, SENIOR COUNSEL FOR SRI GIRISH V. BHAT, ADVOCATE) AND: 1. SANNA BORAMMA W/O. NEERALALLI PAPAIAH, SINCE DECEASED BY HER LRS R2 TO R5. 2. DODDA THIPPAMMA W/O. BORAMUTTI D/O. NEERALALLI PAPAIAH, AGE: 31 YEARS. 3. THIPPAMMA W/O. APANI OBAIAH D/O. NEERALALLI PAPAIAH, AGE: 31 YEARS. 4. SHANTAMMA W/O. OCHI BORAIAH D/O. NEERALALLI PAPAIAH, AGE: 28 YEARS. 5. MALLIKARJUNA S/O. NEERALALLI PAPAIAH, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 AGE: 26 YEARS, R2 TO R5 ARE R/O: CHITRANAGONDA, TQ: KUDLIGI DIST: BALLARI – 583 126. 6. BASAPPA VEERABHADRAPPA, AGE: 67 YEARS. 7. SANNA VEERAPPA @ CHENNAVEERAPPA, AGE: 62 YEARS. 8. DODDA BORAIAH S/O. PEDDA BORAIAH, AGE: 62 YEARS. 9. DUPPARA BORAIAH S/O. DUPPARA PALAIAH, AGE: 52 YEARS. 10. D. SANNA PALAIAH S/O. BHUVANNA, AGE: 67 YEARS. 11. SAROJAMMA S/O. BHOOTA PALAIAH, AGE: 24 YEARS. 12. KUNTA OBAIAH S/O. BHUVANNA, AGE: 57 YEARS. 13. CHANDRANNA S/O. KUNTA OBAIAH, AGE: 32 YEARS. 14. PALAIAH S/O. KUNTA OBAIAH, AGE:42 YEARS. 15. MALLIKARJUNA S/O. B.PALAIAH, AGE: 40 YEARS. 16. REDDI PAPAIAH S/O. REDDI PAPAIAH, AGE: 40 YEARS. 17. DEVAMMA D/O. KENGA PALAIAH, AGE: 57 YEARS. 18. SOORI PAPAIAH S/O. AJJANNA BORAIAH, - 3 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 AGE: 52 YEARS. 19. NAGARAJA S/O. SANNA MUTTI BORAIAH, AGE: 30 YEARS. R6 TO R19 ARE R/O: CHITRANAGONDA, TQ: KUDLIGI, DIST: BALLARI – 583 126. …RESPONDENTS (BY SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R2; R3 TO R5, R7, R8, R10 TO R15 AND R18 ARE SERVED; V/O DATED: 11.07.2017 APPEAL AGAINST R6, R9, R16, R17 AND R19 DISMISSED) THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.03.2012 PASSED BY THE FAST TRACK III AT HOSPET IN R.A.NO.16/10 AND THE JUDGMENT AND DECREE DATED 24.11.2009 PASSED BY THE CIVIL JUDGE(SR. DIVN) KUDLIGI IN O.S.NO.54/06, BY ALLOWING THE PRESENT APPEAL AND CONSEQUENTLY THE SUIT OF THE PLAINTIFF MAY KINDLY BE ALLOWED IN ENTIRETY THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the plaintiff being aggrieved by the judgment and decree dated 24.11.2009 passed in OS No.54/2006 on the file of Civil Judge (Sr.Dn.), Kudligi (for short, ‘Trial Court’), by which the suit of the plaintiff was partly decreed declaring her 1/6th share in item Nos.1, 2, 2(a), item Nos.4 to 7 and item Nos.9 to 11 of the suit schedule properties, which is confirmed by the judgment and order dated 30.03.2012 passed in RA No.16/2010 on the file of Fast Track Court-III, Hospet (for short, ‘First Appellate Court’). 2. The above suit is filed by the plaintiff claiming that one Neeralahalli Papaiah had two wives namely Dodda Boramma (first wife) and Sanna Boramma (second wife). Sanna Boramma is the defendant No.1 in the suit. The said Neeralahalli Papaiah married second wife Sanna Boramma (defendant No.1) during the life time of his first wife Dodda Boramma. Plaintiff is the daughter of Dodda - 5 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 Boramma and defendant Nos.2 to 4 are the daughters and sons of Neeralahalli Papaiah from his second wife – Sanna Boramma, the defendant No.1. Dodda Boramma predeceased her husband Neeralahalli Papaiah, who passed away about 2 years back leaving behind the plaintiff and defendant Nos.2 to 5 as his legal representatives. The defendant No.1 has no legal status of a second wife. As such, she is not the legal representative of deceased Neeralahalli Papaiah. Plaintiff requested for partition and separate possession, but the defendants have not effected the partition. Hence, she filed a suit. 3. Defendant Nos.1 to 5 filed written statement contending that defendant No.1 is the first wife of Neeralahalli Papaiah and defendant Nos.2 to 5 are their children. The mother of the plaintiff is the second wife of said Neeralahalli