Karnataka High Court
Pavitrabai D/O Yallappa Parnkar And Ors vs Vittal S/O Yamanappa Parnakar And Ors on 20 June, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.200217/2022
BETWEEN:
1. PAVITRABAI
D/O YALLAPPA PARNKAR,
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
2. ROOPA D/O. YALLAPPA PARNAKAR,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
3. SUNITA W/O. BABALU PARNAKAR,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
4. POOJA D/O. BABALU PARNAKAR,
AGE: 11 YEARS, OCC: STUDENT,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
5. SANKET S/O BABALU PARNAKAR,
AGE: 14 YEARS, OCC: STUDENT,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
2
APPELLANT NO.4 & 5 ARE MINORS
REP. BY U/G. THEIR MOTHER,
APPELLANT NO.3.
SUNITA W/O. BABALU PARNAKAR,
AGE: 36 YERS, OCC: HOUSEHOLD WORK,
R/O. TIKOTA,
TQ. & DIST: VIJAYAPUR-586101.
... APPELLANTS
(BY SRI.AJAY KUMAR ASHOK KUMAR, ADVOCATE)
AND:
1. VITTAL S/O. YAMANAPPA PARNAKAR,
AGE: 39 YEARS, OCC: TAILOR,
R/O. DARGA JAIL, VIJAYAPUR,
DIST: VIJAYAPUR-586101.
2. SHEKAWWA
W/O. RAMACHANDRA PARNAKAR,
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O. TIKOTA,TQ. & DIST: VIJAYAPUR-586101.
3. MUKESH S/O. RAMACHANDRA PARNAKAR,
AGE: 32 YEARS, OCC: COOLIE,
R/O. TIKOTA, TQ. & DIST: VIJAYAPUR-586101.
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THE APPEAL. BY
SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.05.2020 IN R.A.NO.29/2018 PASSED BY LEARNED IV ADDL.
DISTRICT JUDGE VIJAYAPURA. AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED 02.01.2018 IN O.S.NO.59/2015
PASSED BY LEARNED II ADDL. SENIOR CIVIL JUDGE VIJAYAPUR
AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
This appeal is filed by the defendants against the concurrent findings of both the Courts below vide judgment and decree dated 02.01.2018 passed by the II Additional Senior Civil Judge, Vijayapura in OS No.59/2015 and confirmed by the judgment and decree dated 08.05.2020 passed in RA No.29/2018 by the IV Additional District Judge, Vijayapura.
2. The plaintiffs have filed a suit for partition and separate possession in OS No.59/2015. According to plaintiffs, the propositus of the family was the Hajappa Paranakara and he had a wife by name Yamanavva. They had a daughter by name Saynavva, who was Devdasi and she had two children by name Yallappa and Yamuinabai. The defendants represent the branch of Yallappa, while the plaintiffs claiming to be representing the Branch of Yamunabai. The suit schedule properties admittedly originally owned by Saynavva and the plaintiffs claim half (1/2) share and the trial Court after appreciating the oral and documentary evidence has decreed the suit.
4
3. Being aggrieved by the said judgment and decree, the defendants have filed regular appeal in RA No.29/2018 before the First Appellate Court. The First Appellate Court after appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment and decree passed by the trial Court.
4. Against the said concurrent findings, this second appeal came to be filed under Section 100 of Code of Civil Procedure, 1908 ('CPC' for short).
5. Heard the arguments and the perused the records.
6. The main contention raised by the appellants/defendants is that, the Saynavva had only one son by name Yellappa and Yamunabai was not at all the daughter of Saynava. This was the defence set-up by the defendants. But, the trial Court has considered these aspects and recorded a finding that from 1964-65 up to 2001-02, the name of Saynavva and Yamunabai as well as Yallappa came to be mutated in the record of rights. Further this fact is evident from Ex.P7 (Aakarband). Apart from that, from EX.P5 it is evident that Yallappa and Yamunabai mortgaged the suit property to the 5 bank and availed loan on 30.09.1961. If at all Yamunabai is no way related to Yallappa or Saynavva, question of she jointly mortgaging the property with Yallappa does not arise at all.
7. Apart from that, the defendants/appellants herein have also tried to rely on evidence of PW.3 & PW.4. The trial Court has analised their evidence in detail and rejected their evidence by considering their demeanor and their evading type of answers. Hence, after appreciating the oral and documentary evidence, the trial Court has rightly came to a conclusion that the plaintiffs represent the branch of Yamunabai and granted half (1/2) share.
8. The First Appellate Court after re-appreciating the oral and documentary evidence in detail has dismissed the appeal by confirming the judgment and decree passed by the trial Court.
9. Under these facts and circumstances, both the Courts below have consistently and concurrently held that the plaintiffs are representing the branch of Yamunabail and granted equal share. As such, the judgment and decree passed 6 by the courts below does not suffer from any illegality or infirmity so as to call for any interference by this Court.
10. The provisions of Section 50 of the Evidence Act cannot be made applicable to the facts and circumstances of the case in hand, in view of the available material evidence. Under such circumstances, no substantial question of law is involved in this case to entertain this appeal. Hence, the appeal is devoid of any merits and needs to be rejected. Accordingly, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE KGR*