INTHEPHGH{XNHKFOFKARNATAKAATBANGALORE
DATED THIS THE 29TH DAY OF SEPTEMBER 2.010
BEFORE
THE HON'BLE MR JUSTICE K G0V1NDA}§AJUDLi.fD
REGULAR SECOND AP'PEAL«3?T/2.CiQE«._
BETWEEN:
1. SMTKALAMMA A
W/O LATE RANGE GOWDA,_____
AGED ABOUT 60
2. 1 I
D/O LATE RANGE; 'G_OW'D.A', A
AGED ABOUT-30
3. SI~£RI.NAvEEN'v'- A
S/G:,LA'1'E GQWDA.
D' ~AGEI3 A1-3Gu'r 26 YEARS.
S/O.LA'i'E? GOWDA,
AGED ABQEUT 24 YEARS.
5. SRLRRAKASH
A 3 Sm LATE RANGE GOWDA.
* AGED ABOUT 22 YEARS.
E ALL ARE RESIDING AT
(K3
HOLENARASIPURA TALUK
HALLI MYSORE HOBLI
DODDAGOPANAHALLI VILLAGE
HOLENARASIPURA TALUK
HASSAN DISTRICT -- 570006. ...APPELL,fiNTS:VV'
[BY SR1 R.P.SOMASHEKARAIAI~L ADV.) O ; D
AND: _ I _
SMT K.B.DI~IANALAKSHMI
W/O MANJEGOWDA.
AGED ABOUT 23 YEARS, I
RESIDING AT KONG2'xLZ¥;BIDU;V'_F.O'R_M,'V _
KASABAHOBLI, ._
HALLI MYSORE_ROAD;-- '
HOLENARASIPURA T;ALUI:; I VI
HASSAN DI_S=TRlF_CT --.I570.005_, ;, ...RESPONDENT
(BY SR:1R.VNIAi5ARAJu.
"EH18'RSAIISA4FILED"*EJ1*JDER SECTION I00 OF CPC,
AGAINST «THE I'UDG__MENT AND DECREE DATED
12.11.2009' IvASSED,II=I1§..A.NO.5/2008 ON THE FILE OF
CIVIL JUDG'E,._j--. (S_R.'DN.) & ADDITIONAL CJM,
HOLENARSIPURA, DISMISSING THE APPEAL AND
A..1ACO.'Ij\_Ii'IEnM1NG THE'"+J""DGMENT AND DEGREE PASSED BY
CIVIL JUD_GE_ [JR.DN.) & JMFC, HOLENARASIPURA, IN
L O.S.'NQV;~v1_4'5/4"2'005 DATED 01.12.2007.
COMING ON FOR ADMISSION THIS
DAY, COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendantairi 08 145/06 on the file of the-..gCivil
Judge, Jr.Dvn., Holenarasipura are the ap.p_ella1’iit’s fir;
this appeal under Section 100 CPC.
2. Parties will be referred according to
found in the suit for convenience».
3. Learned advo.cate«”l.fo_r. submit
that plaintiff is defendant by
name Venkateshpa. three months,
Venkateslial has left the
entered into marriage
and thereafter’ said wedlock, plaintiff has
given, birthlu”to:V’a’chil.d. Also, plaintiff is not entitled for
_ _paftitld§’1′; lriview of the second marriage, the approach
e-oftrial Judge and appellate judges in
decr.eeirig’ suit for partition is not proper. So, pray
allowing the second appeal or in the alternative to
A the appeal. He also invites the attention of the
VA Court to the additional evidence produced in the form
t ” ‘documents are
of a certificate issued by the Medical Officer.
I-Iolenarasipur, the birth certificate issued
Municipality, Holenarasipur, the geneologi-saidétreefthe’
certificate of confirmation issued spree’
Stree Shakti Mahila
I-Iolenarasipura as additioiiaixgvidenee.» _ T’
4. The settled’ should
maintain theiivife. is ‘a11.:unfo_rtu1;ate case that the
plaintiff wirthin four months of
her her case that she has
filed atsuit for ground that the property
is an. This suit of the piaintiff is
.. Aéécreéii. “Defendant has preferred appeal in RA 5/08
Appeiiate Judge has confirmed the
iiridings’ the learned trial Judge, has not
in.teriered with the decree for partition awarded by the
it “learned trial Judge. For the first time in this Court
produced and it is
contended that after the death of Venkatesha, plaintiff —
Dhanalakshmi has married another man, thro_ugVh.._:the
said man Dhanalakshrni has a child. so, it ‘fit 0.
to allow the additional evidencehiwthich H”
Court to come to a conclusion”. tli’at’i’plaintiff
entitled for a decree for partition. narlrated”-suplra, ” it
the right of a Hindufirnarriedlllwoin_an.’i§w.xIel1Jgettled.
Solong as she is for the stay
in the hou5’°i A .1161’ l1lnother–in–law
after her took place on
14.4.2005. ‘ on 1.9.2005. The
alleged lllseeonld bn 22.12.2006. Atleast for
the period 5} if the 1st defendant were to
. lplacle Inajterial having maintained the daughten
in~lawf, there was some force in the submission of
_ the dleartied-advocate for the defendants to lead additional
VlL»evidence;” ll After the death of Venkatesh, plaintiff is
into the street is reflected in the facts of the
it case. So, the additional evidence now intented to be
brought on record has to be analysed with the mandate
under Order 41 Rule 27. Mandate
order 41 Rule 27 CPC is that a person i’
lead additional evidence has to”sh’oW._vthe
why the said material could placedbefore
Court when the case was heardon merits’ inspite of due
diligence. The appeal u_;’ff;;gi”..year The
documents now relied in RA 5/ 08
the additionaléevidentte. be produced is
not on the part of
defendants’ of due diligence they
could additional evidence. The
subject of’u”additi’onal evidence is also analysed on
. l°’rmeritsfl:*Plea_ put in the additional evidence is as
she is not entitled for partition.
Hear. stre,§:*V Shakti Mahila Swasayaha Sarnsthe,
Vlptfiolenarasipura is authorised under law to state about
birth of child through second marriage remains
-unsubstantiated. This probablise the fragile nature of
intended additional evidence. Suit for partition by a
widow has taken 4 years. If there is truth in
additional evidence is permissible. Not in a__-case” .
in additional evidence takes genesis i–n”‘se!’fp. st-rvingv_ nu
organizations. So application for arldlitiona’l..evidence:
under Order 41 Rule 27 isllriej-e_cted;’ was ” it
not placed before the Court,_.Reasoi1.. is not ‘fflllnél in the
affidavit filed in ‘application for
additional evidence. ‘sees no reason to
admit the dismissed at the
stage of adrnis*sion’?.itseii’;.. _ —
sa/as
Jndcfé