Papaiah, who had married two years after the marriage of the defendant No.1 with said Neeralahalli Papaiah. The plaintiff is the daughter of the second wife of - 6 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 Neeralahalli Papaiah. It is contented that suit item Nos.1, 2, 4, 6 and 7 are the self-acquired properties of Neeralahalli Papaiah. There is no land bearing Sy.No.213 measuring 14.49 acres belonging to Neeralahalli Papaiah. The land bearing Sy.No.210-D measuring 5.72 acres and Sy.No.214 measuring 4.81 acres are the self acquired properties of defendant No.1, which have been purchased out of her own efforts and the contribution made by her parents. The defendant No.1 had filed a suit in OS No.143/1995 on the file of Civil Judge (Jr.Dn.) Kudligi, for declaration of title and for permanent injunction in respect of land in Sy.No.210-D measuring 5.72 acres which was decreed on 10.11.2000. The defendant No. 1 has executed a registered sale deed on 06.07.2006 in the name of defendant No.2 to an extent of 2.6 acres in Sy.No.6/B. The defendant No.1 has also executed a registered gift deed dated 19.05.1968 in favour of defendant No.2 in respect of land bearing Sy.No.179 measuring 4.7 acres. It is contented that item Nos.9 to 11 are the self-acquired properties of Neeralahalli Papaiah. That there are other - 7 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 family members to whom the plaintiff has not made as a parties. Hence, sought for dismissal of the suit. 4. Defendant No.7 also filed written statement denying the plaint averments, contending that he is neither the member of the family nor has got anything to do with family members, but he is the owner of land in Sy.No.181/3 measuring 1 acre, which is his ancestral property. 5. Based on the pleadings on record, the Trial Court framed the following issues and additional issues for its consideration: 1. Whether Plaintiff proves that she was the daughter of Neeralahalli Papaiah through his first wife Dodda Boramma ? 2. Whether the plaintiff further proves that the defendant No.1 was the 2nd wife of Neeralahalli Papaiah ? 3. Whether the plaintiff proves that, the Suit schedule properties are the joint family properties of herself and defendants No.2 and 5? 4. Whether the defendant No.1 proves that. suit land item No.3 and item No.8 and house properties item No.9 to 11 are her self-acquired properties ? - 8 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 5. Is the plaintiff entitled for partition and separate possession of her half share in the suit properties? Additional Issues: 1. Whether defendants prove that the suit is bad for non-joinder of necessary parties as contended in para-1 of Additional Written statement? 2. Whether the 7th defendant proves that he is the owner and in possession of the land bearing Sy.No.181/3 measuring 12 cents situated at Chitragunda village, Kudligi taluk? 6. Plaintiff examined her husband as PW1 and herself as PW2 and two other witnesses as PW3 and PW4 and exhibited 39 documents marked as Ex.P1 to Ex.P39. Defendant No.1 examined herself as defendant No.1 and another witness as DW2 and exhibited 9 documents marked as DW1 to Dw9. 7. On appreciation of the evidence on record, the Trial Court answered issue No.1, 2 and additional issue No.1, 2 in the negative, issue No.3 partly in the affirmative and issue No.4 in the affirmative and consequently, partly decreed the suit as noted above. - 9 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 8. The First Appellate Court, upon appeal filed by the plaintiff in R.A. No.16/2010, framed the following points for its consideration: 1. Is the Trial Court not justified in holding that the Plaintiff is the daughter of Neerlalli Papaiah through his second wife Dodda Boramma? 