THE PRINCIPAL COMMISSIONER vs. M/S ANANTHAPUR MINING CORPORATION,

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100013 OF 2017 (PAR/POS)

BETWEEN: 1. SRI. DEEPAK S/O PARAPPA GOJANUR, SINCE DECEASED BY LR’S AS PER ORDER DATED 15.09.2020 APPELLANT NO.1 IS DISPENSED WITH

AND:

SMT. NEELAVVA W/O NIGAPPA IDAGICHADI, AGED: 65 YEARS, OCC: AGRICULTURE AND HOUSE HOLD, R/O: HOMBAL, TQ: GADAG, DIST: GADAG-58203. …RESPONDENT (BY SRI. DINESH M KULKARNI, ADV)

THIS RFA IS FILED U/S 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:01.12.2016 PASSED IN O.S.NO.23/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, GADAG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:14:28 +0530

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

This regular first appeal is filed by the appellants challenging the judgment and decree dated 01.12.2016 passed in O.S.No.23/2013 by the Principal Senior Civil Judge and CJM, Gadag. 2. For convenience, parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession of his half share in the suit properties and for awarding mesne profit. It is the case of the plaintiff that one Sakrappa Gojanur was the propositus who had four sons namely, Ramappa, Sangappa, Chinnappa

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and Basappa. The second son of propositus, Sangappa, died on 21.05.1945 leaving behind him his two sons namely, Parappa and Shankrappa. The Shankrappa is the father of the plaintiff. Defendant No.1 is the son of Parappa. The said Shankrappa died on 25.04.2009, and Parappa died on 25.11.1997. The father of the plaintiff i.e., Shankrappa had gone in adoption to Chinnappa, S/o Sakrappa Gojanur, on 28.10.1954, and the deed was registered, leaving behind the plaintiff in the genitive family, as on the date of adoption. Therefore, the plaintiff is the successor in the genitive family of her father, Shankrappa, in the capacity of a granddaughter of Sangappa. The plaintiff is the coparcener in the family of her grandfather by birth, thereby having acquired the right of coparcener as that of a son in the properties of the genitive family of Sangappa. 4. It is further contended that the father of the plaintiff alone went into adoption on 28.10.1954 and not along with the plaintiff, who had remained in the genitive family of her father as a legal heir and had remained with

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her grandfather Sangappa. The suit properties are the joint family properties of the plaintiff and the defendants. After the death of Parappa, the plaintiff is entitled to an equal share in the suit properties to that of defendant No.1 who is the grandson of Sangappa and son of Parappa. The plaintiff and the defendants have equal shares and rights in the ancestral suit properties in the capacity of a grand children. It is stated that defendant No.1 has a permanent avocation at Gadag having a business, residing with his wife-defendant No.2. The suit schedule property 1(H) house property located at Gadag, bearing Sy.No.CTS-3867/B+ 3868/5, was purchased by defendant No.1 in the name of defendant No.2 out of the income derived from the suit landed properties. As such, the same is the joint family property of the plaintiff and defendant No.1. The plaintiff and defendant No.1 are the members of a Hindu joint family and no partition has taken place in between the plaintiff and defendants in the suit properties. Therefore, the plaintiff demanded for partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose

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for the plaintiff to file a suit for partition and separate possession. Therefore, prays to decree the suit. 5. The defendants No.1 and 2 filed a written statement denying the averments made in the plaint and disputed the genealogy of the family of the plaintiff and the defendants. It is contended that the propositus Sakrappa had six sons and not four sons. Further contended that Shankrappa the father of the plaintiff, and had gone in adoption to Chinnappa on 28.10.1954, and the birth of the plaintiff, was on 10.04.1952, before the adoption. It is denied that the plaintiff is the coparcener of the family of Sangappa. The father of the plaintiff went into adoption, wherein, the Hindu Succession Act, 1956, was not at all commenced. In pursuance of it, the plaintiff cannot be a coparcener as on the date of adoption, i.e., 28.10.1954. The grandfather of the plaintiff died on 21.05.1945. After the adoption of the plaintiff’s father, his connection with the genitive family and its properties was lost.

