- 1 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.200244 OF 2024 (PAR/POS) BETWEEN: PADMAVATHI D/O SANGAPPA W/O KOTREPPA NAGATIKAR, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: LINGASUGUR, TQ: LINGASUGUR, DIST: RAICHUR – 584 122. …APPELLANT (BY SRI B.BHIMASHANKAR & SRI PRADEEP KUMAR, ADVS.) AND: RAMESH S/O SANGAPPA DARJI (SIMPI) AGE: 62 YEARS, OCC: SUPERVISOR VASU DATTA CEMENT FACTORY, SEDAM TQ: SEDUM, DIST: VIJAYAPURA - 585 222. …RESPONDENT (V/O DATED 09.04.2025 NOTICE TO RESPONDENT RAMESH IS HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER 42 RULE 2 THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20TH SEPTEMBER 2023 IN R.A.NO.58/2022 ASSED BY THE LEARNED I ADDITIONAL DISTRICT JUDGE KALABURAGI WHILE CONFIRMING THE JUDGMENT AND DECREE DATED 03.08.2022 IN O.S.NO.82/2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C., AT JEWARGI, CONSEQUENTLY DECREE THE SUIT OF PLAINTIFF AS PRAYED FOR TO MEET THE ENDS OF JUSTICE. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This Second appeal is arising from the concurrent finding in a suit for partition. Plaintiff’s suit and appeal are dismissed. Hence, the plaintiff is before this Court. 2. The genealogy alleged by the plaintiff is as under: Sangappa (Died) Anjanabai (Died during pendency of the suit) Padmavathi Ramesh Plft. Def.1 3. Plaintiff claims to be the daughter of Sangappa and Anjanabai. According to the plaintiff, the couple has two children i.e., defendant No.1-Ramesh and the plaintiff. The suit is filed after the demise of Sanagappa, who died - 3 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 in 1982. The suit is filed against defendant No.1 the brother and Anjanabai, the mother of the plaintiff. 4. Defendant No.1 filed a written statement disputing the status of the plaintiff as the daughter of Sangappa and Anjanabai. Defendant No.2 though appeared did not file the written statement and it is stated that written statement of defendant No.1 is not adopted by defendant No.2. 5. Defendant No.1 took a stand that the plaintiff is the daughter of Mahadevappa and Kusumabai. According to defendant No.1, Kusumabai is the sister of defendant No.2-Anjanabai. 6. The plaintiff filed a rejoinder to the stand taken in the written statement and admitted that Kusumabai is the sister of Anjanabai. However, denied the contention that the plaintiff is the daughter of Mahadevappa and Kusumabai. - 4 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 7. It is stated in the rejoinder that on account of the drought situation, the parents of the plaintiff, namely Sangappa and Anjanabai could not afford to send the daughter/plaintiff to the school, as such, she was allowed to stay with Mahadevappa and Kusumabai and Mahadevappa and Kusumabai admitted the plaintiff to the school projecting them as the parents of plaintiff- Padmavathi. 8. Before the Trial Court, the plaintiff led evidence to substantiate the claim and also examined Kusumabai and her daughter. Both Kusumabai and Kusumabai’s daughter stated that Padmavati is the daughter of Sangappa and Anjanabai. 9. Defendant examined himself, and no witnesses were examined on behalf of defendant No.1. It is stated that defendant No.1 offered to examine Anjanabai as the witness on his behalf. However, he did not choose to examine Anjanabai as the witness. - 5 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 10. At this juncture, it is stated that an application was filed by the plaintiff for a DNA test of the plaintiff and defendant No.1, to establish the status of the plaintiff as the daughter of Sangappa and Anjanabai. Defendant No.1 filed objections to the said application. By that time, defendant No.2 had died. The Trial Court rejected the said application and consequently, the Trial Court dismissed the suit on the premise that the plaintiff’s status as the daughter of Sangappa and Anjanabai is not established. 11. The plaintiff filed an appeal before the First Appellate Court. The First Appellate Court also did not accept the plaintiff’s plea and dismissed the appeal. Hence, the second appeal. 