Judicial determinations on familial property claims depend on established legitimacy and prior adjudications affecting property rights.

CAV JUDGMENT

This appeal is filed by the defendant Nos.1 to 7, challenging the judgment and decree dated 04.04.2006 in RA No.24/2003 on the file of Court of Fast Track, Haveri (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 14.07.2003 in OS No.66/2002 on the file of Civil Judge (Sr.Dn.), Hanagal, (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. Facts in nutshell for the purpose of adjudication of the appeal as averred in the plaint are that, one Basanagouda was propositus of the family died on 09.05.1962 leaving behind two wives namely Channavva and Dyamavva (defendant No.8). Defendant Nos.1 to 7 are the children of deceased Basanagouda through defendant No.8. The first wife of Basanagouda – Channavva had a son namely Basanagouda, who died on 19.04.1970 leaving behind his wife (defendant No.9) and their children, defendant Nos.10 to 14 along with plaintiff.

3.1. It is the case of the plaintiff that, suit schedule properties are the joint family properties of the parties to the suit and therefore, sought for share in the suit schedule properties. It is also stated that, defendant No.1 has filed L.C.No.82/1965 before the Munsiff Court, Haveri, against the plaintiff’s father seeking relief of injunction which came to be dismissed on 08.07.1969 against which the defendant No.1 has preferred RA No.29/1971. In the meanwhile, father of the plaintiff - Basanagouda died on 19.04.1970 and the said appeal was disposed off and therefore it is contended that the Appellate Court without granting fair hearing to the parties disposed of the same. It is contended by the plaintiff that the plaintiff was minor at the time of disposal of the appeal and therefore, plaintiff contended that the judgment and decree in RA No.29/1971 is not binding on the plaintiff. Hence, plaintiff has filed OS No.66/2002 and sought for share in the suit schedule properties.

4. On service of notice, the defendant No.5 entered appearance disputing the genealogy as narrated in the plaint. The defendant No.5 denied the averments as to Channavva as wife of deceased Basanagouda and also contended that, the plaintiff and defendant Nos.10 to 11 were not born in wedlock between Channavva and late Basanagouda and accordingly, it is the contention of the defendants that, the children of Basanagouda through defendant No.8 are entitled for share in the suit schedule properties.

5. Defendant Nos.1 to 4 and 6 to 8 have adopted the written statement of defendant No.5. The defendant No.10 has filed written statement admitting the claim of the plaintiff and countered the written statement of defendant Nos.1 to 8.

6. The Trial Court based on pleadings on record, formulated issues for its consideration.

7. In order to establish their case, plaintiff has examined four witnesses as PW1 to 4 and produced 25 documents and same were marked as Ex.P1 to P25. Defendants have examined three witnesses as DW1 to 3 and produced 18 documents and same were marked as Ex.D1 to D7. The Trial Court after considering the material on record by its judgment and decree dated 14.07.2003 dismissed the suit. Feeling aggrieved by the same, the plaintiff has preferred RA No.24/2003 before the First Appellate Court and same was resisted by the respondents therein. The First Appellate Court after considering the material on record allowed the appeal and as such set aside the judgment and decree in OS No.66/2002. Feeling aggrieved by the same, the de