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2023 DIGILAW 774 (KAR)

Akkawwa v. Chandravva

2023-06-15

ASHOK S.KINAGI, VENKATESH NAIK T.

body2023
JUDGMENT : Venkatesh Naik T., J. 1. The appeal is filed by defendant Nos.4 to 9 and cross objections is filed by plaintiff Nos.1 and 2. This appeal is filed challenging the judgment and decree passed by the Senior Civil Judge and JMFC, Raiyabag, dated 26.04.2016 passed in OS No. 05/2012. 2. For the sake of convenience parties are referred to as per their rankings before the trial Court. 3. Brief facts of the plaintiffs case as hereunder. 4. The appellants are defendant Nos.4 to 9, respondents Nos.1 to 5 are plaintiff Nos.1, 2, 2(a), 2(b) and 3. The plaintiffs filed a suit for partition and separate possession. The suit schedule properties bearing Sy. No. 191/B and 193 situated at Hidakal village. The original propositus Nagappa died leaving behind his three sons by name Ghulappa, Kareppa and Purandar as his legal representatives. Plaintiff No. 1 Smt. Chandravva is the daughter of defendant No. 1, Second plaintiff Smt. Kempavva is his wife. The plaintiffs and defendants are Hindu un-divided Joint family members and suit schedule properties bearing No. 193 is the ancestral joint family property of plaintiffs and defendants. The original propositus Nagappa and his three sons got entered their names in the RTC extracts, Mutation Entries No. 2111 and the land bearing Sy. No. 191/1B has been purchased by three brothers out of the joint family funds. The plaintiffs and defendants are in possession of suit schedule properties and they are cultivating the same. There is no partition by meets and bounds in the family of plaintiffs and defendants. The plaintiffs are having 1/3rd share each in the 1/3rd share of defendant No. 1. During the year 2012 the plaintiffs requested the defendants for partition of the suit property. However, the defendants denied to make any partition. Hence, the cause of action arises for the institution of the suit. Hence, the plaintiffs filed a suit for partition and separate possession of the suit schedule properties. 5. After institution of the suit, the defendants appeared through their counsel, defendant No. 2 has filed his written statement denying the plaint averments. However, he has admitted the relationship and denied that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants. The defendants have taken contention that plaintiffs are not the wife and daughter of defendant No. 1 respectively. Hence, defendant No. 2 denied the genealogy furnished by plaintiffs. However, he has admitted the relationship and denied that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendants. The defendants have taken contention that plaintiffs are not the wife and daughter of defendant No. 1 respectively. Hence, defendant No. 2 denied the genealogy furnished by plaintiffs. Further, the defendants have taken contention that, one Akkavva (defendant No. 4) is the wife of defendant No. 1 and Smt. Lakkawwa (defendant No. 5), Smt. Savakka (defendant No. 6), Smt. Mayawwa (defendant No. 7), Sri. Siddappa (defendant No. 8), Sri. Nagappa (defendant No. 9) are the children of defendant No. 1 born through defendant No. 4 - Smt. Akkavvva W/o. Kareppa Madrigol. It is contended that defendant No. 1 never married plaintiff No. 2 and plaintiff No. 1 is not the daughter of defendant No. 1 born through plaintiff No. 2. It is contended that deceased defendant No. 1 during his life time given wardi to the Tahasildar Raibag on 24.11.2011 and also given consent letter for entering the name of sons Sri. Siddappa and Nagappa, the sons of Kareppa Madrigol to the suit properties. It is contended that the plaintiffs have filed false suit in order to harass the wife of defendant No. 1 by name Smt. Akkawwa and his three daughters and two sons, taking undue advantage of the death of defendant No. 1, hence have filed false suit to grab the property of deceased Kareppa, though, plaintiffs have no way relation with the defendant No. 1 as wife and daughters. Hence, prayed for dismissal of the suit. 6. Defendant No. 3 is the another brother of deceased defendant No. 1 also filed written statement and contended that the plaintiffs and defendants got partitioned in the year 1970 and as per the said partition, R.S. No. 191/1D has been allotted to defendant No. 3 and R.S. No. 193 has been acquired by GLBC authority for a canal purpose. It is further contended that deceased Kareppa Nagappa Madrigol has got second wife by name Smt. Akkawwa and have three daughters. After the death of Kareppa the second wife and sons and