12. Learned counsel appearing for the plaintiff/appellant raised the following contentions: (a) The plaintiff was aged 58 years when the suit was filed. And Kusumabai, who is examined as PW-2, was aged 78 years and she was examined in the year 2018. - 6 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 The suit was filed in the year 2017. This being the position, there is no way that the plaintiff would be the daughter of Kusumabai. It is further stated that Kusumabai’s evidence has been completely overlooked by the Trial Court, as well as the First Appellate Court, and even the daughter of Kusumabai has stated that the plaintiff is the daughter of defendant No.2. (b) The Plaintiff had applied DNA test of plaintiff, Kusumabai, defendant No.1 and defendant No.2. The DNA test is to determine paternity of the plaintiff, and it is not to determine the illegitimacy of defendant No.2, as the plaintiff is admitting that defendant No.2 is daughter of Anjanabai. The Trial Court could not have dismissed the application for a DNA test. Thus, he would contend that the impugned judgment and decree are not sustainable. (c) It is also submitted that evidence on record is more than sufficient to accept the plea that the plaintiff is the daughter of Sangappa and Anjanabai. Thus, he would - 7 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 urge that the appeal be allowed and the suit of the plaintiff be decreed. 13. Defendant No.1 though served is not represented by any counsel. 14. This Court has considered the contentions raised at the Bar and perused the records. 15. It is noticed that the plaintiff has filed rejoinder to written statement filed by defendant No.1, wherein, it is stated that plaintiff is daughter of Kusumabai - the sister of defendant No.2. 16. It is also noticed that defendant No.2 did not file written statement disputing the claim of the plaintiff. Though she appeared, she did not file a memo adopting the written statement of defendant No.1. 17. It is also noticed that an application is filed to conduct a DNA test to decide the paternity of the plaintiff and defendant No.1. The application was rejected by the - 8 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 Trial Court, and the First Appellate Court also dismissed the application filed to decide the paternity of the plaintiff and defendant No.1. 18. It is also noticed that the Trial Court had dismissed the application seeking DNA test of plaintiff and defendant No.1 on the premise that the test is not helpful to establish the relationship of the plaintiff and defendant No.1. These observations are incorrect. 19. The DNA test throws light on the controversy as to whether the plaintiff is the daughter of Sangappa and Anjanabai. Admittedly, Defendant No.1 is the son of Sangappa and Anjanabai. This being the position, this Court is of the view that the application could not have been rejected by the Trial Court. 20. The First Appellate Court has also dismissed the application on the premise that Sangappa and Anjanabai are no more and the result of DNA test is of no consequence. - 9 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 21. This Court is of the view that the said observation is incorrect. Whether it is possible to give an opinion based on the DNA test of the plaintiff and defendant No.1, as to whether they are the children of Sangappa and Anjanabai, has to be opined by the expert. 22. Moreover, this test if proves the contention of the appellant that she is the daughter of Sangappa and Anjanabai will not take away the status of defendant No.1 as son of Sangappa and Anjanabai. 23. Under these circumstances, this Court is of the view that the impugned judgments and decrees have to be set aside. The matter has to be remitted to the Trial Court for fresh consideration after securing the DNA test report of the plaintiff and defendant No.1. 24. Hence, the following: ORDER i. The appeal is allowed in-part. - 10 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 ii. Judgment and decree dated 20.09.2023 in R.A.No.58/2022 on the file of the I Additional District Judge at Kalaburagi are set-aside and judgment and decree dated 03.08.2022 in O.S.No.82/2017 on the file of Senior Civil Judge, Jewargi are set-aside. iii. The matter is remitted to the Trial Court for fresh consideration. iv. The Trial Court shall send the blood sample of the plaintiff and defendant No.1 to the expert to secure the DNA report on the disputed question whether the plaintiff and defendant No.1 are born to the same parents. v. The Trial Court shall consider the report in accordance with law and shall thereafter, decide the suit on its merits. vi. In case defendant No.1 refuses to produce blood samples required for the test, adverse inference must be shown against defendant No.1. - 11 - NC: 2025:KHC-K:2432 RSA No. 200244 of 2024 vii. The parties shall appear before the Trial Court on 04.06.2025 without any further notice. viii. It is made clear that nothing is expressed on the merits of the case. ix. Since defendant No.1 has not appeared before this Court, the Trial Court shall issue notice to defendant No.1. x. The plaintiff shall appear before the Trial Court on 04.06.2025, without any further notice from the Trial Court. xi. All contentions are kept open. xii. Registry is directed to send back the Trial Court records. xiii. No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE TMP List No.: 1 Sl No.: 55