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property by defendants No.1 and 2. It is denied that the plaintiff is entitled to half share in the said suit property along with defendant No.1. It is also denied that the plaintiff and defendant No.1 are in joint possession of the suit schedule properties and the plaintiff has an equal share in the suit properties. Hence, prays to dismiss the suit. 7. The trial Court based on the pleadings of the parties, framed the following issues: ISSUES

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adoption on 28.10.1954 i.e., earlier to commencement of Hindu Succession Act, 1956 and that the plaintiff is not a coparcener in the genitive family as on the date of adoption of her father, hence she is not entitled to claim any share in the suit property. He submits that after the adoption of her father she ceases to be a coparcener in the genitive family and becomes a coparcener of the adopted family. As such, the plaintiff cannot maintain a suit for partition and separate possession. He submits that Hindu Succession Act, 1956 came into force on 17.07.1956. The female heirs will get a share in the share of a father as per the notional partition. Since the father has lost rights in the properties of the genitive family, the plaintiff, being a daughter cannot claim any partition in the genitive family properties. He submits that the daughter is be treated as a coparcener only by virtue of the Hindu Succession (Amendment) Act, 2005. He also submits that the suit 1(H) property was purchased by defendant No.2 along with Smt. Naaz Peer Pasha Mujahid under a registered sale deed of 1985 and the defendant No.2 is a practicing Doctor and has an independent source of

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income. The said property was not purchased out of the joint family nucleus. Further submits that Smt. Naaz Peer Pasha Mujahid orally gifted the property in favour of defendant No.1 and his mother, Manikamma. The plaintiff cannot question the oral gift without impleading Smt. Naaz Peer Pasha Mujahid as a party to the proceedings. He submits that the trial Court has committed an error in passing the impugned judgment. The impugned judgment passed by the trial Court is arbitrary, perverse and the same is liable to be set aside. Hence, on these grounds he prays to allow the appeal. 11. Per contra, learned counsel for the plaintiff submits that the father of the plaintiff went into adoption after the birth of the plaintiff. The plaintiff continued to be a member of genitive family. The suit schedule properties were owned and possessed by Sangappa i.e., the grandfather of the plaintiff. Plaintiff is entitled for partition in the properties of deceased Sangappa i.e., the grandfather of the plaintiff. He further fairly concedes that the Naaz Peer

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Pasha Mujahid is not a party to the suit. He further submits that defendants have failed to establish that the suit schedule 1(H) property was purchased by defendant No.2 out of her own earning. No documents have been produced by the defendants to establish that defendant No.2 was having a sufficient source of income for purchasing suit 1(H) property. Hence, on these grounds he prays to dismiss the appeal. 12. Perused the records and considered the submissions of the learned counsel for the parties. 13. The points that arise for our consideration are: 1) Whether the plaintiff proves that she is entitled to half share in the suit schedule properties?

2) Whether the defendant proves that the plaintiff is entitled for partition in the suit schedule properties in view of the adoption of her father?

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3) Whether the defendants prove that impugned judgment passed by the trial Court is perverse and arbitrary?

4) Whether defendants have made out a ground to entertain application for amendment of written statement?

5) Whether the defendants have made out a ground to produce additional evidence?

6) What order or decree?

Re. Points No.1 and 2 14. Points No.1 and 2 are taken together for common discussion, to avoid repetition of facts. 15. The plaintiff, to substantiate her case, examined herself as PW-1 and she has deposed that one Sakrappa was the original propositus. He had four sons, namely Ramappa, Sangappa, Chinnappa and Shankrappa. Sangappa died on 21.05.1945, leaving behind him his two sons, namely Parappa and Shankrappa. Shankrappa is the father of the plaintiff and defendant No.1 is the son of Parappa.