daughters are cultivating 1/3rd share of lands of deceased Kareppa. It is contended that, the oral partition was held in the year 1970 between the plaintiffs and defendants and therefore he is owner in possession of his 1/3rd share. After the death of Kareppa the second wife and sons and daughters are cultivating 1/3rd share of lands of deceased Kareppa. It is contended that, the oral partition was held in the year 1970 between the plaintiffs and defendants and therefore he is owner in possession of his 1/3rd share. It is further contended that there is no joint status in between plaintiffs and defendants in respect of suit schedule properties. Hence, defendant No. 3 prayed for dismissal of the suit. 7. Defendant No. 8 has also filed written statement and denied the claim of the plaintiffs. The defendants prayed for dismissal of the suit. 8. On the basis of the pleadings, the trial Court has framed the following: Issues: 1. Whether the plaintiffs prove that, the suit properties are ancestral joint family properties of them and defendants? 2. Whether the plaintiffs prove that, the relationship shown in the genealogy annexed to the plaint is correct? 3. Whether the defendants prove that, the plaintiffs are not the wife and daughter of defendant No. 1? 4. Whether the defendants prove that, one Akkavva is the wife of defendant No. 1 and Lakkavva, Savakka, Mayavva, Siddappa, Nagappa are children of defendant No. 1 born through Akkavva? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether the plaintiffs are entitle to 1/3rd share and separate possession in the suit properties? 7. What decree or order? Additional Issues 1. Whether the 3rd defendant proves that, there was a partition in the year 1970 as pleaded in the written statement? 2. Whether the 3rd defendant proves that, deceased kareppa Madrigol @ Alakhanur has got second wife as Akkavva and 3 daughters as pleaded in the written statement? 9. In order to prove the case of the plaintiffs, plaintiff No. 1 is examined as PW.1 and she also got examined one witness as PW.2 and she got marked in all 17 documents as Ex.P.1 to Ex.P.17 and closed their side. To rebut the claim of plaintiffs, defendant Nos.3 and 4 are examined as DW.1 and DW.2 and they also examined two witnesses as DW.3 and DW.4 and got marked 33 documents as per Ex.D.1 to Ex.D.33. 10. To rebut the claim of plaintiffs, defendant Nos.3 and 4 are examined as DW.1 and DW.2 and they also examined two witnesses as DW.3 and DW.4 and got marked 33 documents as per Ex.D.1 to Ex.D.33. 10. On the basis of the above pleadings, issues, oral and documentary evidence on record the trial Court answered issue Nos.1, 2 and additional issue No. 2 in the affirmative, issue No. 3 to 5 and additional issue No. 1 in the negative and issue No. 6 partly in the affirmative and decreed the suit of the plaintiff in part. 11. It is ordered and decreed that the plaintiffs are entitled for 1/7th share out of the 1/3rd share of deceased Kareppa Madrigol in the plaint schedule properties and defendant No. 2(a) and 2(b) are entitled for 1/3rd share jointly in the plaint schedule properties. Defendant No. 3 is entitled for 1/3rd share in the suit properties. Defendant Nos.5 to 9 are entitled for 1/7th share each out of 1/3rd share of deceased Kareppa Madrigol in the plaint schedule properties. The trial Court held that defendant No. 4 is not entitled for any share in the suit properties. 12. Aggrieved by the judgment and decree passed by the trial Court defendant Nos.4 to 9 have preferred this appeal. 13. Heard the learned counsel for the appellants and learned counsel for the respondents. 14. Learned counsel for the appellants has taken contention that the judgment and decree passed by the trial Court is contrary to law and on facts. Respondent Nos.1 and 2 have filed a suit for partition, on the ground that, they are the daughter and wife of defendant No. 1 Kareppa Madrigol. However, the appellants and defendant Nos.1 to 5 have denied the status of respondent Nos.1 and 2. The name of respondent No. 2 is shown in the voter card as Kempavva D/o Kareppa Rajapur and Chandravva W/o Hanamant Rajapur and she is the daughter of Kareppa Rajapur and in the voter list, her name is shown as Kempavva Rajapur. However, the appellants and defendant Nos.1 to 5 have denied the status of respondent Nos.1 and 2. The name of respondent No. 2 is shown in the voter card as Kempavva D/o Kareppa Rajapur and Chandravva W/o Hanamant Rajapur and she is the daughter of Kareppa Rajapur and in the voter list, her name is shown as Kempavva Rajapur. It is contended that respondent No. 2 along with her