2. Is the Trial Court not justified in holding that the defendant No.1 is the first wife of Neerlalli Papaiah ? 3. Is the Trial Court not justified in holding that, item No.3 and 8 are the self acquired properties of defendant No.1? 4. Is the suit of the plaintiff bad for mis- joinder of defendant/ respondent No.7? 5. Is it just and necessary to interfere with the Judgment and decree under appeal? 6. What Order or Decree ? 9. On re-appreciation of the evidence on record, the First Appellate Court answered point Nos.1, 2, 3 and 5 in the negative and point No.4 in the affirmative and consequently, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved, the plaintiff is before this Court. - 10 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 10. Sri. S.S. Yadrami, learned Senior Counsel appearing for the plaintiff/appellate reiterating the grounds urged in the memorandum of appeal submits that the Trial Court and the First Appellate Court have erred in relying upon a stray admission made by the plaintiff with regard to the age of the daughter of the defendant No.1 without appreciating the other material evidence made available on the record. That the Trial Court and the First Appellate Court accordingly, based on the stray admission made by the plaintiff ought not to have decreed the suit denying the legitimate right, title and interest of the plaintiff. 11. He further submits that the reasoning and conclusion arrived by the Trial Court holding that the defendant No.1 to be the first wife of deceased Neeralahalli Papaiah is contrary to the material evidence made available on record. Hence, there is perversity in the judgment, giving rise to substantial question of law. 12. Per contra, Sri. Hanumanthareddy Sahukar, learned counsel appearing for the defendants/respondents - 11 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 justifying the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court submits that the very suit filed by the plaintiff is for partition claiming herself to be the daughter of Neeralahalli Papaiah from his first wife and the case of the defendants is that the defendant No.1 was the first wife of Neeralahalli Papaiah and the mother of plaintiff was the second wife. As such, in the cross examination the admission made by the plaintiff cannot be said to be a stray admission. In the light of the admission made by the plaintiff regarding the relationship, no further evidence was required in the matter. Hence, he submits no substantial question of law would arise for consideration. 13. Heard. Perused the records. 14. Facts narrated above do not require reiteration. The only contention urged by the plaintiff in the plaint is that Neeralahalli Papaiah, her father had married one Dodda Boramma (first wife) and Sanna Boramma (second wife). The Plaintiff is the daughter of Dodda Boramma - 12 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 (first wife). Defendant Nos.2 to 4 are the children of Sanna Boramma (second wife). It is based on this premise, the plaintiff has sought for partition of the property between herself and defendant Nos.2 to 4 and sought to disentitle defendant No.1 from any share in the suit property. 