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Shankrappa died on 25.04.2009, while Parappa died on 25.11.1997. The Shankrappa had gone into adoption to Chinnappa on 28.10.1954 as per the registered adoption deed, leaving behind the plaintiff in the genitive family. The plaintiff is the coparcener in the family of her grandfather Sangappa by birth. She obtained the right of the coparcener as that of a son in the properties of the genitive family of Sangappa. She had deposed that suit schedule 1(H) property was acquired out of the joint family nucleus in the name of defendant No.2. The said property is the joint family property of plaintiff and defendant No.1 and are the members of the Hindu joint family and no partition is effected. To prove the case of the plaintiff the plaintiff has produced RTC extracts marked as Ex.P.1 to Ex.P.4. RTC of land bearing Sy.Nos.196, 250, 249 and Sy.No.12. All these lands are standing in the name of defendant No.1 except Ex.P.5, which is the VPC of the property bearing Sy.No.329, Exs.P.5 to P.7 are the VPC extracts, Ex.P.8. Ruled Card of CTS No.3867B+ 3868/5, Ex.P.9 is the adoption deed which discloses that the plaintiff’s father went in adoption to one

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Chinnappa. Ex.P.10 is the copy of the legal notice issued by the plaintiff to defendant No.1 calling the defendant No.1 to effect partition in the suit schedule property and the plaintiff is entitled to half share. Ex.P.11 is the postal receipt. Ex.P.12 is the reply notice to legal notice issued by defendant No.1 to the counsel for the plaintiff. Ex.P.13 is the Copy of the Newspaper wherein the plaintiff got issued a public notice requesting not to do any transaction with the defendant No.1 regarding properties mentioned in the Ex.P.13. Ex.P.14 is the mutation entry. 16. During the cross examination of PW-1 it is elicited that the defendant No.2 is the wife of defendant No.1 and defendant No.2 is a practicing doctor at Gadag. It is denied that defendant No.2, out of her income purchased the house at Gadag and she pleads ignorance about the income of defendant No.2. It is suggested to PW-1 that said property was purchased by defendant No.2 out of her income. The said suggestion was denied. She has deposed that her uncle had purchased the property in the name of defendant No.2.

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She pleaded ignorance of the consideration amount paid by her uncle for purchasing the said property. 17. From the perusal of cross-examination of DW-1, it is noticed that defendants have concentrated only on the property purchased in the name of defendant No.2, and it was suggested that the plaintiff has a share in the suit schedule properties. The said suggestion was denied by DW-1. 18. On the other hand, defendant No.1 was examined as DW-1. He has deposed that the plaintiff has no locus standi to file a suit. He has deposed that the plaintiff has born before coming into force of the Hindu Succession Act, 1956, and she is not entitled to claim any share and had no right under Hindu Succession Act, 1956 and the property, standing in the name of defendant No.2, is a self acquired property and nobody has right to claim share or right in the said property and it has filed with a malafide intention to harass the defendants.

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ancestral properties of the plaintiff and defendants. Insofar as suit 1(H) of the property is concerned, defendant No.2 has not produced any record to show that defendant No.2 was possessed a sufficient source of income for purchasing the schedule 1(H) property. Defendant No.2 being a doctor has not produced any income tax records to establish that it was purchased out of her own earnings. 21. Admittedly, the grandfather of the plaintiff was a male Hindu, he died intestate, leaving behind the suit properties except suit schedule 1(H) property. In the instant case, the question arises that, whether the plaintiff, being a granddaughter of Sangappa cannot claim a share in the suit schedule properties as a heir to him, merely because she was born before the adoption of her father, in the suit land as a heir to him, i.e., suit properties left by him belong to his genitive family. 22. The expression ‘property’ occurring in Section 8 of the Hindu Succession Act, 1956 must receive the widest possible interpretation. In our view it means and includes