sisters namely Kamalawwa, Lakshmibai and Boravva inherited the land bearing Sy.No. 328/2 of Mudalagi village and they all together sold an area of 1.22 guntas in favour of Siddappa Yallappa Kappalaguddi, under registered sale deed dated 22.02.2013 and is appearing in the said document as Kempavva W/o Kareppa Rajapur and these facts have been admitted by P.W-1 in her evidence. It is contended that, the surname of the appellant, defendant Nos.1 to 3 is Madrigol and not Huded. In all the documents, their surname is shown as Madrigol. However, these documents would clearly indicate that respondent Nos.1 and 2 are not daughter and wife of deceased defendant No. 1. It is contended that, the appellant and respondent Nos. 3 to 5 specifically denied the status of respondent Nos.1 and 2 as daughter and wife of defendant No. 1, not only in the instant suit, but also in the mutation proceedings before the revenue Courts. Further, respondent Nos.1 and 2 got their plaint amended, but they did not seek any relief of declaration regarding their status as required under section 34 of Specific Relief Act. It is contended that the trial Court committed an error in relying upon Ex.P.10 and 11 to hold that respondents are the daughter and wife of deceased defendant No. 1. In fact, the Tahasildar and village Accountant have no authority to issue heir ship certificate in favour of respondent Nos.1 and 2 and it is only the Civil Court which is a competent authority to decide the status of the parties. However, the trial Court relied on inadmissible evidence in its judgment and passed the decree and it requires to be vitiated. However, the trial Court relied on inadmissible evidence in its judgment and passed the decree and it requires to be vitiated. It is contended that the appellant and respondent Nos.3 to 5 have denied the status of respondent Nos.1 and 2, but respondent Nos.1 and 2 in rejoinder to the written statement of appellants and respondent Nos.3 to 5 they did not produce the date and place of the marriage of respondent No. 2 and deceased defendant No. 1, the ceremony undergone, persons who were attended the marriage and etc. It is contended that plaintiff No. 2 did not entered into the witness box to prove her marriage with Kareppa Madrigol and respondent No. 2 have attended the wedlock. It is contended that PW.2 does not state about the date and place of marriage, ceremony undergone and the persons who attended the marriage of alleged respondent No. 2. However, the trial Court has not considered these material aspects, proceeded to decree the suit of the plaintiffs. It is contended that the trial Court in this judgment have stated that both the parties have not placed the documents to prove their marriage. It is contended that Kempavvva married with deceased Kareppa is admitted that, defendant Nos.2 to 6 are children born to them through defendant No. 1 is not disputed. It is contended that respondent Nos.1 and 2 who had approached the trial Court seeking partition on the ground that, they are the daughter and wife of deceased defendant No. 1 were required to produce documents and lead oral evidence. But, they have not produced any documents before the trial Court. In this regard the counsel relied upon a decision reported in 1998 (9) SCC 719 in the case of Ram Das v. Salim Ahmed and Another and taken contention that, in case of any suit for declaration, declaration of title to the suit property, witness in defendants claim for a title to the property could not be established by the plaintiff title and plaintiff could not get declaration of title. It is contended that, respondent Nos.1 and 2 being strangers to the family of appellants and respondent Nos.3 to 5 and deceased Kareppa Madrigol is not entitled for any share in the suit schedule properties as they did not prove that, they are the daughter and wife of the deceased Kareppa Madrigol. 15. It is contended that, respondent Nos.1 and 2 being strangers to the family of appellants and respondent Nos.3 to 5 and deceased Kareppa Madrigol is not entitled for any share in the suit schedule properties as they did not prove that, they are the daughter and wife of the deceased Kareppa Madrigol. 15. It is further contended that, the appellants have proved their relationship with deceased Kareppa Madrigal as appellant No. 1 is the wife and appellant Nos.2 to 5 are their children. On all these grounds, the counsel for the appellants prayed to allow the appeal. 