IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 T DAY OF OCTOBER, 2011 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY BETWEEN: 1. SMTRAMAKKA WIFE OF LATE NARASAPPA AGED ABOUT 84 YEARS 2 SRLBOMMAJJA S/C. LATE NARASAPPA AGED ABOUT 62 YEARS 3, SRLNAGARAJA 5/0. BOMMAJJA, AGED ABOUT 38 YEARS CHALLAKERE TALUK, CHITRADURGA DIST. PIN NO.577522. a AGED ABOUT 43 YEARS 2. SRI KARIYANNA, Sb. LATE ERANNA AGED ABOUT 28 YEARS 3. SMT.NINGAMMA WIFE OF KARIYAJJA, AGED ABOUT 59 YEARS ALL ARE AGRICULTURISTS, RIO. JAJURU, CHALLAKERE TALUK, CHITRADURGA DIST. PIN :577522. RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 25.5.2011 PASSED IN R.A.NO.120/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED: 24.07.2008 PASSED IN O.S.NO.1/2007 ON ThE FILE OF THE CIVIL JUDGE (JR.DN) CHALLAKERE. THIS APPEAL COMING ON FOR ADMISSION. THIS DAY, THE COURT DELIVERED THE FOLLOWING:- This regular second appeal is filed by the appellants- defendants being aggrieved by the concurrent judgment and decree passed by the two courts below dated 24.7.2008 In 0 S No.1/2007 on the file of the Civil Judge (Jr.Dn.) & I M F C, Challakere which is confirmed in R A No.120/2008 by the L 3 judgment and decree dated 25.5.2011 on the file of the Senior Civil Judge at Challakere. 2. The parties would be referred to as per their ranking before the trial court for the sake of convenience. 3. The facts in brief are that the plaintiffs being wife and son & late Eranna filed the suit seeking for partition and separate possession of their share. The said suit was contested by the defendants who are mother, brother, brother’s son and sister of late Sri Eranna entered appearance and filed written statement contending that plaintiff NO.1 is not wife of Eranna and plaintiff NO.2 is not the son of Eranna as Eranna died unmarried. The defendants also denied joint possession and enjoyment of the suit schedule properties by the plaintiffs. The propositus Narasappa died about 10 years back. After his death, Smt.Ramakka, the first defendant took a sum of Rs.10,000/- and separated. Thereafter defendant No.2 and deceased Eranna were in joint possession of the properties. In 2003 there was partition. Eranna got eastern half portion in item Nos.1 & 2 and defendant No.2 got western half portion in the above said survey numbers. The defendant No.3 was looking after affairs of the family. Eranna executed 4 Wilt In favour of defendant No.3 by which he became owner of half portion of item No.1 & 2. Hence they sought for dismissal of the suit. 4. The trial court framed as many as six issues. The plaintiffs examined five witnesses as PW-1 to PW-5 and got marked 23 documents as Ex.P1 to P23. The defendants also examined DW-1 to DW-5 and marked Ex.D1 to D1(g). The trial court decreed the suit which is affirmed by the first appellate court. Hence the present appeal. 5. The learned counsel for the appellants submits that the courts below have erred in recording a finding that the plaIntiff No.1 is the wife and plaintIff No.2 is son of late Eranna. There are no materials in recording a further finding that the plaintiffs were In possession and enjoyment of the suit schedule properties. It is further an error on the part & both the courts below that partition of 2003 and Will executed by late Eranna is not proved. The courts below failed to take into consideration admission of the plaintiffs that they were not residing with the defendants which admission goes to root of the matter. K 6. On the other hand, the learned counsels for the respondents No.1 & 2 supported the judgment and decree passed by the courts below and pray for dismissal of the appeal. 7. I have gone through the judgment and decree passed by the two courts below and considered the submissions made by the counsels for the parties. 8. It is the case & the plaintiffs that first plaintiff is the wife and second plaintiff is her son through Eranna. To prove this relationship, the plaintiffs examined themselves as PW-1 & 2 and other witnesses are also examined and produced Ex.P1 genealogical tree. The said Eranna is the son of Narasappa and Ramakka. To prove this contention, the defendants did not produe any documents. Ex.P2 date of birth certificate shows that plaintiff No.2 is son of Eranna. Ex.P9 showed Eranna died on 11.12.2006. Ex.P3 to P7 show that schedule properties are in joint possession and enjoyment with the defendants as a joint family members. PW-1 supported the plaint averments. She stated that she married Eranna about 25 years back. After two years from date of marriage, plaintiff No.2 was born. PW-2 also supports ‘K the case of the plaintiffs. PW-3 is also a close relative of parties to the suit. He has stated about the relationship of plaintiff with Eranna. PW-4 also supported the relationship. 9. The defendant No.1 In his chief examination stated that in the year 2003 there was a partition effected between hImself and Eranna during which Eranna obtained eastern half portion in item Nos.1 & 2 propertIes. In the year 1996 itself his mother I.e., first defendant obtained Rs. 10,000/- for her share and she relinquished all her iights in the suit properties in favour of himself and deceased Eranna. During his life time, deceased Eranna executed the Will deed in favour & Nagaraja, bequeathing the properties obtained by him and the plaintiffs have no right over the same. In his cross- examination he admitted the suggestions regarding cancer disease to Eranna and his admitting to Bapuji Hospital. He denied the suggestion stating that they created the Will deed allegedly executed by Eranna. He stated once again that In the Irrigated land, Eastern half portion measuring 30 guntas fallen to his share and western portion 1 acre 1 gunta fallen to the share of Eranna. DW-2 supported the version of DW-1. DW-3 also deposed that Eranna executed the will. However K I In the cross-examination he admitted the suggestion that he does not know the contents & the Will. 10. On the basis of evidence of PW-1 to 5 and DW-3 and sister of Eranna, it can be safely held that plaintiffs 1 & 2 are the wife and son of Eranna. DW-3 has also admitted the suggestion that Kariyanna the 2 d plaintiff is the son of Eranna and further that during ill-health the plaintiffs admitted him to hospital. Therefore, there cannot be any doubt that plaintiffs 1 & 2 are wife and son of late Eranna. 11. Further plaintiffs and their witnesses have deposed that they are in joint possession and enjoyment of the suit properties along with the defendants and they produced record of rights and other documents which show that the suit properties are standing in the name of Bommajja and Eranna. In the Will Ex.D1 boundaries of entire lands are mentioned and there is nothing mentioned about share of Bommajja’s land adjoining the said lands. Therefore, on the basis of the materials produced, it was not sufficient to hold that there was partition took place between Bommajja and Eranna at any time. Ex.P15 shows that the plaIntiffs 1 & 2are the wIfe and son of Eranna and they are in joInt possession and K enjoyment of the suit schedule properties rhe alleged will came into existence during last days of late Eranna with dctive acsistance of defendants 1 & 2 and therefore the Evidence of defendants 1 to , was riot sufficient to hold that the dfendan’ ‘Jo 3 became the woner of the properties fallen to share of Eranna on the basic of the Will 12. Therefore, I am of the view thit the cou ts below have properly appreciated the materials on record and decreed the suit When once it is held that the plaintiffs are wift and con of late &ranna and there was rio partitio ‘ the plaintiffc are entitled or their hare. No substantiai questions i. law arise in the present second appeal Accodiiicjy. the appeii i nisrr ss