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movable and immovable properties, whether separate or self acquired or any interest in a Mitakshara, coparcener property provided, he has left surviving any of the family heirs or a daughter, son mentioned in class-1 of the schedule property. 23. Now, we shall see whether the plaintiff cannot be considered to be a heir of her father, merely because she was born before her father was given in adoption. The expression ‘heir’ and ‘related’ are also defined in Section 3(f) and (j) respectively of the Hindu Succession Act, 1956. ‘Heir’ means any person male or female who is entitled to succeed to the property of the intestate under the Act. ‘Related’ means related by legitimate ‘kinship’. The proviso to this definition is not relevant for our purpose because, it is not in dispute that the plaintiff is the legitimate granddaughter of the deceased Sangappa. 24. It is true that the adoption had taken effect by removing Shankarappa from his natural family into the adoptive family, but did not and could not sever see the tie

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of blood relationship between him and plaintiff or, for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the granddaughter of deceased Sangappa. The plaintiff being a daughter falls in the category ‘heirs’ specified in class-1 of the schedule to the Act. There are no other heirs of deceased Shankarappa, falling in class-1. As such, as per Section 9 of the Act, plaintiff excluded all other heirs, if any, and took the property of the deceased Shankarappa, that being so, whether the plaintiff was born prior to adoption of deceased Sangappa or subsequent to his adoption, loses all its significance, as Shankarappa died intestate after coming into force of Act, 1956, i.e., on 25.04.2009. The plaintiff has not lost her right in the suit properties. The plaintiff is entitled to the share in the suit schedule properties. The Hon’ble Apex Court had an occasion to consider that the manner of inheritance under the Act in the case of the adoption of a married person before the enactment of the act has come for consideration. The Hon’ble Apex Court in the case of Kalindi Damodar Garde (D) by Lrs. Vs

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Manohar Laxman Kulkarni and Others reported in AIR 2020 SC 810, held that: “17. The manner of inheritance under the Act, in the cases of adoption of married persons before the enactment of the Act, has come up for consideration before the Learned Single Bench of Bombay High Court in an unreported Judgment (Dundyappa Laxman Karol v. Neelavva Chandrappa Jarali)6. In the said case, the plaintiffs were children of Shivappa, from his wife Gouravva, born before the adoption of Shivappa. The claim was in the estate of Shivappa, who died on 17th March 1957 that is after the commencement of the Act. Gouravva also died on 6 th August 1957. The stand of the defendant was that the plaintiffs being children of Shivappa before he went in adoption were not entitled to inherit the property of Gouravva, which she inherited from her husband. The learned Single Bench noticed that the adoption of Shivappa took place long before the enactment of Hindu Adoptions and Maintenance Act, 6 Second Appeal No. 556 of 1964 decided by Bombay High Court on 26th November, 1971. 1956 and thus adoption would be governed by Hindu law as it existed prior to enactment. The Court held that an adopted child is to be deemed as a child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. One important result of the severance of the ties in the family of birth would be that the adoptee can no longer claim any right to succeed to the property of his natural father or mother or any of the relations in the family of birth. The question considered was whether the children born prior to date of adoption of Shivappa would be entitled to inherit the property on the death of Gouravva which took place after

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coming into force of the Act. It was held that the property inherited by a Hindu female howsoever acquired would be her absolute property. The Court held as under:

“...Broadly speaking, the property possessed by a Hindu female after the coming into force of the said Act would no longer be her limited estate but will be regarded as her absolute property and the intestate succession to such property would be governed by sections 15 and 16 of the Hindu Succession Act. xx xx xx In my opinion, the fictional severance of ties with the natural family would not mean that her children would cease to be her children or can be considered to be not her children by means of a legal fiction. If by virtue of the definition in Section 3(j) even the illegitimate children of a Hindu female have been given a right to inherit her property, then it would not be permissible to say that her legitimate children should be excluded because they were born to her prior to the date of her husband's adoption. If, however, the Legislature had specifically provided for this, then effect must be given to such a provision and the wishes of the Legislature respected. Where, however, there is no such clear provision, such exclusion would appear to be against the plain language of the enactment and it would not be proper to come to any such conclusion."

