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2001 DIGILAW 102 (KAR)

M. B. Gangadharappa v. Bommagondappa

2001-01-31

V.GOPALA GOWDA

body2001
JUDGMENT V. Gopala Gowda, J.—For the sake of convenience, the parties in this appeal are referred to as per their rank in the trial Court. 2. This appeal is filed by the Plaintiff in O.S. No. 373 of 1990 on the file of the Munsiff, Tarikere. The suit was filed by the Plaintiff against the Defendant/Respondent for declaration of 1/4th share, partition and separate possession of the suit schedule properties and for mesne profits. The claim of the Plaintiff was that he was the son of the Defendant through first wife and the suit properties being joint family properties, he is entitled for a share. The suit was resisted by the Defendant by filing written statement. The Defendant has denied the relationship pleaded by the Plaintiff. According to him, the suit schedule properties are not joint family properties. Defendant has stated that the Plaintiff was in no way concerned with the suit schedule properties. Consequently, the Defendant has prayed for dismissal of the suit. On the basis of the pleadings the trial Court framed issues. The Plaintiff got examined as PW-1 and another witness as PW-2 and documents Exs.P-1 to P16 were marked. The Defendant got examined himself as DW-1 and another witness as DW-2 and documents Exs. D-1 to D-3 were marked. The trial Court, on appreciation of both oral and documentary evidence on record, held that Plaintiff failed to prove that he was the son of the Defendant as pleaded by them. Accordingly, the trial Court answered all the issues against the Plaintiff and dismissed the suit by its Judgment dated 9.4.1992. Being aggrieved by the same, the Plaintiff filed appeal in Regular Appeal No. 31 of 1992. The lower appellate Court formulated points for its determination and answered them against the Plaintiff by assigning reasons. Concurring with the judgment and decree of the trial Court, the lower appellate Court dismissed the appeal. Challenging the judgments and decrees of the Courts below, the Plaintiff has filed this second appeal. 4. While admitting this appeal, this Court framed the following substantial question: Whether the judgments and decrees of the Courts below are vitiated by the misreading of evidence in the light of Section 50 of the Evidence Act? 5. Heard the learned Counsel for the parties and perused the judgments of the Courts below. The trial Court dismissed the suit. 4. While admitting this appeal, this Court framed the following substantial question: Whether the judgments and decrees of the Courts below are vitiated by the misreading of evidence in the light of Section 50 of the Evidence Act? 5. Heard the learned Counsel for the parties and perused the judgments of the Courts below. The trial Court dismissed the suit. The first appellate Court concurred with the dismissal of the suit. This Court has to examine the challenge made to the concurrent findings of the Courts below. 6. The suit was filed by the Plaintiff for partition of suit schedule properties alleging that he is the son of the Defendant through first wife. The Defendant denied the relationship pleaded by the Plaintiff. So, the burden of proving that Plaintiff is the son of Defendant was on the Plaintiff. The trial Court discussed on this aspect elaborately and held that Plaintiff failed to prove the relationship pleaded by him. The trial Court found that Plaintiff has not examined the villagers to prove his relationship with the Plaintiff. The Court also found the discrepancy between the pleadings and evidence of the Plaintiff. Plaintiff not established the marital relationship of his mother with the Defendant. Even the evidence of PW-2 was not of much help to the Plaintiff for want of particulars as to the marriage of Plaintiff's mother with the Defendant. Considering the documentary evidence, the trial Court held that the geneological Tree as per Ex.P-12 produced by the Plaintiff was not proved. The trial Court considered the Transfer Certificate as per Ex.P-14 produced by the Plaintiff and held that the original register Ex.P-3 was got summoned by the Defendant in which the father of one B. Gangadharappa is shown as Bommalingappa whereas in Ex.P-14 the father of B. Gangadharappa is shown as Bommagondappa. The trial Court expressed doubt about the identity of Plaintiff in view of the difference of age mentioned in Ex.P-14 and the one mentioned in the cause title of the suit. The Court examined the age of the Plaintiff and came to the conclusion that he was aged 44 years as on the date of filing of the suit. Having came to that conclusion, it was held that no prudent man would have kept quiet till the age of 44 years to file the partition suit. The trial Court dismissed the suit. 7. Having came to that conclusion, it was held that no prudent man would have kept quiet till the age of 44 years to file the partition suit. The trial Court dismissed the suit. 7. The lower appellate Court also considered each aspect of the matter in detail and dismissed the appeal concurring with the findings of the trial Court. It was found that the plaint averments are bald and vague as to the relationship of Defendant with the mother of Plaintiff. It is further stated that none of the documents produced by the Plaintiff contain or show that Plaintiff's mother was married with the Defendant. The lower appellate Court rightly applied the law laid down by this Court in the decision reported in 1977 (1) Mys LJ 206. The Court held that when the Plaintiff has failed to prove that he was the son of Defendant, he cannot seek partition in the properties of the Defendant. 8. The failure on the part of the Plaintiff to prove his relationship with the Defendant as son disentitles him from claiming partition of the properties. In view of the categorical findings recorded by the two Courts below that Plaintiff has failed to establish his relationship with the Defendant, it has to be held that Plaintiff has no locus standi to file the suit. Both the Courts below have appreciated the evidence on record properly and considered the documents correctly. There is no mis-reading of the evidence by the Courts below and the judgments and decrees of the two Courts are not vitiated on account of mis-reading of evidence as alleged by the Plaintiff. On the other hand, the judgments and decrees of the Courts below are perfectly legal and valid and there is no scope for interference under Section 100 Code of Civil Procedure. It is also well-established in a catena of decisions that the High Court shall not interfere with the concurrent findings of the Courts below unless warrants. Mr. S.G. Bhagwan, learned Counsel for the Defendant has rightly submitted that the judgments and decrees of the Courts below are well- considered. The reliance placed on certain decisions by Sri G. Lingappa, learned Counsel for the Plaintiff, are not applicable to the facts of this case as Plaintiff failed to establish his relationship with the Defendant as son. 9. For the foregoing reasons, this appeal is dismissed.