16. Learned counsel for the respondent vehemently argued and submitted that, plaintiff Nos.1 and 2 are the daughter and wife of Kareppa Madrigol respectively and suit schedule properties are the joint family properties of plaintiff and defendants and in order to establish the claim of plaintiffs they relied on the record of rights, mutation entries as per Ex.P.1 to Ex.P.4 and Marriage Yadi as per Ex.P.4, Marriage Invitation card as per Ex.P.6. 17. It is contended that, on the basis of oral and documentary evidence on record, the trail court has decreed the suit and the trial Court has held that plaintiff No. 1 is the daughter and plaintiff No. 2 is the wife of Kareppa Madrigol, accordingly the trail court granted the shares. Hence, the counsel for respondent prayed for dismissal of the appeal. 18. The points that would arise for our consideration are as under: Points (i) Whether the plaintiff proves that, plaintiff Nos.1 is the daughter and plaintiff No. 2 is the wife of defendant No. 1 Kareppa Madrigol and suit schedule properties are the ancestral joint family properties of plaintiff and defendants? (ii) Whether the defendants prove that defendant Nos.5 to 9 are the children and defendant No. 4 is the wife of Kareppa Madrigol? (iii) Whether defendant No. 3 proves that there was a partition in the year 1970 and deceased Kareppa Madrigol has got second wife as Akkawwa and three daughters? (iv) Whether the cross-objectors have made out any grounds for entertaining the application for production of additional evidence under Order XLI Rule 27 of CPC? (v) Whether the judgment and decree passed by the trial Court is not in accordance with law and it requires interference of this Court? (vi) What order? Point Nos. (i) and (ii): 19. (iv) Whether the cross-objectors have made out any grounds for entertaining the application for production of additional evidence under Order XLI Rule 27 of CPC? (v) Whether the judgment and decree passed by the trial Court is not in accordance with law and it requires interference of this Court? (vi) What order? Point Nos. (i) and (ii): 19. Point Nos.(i) and (ii) are taken together for common discussion as they are interlinked and to avoid repetition of facts. It is the case of the plaintiff that, plaintiff No. 2 is the wife of late Kareppa Madrigol and plaintiff No. 1 is their daughter. The suit schedule properties are the joint family properties of late Kareppa. Hence, plaintiff No. 1 being the daughter of late Kareppa is entitled for share in the properties left by a deceased father. On the other hand, defendants have taken contention that plaintiffs are not daughters and wife of late Kareppa Madrigol, hence, they are not entitled for any share in the suit schedule properties. The plaintiffs in order to prove their case, plaintiff No. 1 Smt. Chandravva W/o. Hanamant Rajapur has examined herself as PW.1 and in her evidence, she has reiterated the plaint averments in the examination in chief and in support of their evidence, the plaintiffs have produced documents viz., record of rights (Ex.P1) in respect of land bearing Sy. No. 191(b), wherein, the name of defendant No. 1 is appearing in column No. 9 along with his brothers. Ex.P.2 is the record of rights in respect of Sy.No. 193, in column No. 9 the name of defendant No. 1 Kareppa Madrigol is seen . Ex.P.3 and Ex.P.4 are the Mutation Extracts in respect of Sy. No. 193 and 191. Ex.P.5 is the marriage Yadi of Kareppa S/o. Nagappa Madrigol (defendant No. 1). Ex.P.6 is the marriage invitation card of Hanamant and Chandravva (plaintiff No. 1). Ex.P.7 is the Adhar card of plaintiff No. 2. Wherein the name of plaintiff No. 2 is shown as Kempavva Madrigol. Ex.P.8 is the Pan card of plaintiff No. 1, wherein the name of plaintiff No. 1 is shown as Chandravva H. Huded. Ex.P.9 is the death certificate of Kareppa Madrigol who died on 13.01.2012. Ex.P.10 is the legal heir ship certificate issued by village Accountant Hidkal. Ex.P.11 is the legal heir certificate issued by Tahasildar, Hidakal. Ex.P.8 is the Pan card of plaintiff No. 1, wherein the name of plaintiff No. 1 is shown as Chandravva H. Huded. Ex.P.9 is the death certificate of Kareppa Madrigol who died on 13.01.2012. Ex.P.10 is the legal heir ship certificate issued by village Accountant Hidkal. Ex.P.11 is the legal heir certificate issued by Tahasildar, Hidakal. Ex.P.12 is the notice issued by Sub-Divisional Office, Chikkodi and Ex.P.13 is the appeal preferred by defendant No. 1 and others before the Assistant Commissioner, Chikkodi. Ex.P.14 is the Ration Card pertaining to the deceased defendant No. 1. Ex.P.15 is the notice issued by Assistant Commissioner, Chikkodi. Ex.P.16 is the RTS proceedings issued by Assistant Commissioner, Chikkodi and Ex.P.17 is the certified copy of the order issued by Assistant Commissioner, Chikkodi. 