IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA BETWEEN R.S.A.NO. 2332/2017 1. SMT. T. SUSHEELA AGED 46 YEARS W/O LATE LAKSHMANA #825/M 24, 2ND CROSS, KAMATAGERI MANDI MOHALLA, MYSURU-570 021 2. SMT.SANDHYA AGED 29 YEARS W/O ANIL KUMAR #825/M 24, 2ND CROSS, KAMATAGERI MANDI MOHALLA, MYSURU-570 021.
3. SMT.VIDYA AGED 27 YEARS #825/M 24, 2ND CROSS, KAMATAGERI MANDI MOHALLA, MYSORE-570 021 4. SRI.C.SAGAR, AGED 23 YEARS, #825/M 24, 2ND CROSS, KAMATAGERI MANDI MOHALLA, MYSORE-570 021 5. SMT. SHIVAMMA AGED 53 YEARS W/O JAYANNA, #425, 5TH CROS, M BLOCK, KUVEMPUNAGAR, MYSURU-570 023.
(BY SRI VEERARAJ URS B C, ADV.) AND 1. SMT. KAMALAMMA AGED ABOUT 46 YEARS CLAIMING TO BE THE W/O. LATE NINGARAJU @ LINGARAJU #141, OOTY ROAD, GUNDU RAO NAGAR, MYSURU-570 004.
2. MS KAVITHA AGED ABOUT 29 YEARS CLAIMING TO BE THE D/O LATE NINGARAJU @ LINGARAJU #141, OOTY ROAD, GUNDU RAO NAGAR MYSURU-570 004.
3. MS GEETHA AGED ABOUT 27 YEARS CLAIMING TO BE THE D/O LATE NINGARAJU @ LINGARAJU #141, OOTY ROAD, GUNDU RAO NAGAR MYSURU-570 004.
4. MS LAKSHMI AGED ABOUT 25 YEARS CLAIMING TO BE THE D/O LATE NINGARAJU @ LINGARAJU #141, OOTY ROAD, ... APPELLANTS GUNDU RAO NAGAR MYSURU-570 004.
5. MS.MANJULA AGED ABOUT 19 YEARS CLAIMING TO BE THE D/O LATE NINGARAJU @ LINGARAJU #141, OOTY ROAD, GUNDU RAO NAGAR MYSURU-570 004.
... RESPONDENTS (BY SRI Y K NARAYANA SHARMA, ADV. FOR C/R-1) ********* THIS RSA IS FILED UNDER SEC.100 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.8.2017 PASSED IN RA NO.877/2016 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 9.9.2016 PASSED IN OS NO.612/2007 ON THE FILE OF THE PRL. SMALL CAUSES COURT, MYSURU, THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Defendants 1(a) to 1(c) and defendant No.4 in O.S.No.612/2007 on the file of the Civil Judge (Sr. Dn.) Small Causes Court, Mysore, have come up in this second appeal along with the 2nd defendant in the said suit.
2. Admittedly, this second appeal is against the concurrent findings of both the Courts below in decreeing the suit of the plaintiff. The suit in O.S.No.612/2007 was filed by one Ningaraju (wrongly referred as Nagaraju in the judgment dated 09.09.2016 passed in O.S.No.612/2007) for the relief of partition against three persons, i.e., one Lakshman S/o. Shivannna and the second one is Shivamma, who is the daughter of Shivanna and another Krishna Murthy, who is said to be the person in possession of a portion of suit schedule property as mortgagee. Subsequently, in the said suit, 1st appellant herein was impleaded as 4th defendant for the reason that during the pendency of the suit, the suit schedule property was gifted by 1st defendant in favour of 4th defendant with the consent of 2nd defendant – Shivamma. The said suit for partition was challenged by the defendants 1, 2 and 4. Initially during the pendency of the suit, 1st defendant died. In his place, his three children who are appellants 2 to 4 were brought on record and they continued to oppose the suit as legal representatives of 1st defendant. Later in the said suit, based on the pleadings and defence in all twelve issues were framed. The parties were called upon to adduce evidence on the basis of the pleadings and defence raised in the said suit.
3. It is necessary to mention at this juncture that by the time the said suit matured for evidence, the original plaintiff - Ningaraju had died and in his place, his widow and children had come on record as plaintiffs 1(a) to 1(e). So far as 1st defendant - Lakshman is concerned, he had died and his children had come on record as defendants 1(a) to 1(c). On behalf of plaintiff – Ningaraju, his widow Kamalamma adduced evidence as P.W.1 in support of the suit claim and she also examined a person by name M.V. Chandrashekar as P.W.2 to establish that the original plaintiff – Ningaraju and defendants 1 and 2 are children of Shivanna and Girijamma. Admittedly, P.W.2 is the son of one Mariyammma, who is the full blood sister of Girijamma - mother of defendants 1 and 2 and claimed as mother of original plaintiff – Ningaraju which is denied by defendants 1 and 2. On behalf of defence, the 1st defendant’s widow – Smt. Susheela who is the 4th defendant in the original suit was examined as D.W.1. Several documents were produced by both the parties. Out of that the relevant documents which are taken for consideration by the Court below is Ex.P.25 – Genealogical tree filed by Kamalamma and also some of the photographs which would indicate the presence of Shivanna and Girijamma in the marriage of Ningaraju and also in a function which was celebrated in the house of 1st defendant – Lakshman and his wife – 4th defendant in connection with the birthday of one of their children who are defendants 1(a) to 1(c) in the Court below.