15. The Trial Court while appreciating the evidence has taken note of the fact that the plaintiff constituted and authorized her husband to lead evidence by examining himself as PW1 and in the cross examination the said PW1 has pleaded ignorance with regard to the marital status of Neeralahalli Papaiah. Admittedly, the said person had no personal knowledge and competency of his testimony has been declined by the Trial Court and the First Appellate Court. Though the plaintiff has examined PW3 and PW4 with regard to the relationship/marriage of Neeralahalli Papaiah with Dodda Boramma and Sanna Boramma, the said witnesses have also pleaded ignorance of the dates of their marriage. - 13 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 16. Section 50 of the Evidence Act deals with relevancy of an opinion of a person having special knowledge regarding relationship between two individuals. Thus, the said provision contemplates examination of witnesses with regard to the relationship, who were expected to know in the natural course of action about the relationship of the parties. In that light, PW1- husband of the plaintiff cannot in the circumstances be considered as the competent witness. That apart, he himself has pleaded ignorance regarding the relationship/marriage of Neeralahalli Papaiah with Dodda Boramma and Sanna Boramma. Similarly, is the case with respect to PW3 and PW4 who have also pleaded their ignorance with regard to the date and year of the marriage of Neeralahalli Papaiah with his wives Dodda Boramma and Sanna Boramma. 17. The evidence of the said witnesses is hardly of any use on coming to the deposition of PW2 who has filed the suit claiming herself to be the daughter of Neeralahalli - 14 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 Papaiah from his first wife Dodda Boramma, has admitted during her deposition as under: “£À£ÀUÉ 30 ªÀµÀð, £ÀªÀÄä vÁ¬ÄUÉ £Á£ÀÄ M§â¼Éà ªÀÄUÀ¼ÀÄ. ¸ÀtÚ¨ÉÆÃgÀªÀÄä½UÉ 3 ºÉtÄÚ MAzÀÄ UÀAqÀÄ. ¸ÀtÚ¨ÉÆÃgÀªÀÄä¼À zÉÆqÀتÀÄUÀ¼ÀÄ zÉÆqÀØw¥ÀàªÀÄä. zÉÆqÀØw¥ÀàªÀÄä¼ÀÄ £À£ÀVAvÀ »jAiÀĪÀ¼ÀÄ. £À£Àß vÀAzÉ AiÀiÁªÁUÀ ªÀÄzÀĪÉAiÀiÁzÀgÀÄ JAzÀÄ UÉÆwÛ®è. ¸ÀtÚ¨ÉÆÃgÀªÀÄä¼À£ÀÄß ªÀÄzÀÄªÉ DzÀ 2 ªÀµÀðPÉÌ £À£Àß vÀAzÉAiÀÄÄ zÉÆqÀبÉÆÃgÀªÀÄä¼À£ÀÄß ªÀÄzÀÄªÉ DzÀgÀÄ JAzÀgÉ ¤d.” 18. The aforesaid deposition of the plaintiff who examined herself as PW2 cannot be construed as a stray admission as sought to be contended by the learned Senior Counsel for the appellant. This is for the reason the pleadings of the parties and the issues framed are specifically with regard to determination of controversy of Neeralahalli Papaiah’s marriage with Dodda Boramma and Sanna Boramma and with regard to the question as to whether the plaintiff is the daughter of first or the second wife. 19. When the very case of the parties as with regard to determination of their relationship, the deposition of the plaintiff as recorded above, can under no stretch of imagination be construed as a stray admission. - 15 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 Besides, the patterns of the names may also require consideration. Name of the plaintiff is Sanna Thippamma and name of the daughter of defendant No.1 is Dodda Thippamma. It is not uncommon that name of the eldest child is generally referred to with an affix indicating seniority as ‘Dodda’ and ‘Sanna’, which appears to be the case at hand. In this case, the plaintiff being Sanna Thippamma and her elder sister being Dodda Thippamma would determine their age and the order. 20. In the light of the aforesaid admission, the Trial Court and the First Appellate Court have committed no error in partly decreeing the suit holding the plaintiff to be the child of Neeralahalli Papaiah from his second wife and granting her 1/6th share in his self-acquired properties. No substantial question of law would arise for consideration. Accordingly, the appeal is dismissed. 21. It is made clear that the applicants have any right, they are at liberty to seek such remedy as may be available and permissible under law. - 16 - HC-KAR NC: 2025:KHC-D:8439 RSA No. 5958 of 2012 22. In light of the dismissal of the appeal, pending applications, if any, stand disposed off. Sd/- (M.G.S. KAMAL) JUDGE SMM List No.: 1 Sl No.: 3