20. PW.1 was cross-examined, in the crossexamination, she admitted that defendant No. 2 Gulappa and defendant No. 3 Purandara have 1/3rd share each in suit schedule shares. But, she denied that, remaining 1/3rd share of a deceased Kareppa, are cultivating by Akkawwa, Lakkawwa, Savakka, Mayavva, Siddappa and Nagappa. She admits that her surname is Rajapure and now it is converted as Huded. She further admits that she has not produced any documents to show that the marriage of her mother was performed with Kareppa and rest of the suggestions were denied by her. 21. The plaintiffs in order to prove their case examined one Sri. Mayappa Siddappa Rajapur as PW.2. In his evidence he has stated that deceased defendant No. 1 Kareppa Madrigol married plaintiff No. 2 Kempavva and he had attended the marriage. He further stated that Kareppa Madrigol is having ancestral property. PW.2 was cross-examined, in the cross-examination he admits that he do not know the number of shares in the schedule properties and he contends that all the brothers are living together and he denied the suggestions that defendant Nos.4 to 9 are in possession of the share fallen to deceased Kareppa. 22. The defendants in order to prove their contention, examined defendant No. 3 - Sri.Purandhar Nagappa Madrigol as DW.1. In his evidence he has stated that plaintiffs and defendants got partitioned in the suit properties in the year 1970 itself. Hence, the land bearing Sy. No. 191/1D has been allotted to him, land bearing Sy. 22. The defendants in order to prove their contention, examined defendant No. 3 - Sri.Purandhar Nagappa Madrigol as DW.1. In his evidence he has stated that plaintiffs and defendants got partitioned in the suit properties in the year 1970 itself. Hence, the land bearing Sy. No. 191/1D has been allotted to him, land bearing Sy. No. 193 has been acquired by GLBC authority for canal purpose and he has got six acres 11 guntas and defendant No. 2(a) and 2(b) got 1/3rd share in the suit schedule properties situated at Hidkal village. Deceased Kareppa having 1/3 share and after his death, his wife, sons and daughters are cultivating 1/3rd share of lands. 23. In the cross-examination he admits that, suit schedule properties are the ancestral properties and were fallen to the share of his father, his father has three sons which DW.1, Gulappa and Kareppa. He further admits that there is ill will between plaintiffs and DW.1 in respect of suit schedule properties. A suggestion was put to DW.1 that, plaintiffs are wife and daughter of a deceased Kareppa, but, DW.1 has not denied specifically, as, if he admits the same, he would get trouble. He do not know the marriage of Kareppa with defendant No. 4 - Smt.Akkawwa. But, he admits that defendant Nos.5 to 9 are the children of defendant No. 4. He further admits that there is no relation between defendant Nos.5 to 9 and plaintiffs with deceased Kareppa. He further admits that, after the death of Kareppa the children of Gulappa, plaintiffs and children of second defendant are cultivating suit schedule properties. He do not know that, during the life time of Kareppa, plaintiffs had demanded for partition in respect of suit schedule properties. He admits that, as Kareppa did not make any partition, the plaintiffs have filed the suit for partition in respect of suit schedule properties. He further admits that, plaintiff No. 1 - Smt. Chandrawwa born to plaintiff No. 2 - Smt. Kemppawwa and Kareppa. He further admits that after institution of the suit, Gulappa died and there was misunderstanding between his brothers. He further admits that defendant No. 4 also wife of Kareppa and defendant Nos.5 to 9 are children but, he never saw the marriage of Kareppa with defendant No. 4. He further admits that after institution of the suit, Gulappa died and there was misunderstanding between his brothers. He further admits that defendant No. 4 also wife of Kareppa and defendant Nos.5 to 9 are children but, he never saw the marriage of Kareppa with defendant No. 4. He specifically admitted that defendant No. 4 is the first wife of Kareppa and defendant No. 4 and her children are in possession of the suit schedule properties. 