- 1 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 17TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 5774 OF 2013 BETWEEN: 1. RUDRAWWA W/O. DHARMANNA DALAWAR @ BATAKURKI, AGE: 67 YEARS, OCC. HOUSEHOLD WORK, R/O. JANAMATTI, TQ. BILAGI-581322, DIST. BAGALKOTE. 2. RUDRAWWA D/O. DHARMANNA DALAWAR @ BATAKURKI, AGE: 47 YEARS, OCC. HOUSEHOLD WORK, R/O. JANAMATTI, TQ. BILAGI-581322, DIST. BAGALKOTE. 3. RENUKA W/O. SHIRDHAR KARADIGUDDA, AGE: 44 YEARS, OCC. HOUSEHOLD WORK, R/O. JANAMATTI, TQ. BILAGI-581322, DIST. BAGALKOTE. …APPELLANTS (BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE) AND: ROOPA @ IRAVVA CALLING HERSELF W/O. PRABHU DALAWAR @ BATAKURKI, AGE: 23 YEARS, OCC. HOUSEHOLD WORK AND AGRICULTURE, R/O. JANAMATTI, TQ. BILAGI-581322, DIST. BAGALKOTE. …RESPONDENT (BY SRI. SANTOSH B. MANE, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DTD. 24.08.2013 PASSED IN R.A.NO.3/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE BILAGI, CONFIRMING THE JUDGMENT AND DECREE DTD.17.01.2013 PASSED IN O.S.NO.49/2009 ON THE FILE OF CIVIL JUDGE AND JMFC BILAGI BY ALLOWING THE TOP NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.18 10:35:34 +0530 - 2 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard. 2. The appellants are the defendants in O.S.No.49/2009, which was filed for partition and separate possession. The appellants having suffered the decree in the Trial Court and in first appeal i.e., in R.A.No.3/2013, are before this Court in second appeal. 3. The case of the plaintiff before the Trial Court is that, she married one Prabhu, who is the son of defendant No.1 and brother of defendants No.2 and 3 on 11.05.2006 as per the custom and rituals prevailed in their community. It was alleged that she led the marital life with the said Prabhu for a short span of two years and thereafter, he died an untimely death. When the appellant sought for her 1/4th share in the suit schedule property, the defendants denied her share and therefore, she was constrained to file the suit. She contended that the marriage was solemnized as per the rituals prevailing in their community - 3 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 and the defendants are unjustly denying her share in the suit schedule property. 4. The said suit was resisted by the defendants on the ground that the plaintiff is not the wife of the deceased Prabhu, the relationship is not admitted. They contended that the plaintiff is not entitled for any share that would fall to the share of deceased Prabhu, unless the marriage is proved by the plaintiff. The defendants contended that the plaintiff has no right, title or interest over the suit schedule property and the suit is barred by time and as such, the suit be dismissed. 5. On the basis of the above pleadings, the Trial Court framed the following issues. i. Whether the plaintiff proves that suit schedule properties are the joint family properties? ii. Whether the plaintiff is entitled for relief as prayed for? iii. What order or decree? Addl. Issue No.1 Whether the plaintiff proves that, she is legally wedded wife of deceased Prabhu? - 4 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 6. In the trial, the plaintiff was examined as PW1 and Exs.P1 to 7 were marked in evidence. Two witnesses were examined on her behalf as PW2 and PW3. The defendant No.2 was examined as DW1 and no document was produced. 7. After hearing the arguments, the Trial Court answered issue No.1 and 2 and additional issue in the ‘affirmative’ and proceeded to decree the suit. Being aggrieved, the defendants approached the First Appellate Court in R.A.No.3/2013 and the same came to be dismissed by the impugned judgment. 8. Learned counsel appearing for the appellants submits that the Trial Court and First Appellate Court erred in appreciating the evidence in a proper way. It is his contention that Ex.P3 is only a pre-marriage Yadi, where an agreement was reached between the parties for the marriage. He contends that the testimony of the PW2 and PW3 show that their say is unbelievable and the Trial Court relied on secondary evidence i.e., photographs without the negatives being produced. Therefore, it is contented that there is perversity in the appreciation of the evidence. - 5 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 9. A careful perusal of the records would reveal that Exs.P6 and P7 are the photographs which were produced before the Trial Court. These photographs show that marriage had been performed between the deceased Prabhu and the plaintiff. The cross-examination of DW1 shows that she has admitted that in the said photograph, one of the person is the deceased Prabhu. The records also reveal that she refused to identify the plaintiff in the said photograph. Further, it is relevant to note that the photographs have been marked in the cross-examination of the DW1, since she had identified one of the person in the photograph as the deceased Prabhu. 10. Obviously, no objections were raised at the time of admitting said documents in evidence. So also, Exs.P6 and P7 are marked in the cross-examination of DW1, since, she admitted that the deceased Prabhu was seen in the said photograph. Simply because DW1 denies to identify the plaintiff, it cannot be said that part of the document has to be admitted and the remaining part has to be rejected. Since the document is marked in the cross examination on the basis of the admission of DW1, the question of primary evidence and secondary evidence - 6 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 would not arise. The rules of evidence would not be applicable if a document confronted to a witness is admitted. In that view of the matter, this Court does not find any perversity so far as admission of Exs.P6 and P7 are concerned. 11. So far as Ex.P3-Yadi is concerned, it may be seen that the document does not mention the date as per the Hindu calendar. It mentions that the date is 1925 Shake, Subhanu Samvatsara and that it was a Saturday etc. It is pertinent to note that though Ex.P3 is only a document which was prepared at the time of betrothal between the parties, the testimony of PW2 and PW3 clearly depict that they were present at the time of the marriage and they have spoken about the marriage. 12. Learned counsel for the appellants submits that the custom as stated by PW2 and PW3 has not been established by the plaintiff. It is pertinent to note that the custom as stated by PW2 and PW3 was not in question before the Trial Court. The defendants did not plead anything that a different custom prevails between the parties. Therefore, when the question was not raised before the Trial Court and the First Appellate Court, the same cannot be raised in the present appeal. - 7 - HC-KAR NC: 2025:KHC-D:15617 RSA No. 5774 of 2013 13. The Trial Court and the First Appellate Court have rightly come to the conclusion that the plaintiff is entitled for 1/4th in the suit schedule property and it does not require any interference by this Court. The appellants have failed to establish that there is any substantial question of law which needs to be considered. Hence, the appeal is dismissed. SD/- (C M JOSHI) JUDGE RKM CT:PA LIST NO.: 1 SL NO.: 14