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adoption would cease to be included in the category of her children.

"33. Mr. Paranjpe fairly stated that he could not find any authority taking the view that such a daughter would cease to be the daughter of her father because of his adoption. As far as we are aware, there is no text of any Dharmashashtra, which lays down that a daughter ceases to be a daughter the moment her father is given in adoption.

and hence we are of the view that Mr. Deo's contention that the daughter, the defendant, was entitled to the share in the suit lands, having regard to the provisions contained in ss. 8 and 15(b) read with s. 10, R. 1, must be upheld. The decree must, therefore, follow in favour of the plaintiff; only to the extent of the share in the suit lands.”

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was born prior to adoption i.e., in 1952. Merely Shankarappa had gone in adoption from the natural family to the adoptive family, but did not and could not sever see the tie of blood relationship between him and the plaintiff. Therefore, the plaintiff irrespective of the adoption of her father continued to be the granddaughter of Sangappa and is entitled to share in the suit schedule properties. Further, the Judgment of Hon’ble Apex Court (supra) is aptly applicable to the present case on hand. 26. Though it is the case of the defendants that defendant No.2 purchased the suit schedule 1(H) property out of her income, as she is a practicing doctor, to establish that defendant No.2 had a separate source of income, not produced any records. On the other hand, the plaintiff has shown that the family was possessing a nucleus for purchasing the said suit schedule property. Though defendant No.2 and Smt. Naaz Peer Pasha Mujahid jointly purchased the suit schedule 1(H) property, in the said property the defendant No.2 has half share. The said

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property was purchased out of joint family nucleus, and hence, the plaintiff has a share in the share of defendant No.2 i.e., half of the half share of defendant No.2, and remaining half share would go to Smt. Naaz Peer Pasha Mujahid. 27. Admittedly, the plaintiff has not arrayed Smt. Naaz Peer Pasha Mujahid, as a party to the suit. In view of the above discussion we answer point No.1 in the affirmative and point No.2 in the negative.

Re.Point No.3. 28. The trial Court, considering the entire material on record, was justified in passing the impugned judgment. The judgment and the preliminary decree passed by the trial court needs to be modified regarding allocation of share. In view of the above discussion we answer point No.3 in the affirmative.

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Re.Point No.4. 29. The defendants filed an application in I.A.No.1/2022 for an amendment of the written statement. In support of the application, defendant No.2 filed an affidavit stating that the suit schedule 1(H) property is purchased by defendant No.2 and one Smt.Naaz Mujahid for Rs.38,000/- and constructed a structure. Defendant No.2 and the said Naaz were having an independent income. She was practicing doctor, and getting the salary. Defendant No.2 and Smt.Naaz were income tax assessees and they were having sufficient funds to purchase suit 1(H) property. It is contended that defendant No.2 was having the documents, but the same were not produced before the trial court. Therefore, with the due diligence, to avoid further complications, the proposed amendment is necessary for the purpose of deciding the dispute, and it will not change the nature of the suit. 30. The plaintiff did not file any objections to the said application. From the perusal of the proposed amendment, it

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discloses that, defendant No.2 had purchased suit 1(H) property, out of the income of defendant No.2 and Smt.Naaz. From perusal of the written statement filed by defendant Nos.1 and 2, the said fact has been clearly pleaded in the written statement. It is stated that suit 1(H) property bearing CTS No.3868/B+3868/5A G.B.C.M.C. are not at all the ancestral properties of Sangappa. These properties are the self-acquired properties of defendant No.2 by her medical practice and from the fund of one Smt.Naaz on 22.06.1965, as an open space. The proposed amendment sought by defendant No.2 is already pleaded in the written statement. Defendant No.2 filed this application only to protract the proceedings. Further, though the appeal is filed in 2017, and I.A.No.1/2022 is filed in 2022. Defendant No.2 could not raise the proposed amendment before commencement of the trial. The Hon’ble Apex Court in the case of BASAVARAJ VS INDIRA BINDAL J reported in (2024) 3 SCC 705, held that, if the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of