24. Defendants got examined, defendant No. 4 Smt. Akkawwa as DW.2. In her chief-examination, she has reiterated the contents of written statement. DW.2 was cross examined. She admits that Kareppa is her husband and his surname is Madrigola. But, she do not know the marriage documents produced by plaintiffs vide Ex.P.5 and Ex.P.6. She admits that her parents lands also situated at Hidkal village. The suit schedule properties are belongs to defendant Nos.1 to 3 and they were cultivating the suit schedule properties together. She denied that, Kempavva is the first wife of Kareppa and she had been to her parents house for a period of four years, hence, Kareppa got married DW.2 as second marriage. But, she has not produced the marriage yadi, she has not produced marriage invitation card, photos of marriage. She further admits that she and her children affixed their thumb impression on Ex.D.26, 28 and 29. She specifically admitted that, she and her children affixed their thumb impression on the documents, in order to avoid the vesting of properties to the plaintiffs and in this regard the plaintiffs were submitted their objections before the concerned authorities. She further admits that, she and Gulappa are in cordial terms. 25. The defendants got examined Sri. Shivappa Devappa Belagali as DW.3 and Lakkappa Devappa Belagali as DW.4 in order to prove the marriage of Kareppa with defendant No. 4. 26. In order to substantiate, the contention of defendants they got marked in all 27 documents as per Ex.D.1 to Ex.D27. Ex.D.1 is the identity card issued by Election Commission of India, wherein the name of Madri Kareppa Nagappa is found place. Ex.D.2 is the Ration Card issued by Food and Civil Supply Department wherein the name of Kareppa Madrigol is shown as husband and one Sakavva Madri is shown as wife. Ex.D.3 is the identity card issued by Election Commission of India in favour of plaintiff No. 1 (Smt. Chandrawwa Huded). Ex.D.2 is the Ration Card issued by Food and Civil Supply Department wherein the name of Kareppa Madrigol is shown as husband and one Sakavva Madri is shown as wife. Ex.D.3 is the identity card issued by Election Commission of India in favour of plaintiff No. 1 (Smt. Chandrawwa Huded). Ex.D.4 is the identity card issued by Election Commission of India in favour of plaintiff No. 2 (Smt. Kempawwa Alakanur). Ex.D.5 is the Ration Card issued by Food and Civil Supply Department in favour of plaintiff No. 1 (Chandrawwa Hanamant Rajapure). Ex.D.6 is the Voter list. Ex.D.7 is the certified copy of the sale deed dated 22.02.2013 wherein the name of plaintiff No. 2 is shown as Kempawwa W/o. Kareppa Rajapur @ Alakanur. Ex.D.8 is the record of right in respect of land bearing Sy. No. 190 wherein the name of Madreppa Kareppa Nagappa is found place. Ex.D.9 is the record of right in respect of land bearing Sy. No. 193 wherein the name of Madreppa Kareppa Nagappa is found place. Ex.D.10 is the record of right in respect of land bearing Sy. No. 191/1B wherein the name of Madreppa Kareppa Nagappa is found place. Ex.D.11 to Ex.D.17 are the mutation extracts in respect of suit schedule properties Ex.D.18 is the identity card issued by Election Commission of India in favour of defendant No. 4, wherein the name of defendant No. 4 is shown as Smt. Akkawwa Madri (defendant No. 4). Ex.D.19 is the identity card issued by Election Commission of India in favour of defendant No. 4, wherein the name of defendant No. 4 is shown as Sri. Siddappa Madri (defendant No. 8). Ex.D.20 to Ex.D.24 are the School admission certificate issued in favour of defendant No. 5 to 9. Ex.D.25 is the M.R. number in respect of land bearing Sy. No. 193. Ex.D.26 and Ex.D.27 are the notice. Ex.D.28 is the waradi submitted by Nagappa Madrigol on 24.11.2011 in respect of land bearing Sy. No. 191/1B and Sy. No. 193. Ex.D.29 is the consent bond (Kabuli Patra) and Ex.D.30 to Ex.D.33 are the Adhar Cards of defendant Nos.4, 5, 8 and 9. 27. No. 193. Ex.D.26 and Ex.D.27 are the notice. Ex.D.28 is the waradi submitted by Nagappa Madrigol on 24.11.2011 in respect of land bearing Sy. No. 191/1B and Sy. No. 193. Ex.D.29 is the consent bond (Kabuli Patra) and Ex.D.30 to Ex.D.33 are the Adhar Cards of defendant Nos.4, 5, 8 and 9. 27. On perusal of the contentions urged by the counsel for the appellants and the respondents, it appears that, the only dispute arises in the mater is whether the plaintiffs are the legal heirs of defendant No. 1-Kareppa Madrigol or defendant Nos.5 to 9 are the legal heirs of deceased defendant No. 1. 