4. The trial Court on appreciation of the documents available on record, answered the crucial issue for consideration of the prayer of the plaintiffs for partition, i.e., parentage of Shivanna and Girijamma to the original plaintiff – Ningaraju in the affirmative by answering issue No.3. So far as other issues are concerned, it is mainly with regard to the relationship of defendant Nos. 1 and 2 with Shivanna and Girijamma and also with reference to the title to the property. If answer to issue No.3 is accepted, answers to other issues are academic in nature to the litigation.
5. The said issue regarding the parentage of original plaintiff – Ningaraju was the subject matter of challenge in the appeal before the lower appellate court in R.A.No.877/2016. It is necessary to mention at this juncture that the said appeal was filed by defendants 1(a) to 1(c) and their mother – defendant No.4 in the original suit. So far as defendant No.2 – Shivamma is concerned, she did not join the aforesaid persons in filing the appeal before the lower appellate Court. In the lower appellate Court in all two points were framed. Out of that, first one is to consider the application which was to produce the additional documents to demonstrate that plaintiff – Ningaraju is the son of Subbegowda and the second one is with reference to whether the trial Court has committed error in holding that the plaintiff in the Court below is son of Shivanna and Girijamma.
6. The lower appellate Court answered the first point for consideration in the negative and second point for consideration in the affirmative, thereby confirming the judgment rendered by the trial Court in O.S.No.612/2007 which is sought to be challenged in this appeal on various grounds. One of that is contending that serious error is committed by both the Courts below while appreciating the evidence available on record, where the Courts below have wrongly relied upon the evidence of P.W.2 and as well as P.W.1 so far as Ex.P.25 and other photographs which are produced at Ex.P.15 series without there being a direct evidence to substantiate the parentage of plaintiff – Ningaraju to that of Shivanna and Girijamma.
7. To support the aforesaid grounds raised, the learned counsel for the appellants would rely upon two judgments. One of that is in the matter of GOURHARI DAS vs. SMT. SANTILATA SINGH AND OTHERS reported in AIR 1999 ORISSA 61 and another in the matter of GOPAL KRISHNAJI KETKAR vs. MOHAMMED HAJI LATIF AND OTHERS reported in AIR 1968 SC 1413 and would try to assert that serious error is committed while considering the evidence on the basis of Sections 50 and 60 of the Evidence Act whereas the evidence should have been considered on the basis of Section 104 of the Evidence Act. Though the said judgments are looked into with reference to the provisions of the Evidence Act which are tried to be interpreted in this proceeding, this Court finds no justifiable ground for framing any substantial question of law inasmuch as under Section 50, which deals with opinion of relationship when relevant, it has accepted the evidence of P.W.2 – M.V. Chandrashekar who is accepted as first cousin of defendant Nos. 1 and 2 by D.W.1 who is the wife of 1st defendant, thereby clearly accepting that the person who gave evidence had the knowledge of the relationship of plaintiff. Secondly, the original owners of the suit property are Girijamma and her husband Shivanna. The same would also suffice with reference to Section 60 which deals with oral evidence which should be direct to the point. Since the said P.W.2 having been accepted as relative of defendants 1, 2 and 4, they could not pick hole in his oral evidence in accepting that defendants 1 and 2 and as well as plaintiff are the children of his maternal aunt, Smt. Girijamma.
8. Therefore, in this background, finding fault with the Court below in not insisting that the burden which was on the plaintiff under Sections 103 and 104 of the Evidence Act is not properly exhausted is incorrect.
Therefore, on fact the said judgments which are relied upon by the appellant would have no bearing to the facts of the case where admittedly P.W.2 who is the first cousin of defendant Nos.1 and 2 has clearly accepted that plaintiff in the original suit is none other than his first cousin born to his maternal aunt Smt. Girijamma who is also mother of 1st defendant – Lakshman and 2nd defendant – Shivamma. Besides it is also seen that defendant No.4 in the Court below who has adduced evidence as D.W.1 has not been honest in her deposition before the Court. Though she makes a statement that the plaintiff and his legal heirs who came subsequently on record are not related to her and that their religion and caste are not known to her and they were not in contact with the family of defendants 1 and 4 at any time, she admits from out of the photographs which are produced in the evidence to establish that there was contact between the family of plaintiff and 1st defendant and they had participated in the religious functions which were held in the family of 1st and 4th defendants. By looking into the photographs thereby indicating that the said witness was not honest in deposing the facts before the Court below as against the evidence which is rendered by P.Ws. 1 and 2 to establish the relationship between the original plaintiff Ningaraju and the father of defendants 1 and 2 and his wife Girijamma, the original owner of suit schedule property.
9. In the aforesaid circumstances, it is seen that the trial Court has rightly answered the crucial issue, i.e., issue No.3 with reference to the relationship of plaintiff as son of Shivanna and Girijamma and thereby recognizing his right to seek share in the suit property. In that view of the matter, this Court does not find any ground as against the concurrent findings of the Courts below on fact. Therefore, no substantial question of law arises for consideration to admit the second appeal. Accordingly, the same is dismissed.
Sd/- JUDGE VP