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consideration of any application for amendment of the pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application. 31. In the instant case, though the appeal is filed in 2017, the application for amendment of the written statement is filed in 2022. Defendant No.2 has failed to make out a ground to allow the application. Based on the above discussion, we answer point No.4 in the negative. Re.Point No.5. 32. Defendant No.2 filed I.A.No.2/2022 under Order 41 Rule 27 of CPC for the production of an additional evidence mentioned in the list of documents. In support of the application, defendant No.2 filed an affidavit stating that, defendant Nos.1 and 2 have jointly filed the written statement before the trial court, contending that defendant No.2 and Smt.Naaz have jointly purchased the suit 1(H) property under the registered sale deed as per Ex.D2. Defendant No.2 and Smt.Naaz have got independent

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income, as defendant No.2 is a medical officer, and Smt.Naaz was also a medical practitioner working in Maharashtra Government and getting the salary. It is contended that, the proposed documents were handed over to the trial court advocate, however, the advocate opined that the sale deed itself is in the name of defendant No.2 and Smt.Naaz, it is not necessary to produce the documents regarding independent income. Thus, with a due diligence, the documents listed in the list of documents could not be produced. The present advocate after receiving all the papers from the trial court advocate, advised to make the production of these documents. It is contended that late Parappa was having another son by name Kiran, who was also a doctor practicing at USA. During his lifetime, he was transferring the amount to his mother’s account by name Manikamma. To clarify the same, his death extract and varsa certificate are also produced. Hence, on these grounds, prays to allow the application.

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Council on 09.05.1975. Defendant No.2 also produced her pass book of Vijaya Bank, Limited dated 03.04.1978; the pass book of Syndicate Bank; RD account at post office at Gadag; the Probate certificate in P & SC No.5/2009; Enquiry about the construction of a building from the Income Tax Department; Varsa certificate of Parappa Sangappa Gojanur; Death extract of Kiran Gojanur; Varsa certificate of Kiran Gojanur and the completion certificate. 35. All these documents produced by defendant No.2 are subsequent to the purchase of suit 1(H) property. Though these documents were in the custody of defendant No.2, defendant No.2 did not produce the said documents before the trial court. Defendant No.2 has not explained the reasons for not producing the said documents before the trial court. The trial court discarded the defence of the defendants that the suit schedule property was purchased out of the income of defendant No.2. In order to fill-up the lacuna, defendant No.2 has filed this application. The Hon’ble Apex Court in the case of N KAMALAM (DEAD) AND

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ANOTHER VS AYYASAMY AND ANOTHER reported in 2001 (7) SCC 503, has held that, the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. 36. Admittedly, in the instant case, the appeal was filed in 2017 and the application for the production of an additional evidence is filed in 2022. Thus, there is a delay of 5 years in filing the application. Hence, this application deserves to be rejected. Based on the above discussion, point No.5 is answered in the negative. Re.Point No.6. 37. We proceed to pass the following:

ORDER (i) Appeal is allowed in part. (ii) Judgment and decree passed by the trial Court is modified.

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(iii) Plaintiff is entitled to partition and separate possession in the suit schedule properties. (iv) Plaintiff is entitled to an equal share in item No.1(A) to (G) and a half share in the half share of defendant No.2, in item No.1(H) of the suit property. (v) As Smt. Naaz Peer Pasha Mujahid has a half share in the suit schedule 1(H) property, liberty is reserved to Smt. Naaz Peer Pasha Mujahid for filing a suit for partition and separate possession. No order as to the cost. The Office is directed to transmit the trial Court records.

Sd/- (ASHOK S. KINAGI) JUDGE

Sd/- (UMESH M ADIGA) JUDGE

BVK CT: BSB; List No.: 1 Sl No.: 2