28. On the other hand, according to D.W-2, she has stated that, at the time of their marriage, no Yadi was prepared and no marriage invitation cards were got printed. The plaintiffs have relied upon several documents as per Exs.P.1 to P.17 and they are all public document. Admittedly, in some of the documents produced by the plaintiffs, the 'surname' of first plaintiff is shown as "Huded" as she got married with one Hanamant Huded and surname of the second plaintiff is shown as "Rajapur". In fact, it is the surname of the parental house of plaintiff No. 2. Admittedly, the plaintiffs have not produced any material document to prove the marriage ceremony of plaintiff No. 2 with defendant No. 1. Admittedly, the plaintiffs have not examined the persons who had attended the marriage ceremony of plaintiff No. 2 with defendant No. 1. Further, there is no evidence of performance of necessary marriage ceremony in terms of section 7 of the Hindu Marriage Act, 1955(hereinafter referred to as the 'HM Act', for short). Therefore, mere production of some documents like Aadhar card, Election ID card is not sufficient to prove the marriage of plaintiff No. 2 with defendant No. 1. In case, the parties to the litigation fail to prove the marriage as required under section 7 of the Hindu Marriage Act, such marriage by parties cannot be held as marriage in the eye of law. 29. In the present case, the plaintiffs have not proved custom of marriage of plaintiff No. 2 with defendant No. 1 and/or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, no judicial notice can be taken of a custom as argued by the learned counsel for the appellants. 29. In the present case, the plaintiffs have not proved custom of marriage of plaintiff No. 2 with defendant No. 1 and/or judicial precedent recognizing such marriage. In the absence of any precedent or custom of such marriage, no judicial notice can be taken of a custom as argued by the learned counsel for the appellants. In the instant case, the burden to prove the marriage was on the plaintiffs and the plaintiffs have failed to prove the marriage. The entire case is based upon the documents, marriage Yadi and other invitation card in which there is no assertion regarding solemnization of customary ceremonies or the rites or that the parties had performed Saptapadi in the manner contemplated under Section 7 of HM Act. Therefore, the plaintiffs cannot succeed the estate of defendant No. 1-Kareppa Madrigol on the basis of the marriage which they have failed to prove. Hence, the plaintiffs have failed to prove the relationship with defendant No. 1. 30. In view of the above discussion, we answer point Nos. (i) in the negative and point No. (ii) in the affirmative. Point No. (iii): 31. Defendant No. 3 has taken a contention that, the defendants and the plaintiffs got partitioned the suit properties in the year 1970 and elderly persons of the village have made the oral partition between plaintiffs and defendants. As per the said partition, suit land bearing Sy. No. 191/1D measuring 6 acres, out of it, an extent of 2 acres has been allotted to defendant No. 3-Purandara Nagappa Madrigol and land bearing Sy. No. 193 total measuring 22 acres 8 guntas, out of it, an extent of 7 acre 10 guntas has been acquired by G.L.B.C., authority for canal purpose and defendant No. 3 got 6 acres 11 guntas situated at Hidkal village. Defendant No. 3 further contended that, deceased Kareppa Nagappa Madrigol @ Alaknur has got second wife (defendant No. 4-Akkawwa) and three daughters and deceased Kareppa having 1/3rd share and after his death, defendant No. 4 and her sons and daughters are cultivated 1/3rd share of lands of deceased Kareppa Nagappa Madrigol. Therefore, defendant No. 3 is the absolute owner in possession of his respective l/3rd allotted share. Now, there is no joint status in between plaintiffs and defendants, in respect of the suit properties. 32. Therefore, defendant No. 3 is the absolute owner in possession of his respective l/3rd allotted share. Now, there is no joint status in between plaintiffs and defendants, in respect of the suit properties. 32. On perusal of the evidence of the parties, it is the case of plaintiffs that, late Kareppa was owning joint family properties and they have share in the suit schedule properties. But, the plaintiffs except the pleadings, they have not produced any material documents to show that marriage of plaintiff No. 2 - Smt. Kempawwa performed with the deceased Kareppa. 33. On perusal of documents, it appears that, there is no reference in any of the documents to show that, partition was effected in the year 1970 as contended by defendant No. 3. In the cross-examination, DW.1 (defendant No. 3) admits that, suit schedule properties are the joint family properties. Hence, defendant No. 3 failed to prove that, there was a partition in the year 1970 itself, hence, we answer point No. (iii) in the negative. Point No. (iv): 34. Plaintiff No. 1/ the cross objector No. 1 filed I.A.1/2023 under Order XLI Rule 27 of CPC for production of additional evidence. In support of the application, she has filed an affidavit contending that the wife and children of 4th respondent in the main appeal namely Siddaroodha Gulappa Madrigol have filed a suit for partition and separate possession making the plaintiffs as a party and also produced photographs to show that plaintiff No. 2 and Kareppa Madrigol have taken photo and the said documents are essential for the purpose of deciding the matter in dispute. 35. Though, the matter was heard on 07.06.2023 and reserved for judgment, the cross-objectors filed I.A.1/2023 for production of additional evidence. The respondents filed objections to the said application denying the averments made in the affidavit and prayed to dismiss the application. 36. Admittedly, I.A No. 1/2023 was filed when the case was reserved for judgment. The co-ordinate Bench of this Court in the case of Rabiya Bi Kassim M. v. The Country Wide Consumer reported in 2004 (4) KLJ 189 held that, when the case is finally heard and posted for pronouncement of judgment, re-opening the case for leading further evidence held that once a case has been heard and reserved for judgment, nothing requires to be opened except pronouncement of judgment. Further the object of filing an application for production of additional evidence is subject to certain exceptions wherein the production of additional evidence cannot be filed as a matter of right and also to fill up the lacuna. Further, the plaintiffs have produced the certified copy of the plaint in O.S.No. 77/2016 and photo of second appellant with her husband. Though the plaintiffs being parties to the said suit had knowledge regarding filing of suit by the wife of defendant No. 2(b), the plaintiffs have not made any attempt to produce the said document before the trial Court and it is not the case of the plaintiffs that in spite of due diligence, the plaintiffs could not produce the said documents. The plaintiffs have produced the photograph without the negative. Photographs produced by the plaintiffs is not being supported with a certificate under Section 65A of the Evidence Act. Hence, the plaintiffs have not established the ground under order XLI Rule 27 of CPC. In view of the above discussion, we do not find any ground to entertain I.A.1/2023. 37. Admittedly, the suit was filed in the year 2012 and suit came to be decreed on 26.04.2016 and the present application is filed in the year 2023. There is delay of 5 years in filing the application from the date of filing cross objection. Now the cross objectors have produced the documents only with an intention to fill up the lacuna. The Hon'ble Apex Court in the case of Andisamy Chettiar v. A. Subburaj Chettiar reported in (2015) 17 SCC 713, has held that, production of documents to fill up lacuna cannot be entertained. Though the said documents were in the custody of cross objectors, in spite of sufficient opportunities being provided by the trial Court, the cross objectors/plaintiffs did not chose to file the said documents. When the cross objectors have not complied the conditions under Order XLI Rule 27 of CPC, we do not find any ground to entertain I.A.1/2023. Hence, we answer point No. iv in the negative. Point No. (v): 38. When the cross objectors have not complied the conditions under Order XLI Rule 27 of CPC, we do not find any ground to entertain I.A.1/2023. Hence, we answer point No. iv in the negative. Point No. (v): 38. Looking into all angle, the plaintiffs failed to prove that, suit schedule properties are joint family properties of themselves and defendants and on the other hand, defendants prove that, defendant No. 4 Smt. Akkawwa is the wife of defendant No. 1 and defendant Nos.5 to 9 are children of defendant No. 4 and deceased Kareppa, hence, the plaintiffs are not entitled for any share in the suit schedule properties, thus, the suit filed by the plaintiffs liable to be dismissed. The judgment and decree passed by the trial Court requires interference by this Court. In view of the above discussion, the appeal filed by defendant Nos.4 to 9 deserves to be allowed and the cross objection filed by the plaintiffs are liable to be rejected. Hence, we answer Point No. v in the negative. 39. Point No. (vi): Accordingly, we proceed to pass the following; ORDER: (i) The appeal is allowed. (ii) The Cross objection is dismissed. (iii) The judgment and decree dated 26.04.2016 passed by the Senior Civil Judge and JMFC, Raibag in O.S. No. 5/2012 is set aside. Consequently, the suit filed by the plaintiffs is dismissed. (iv) I.A.1/2023 filed by the plaintiffs/cross objectors is rejected. (v) No order as to the cost.