NAGAMMA Vs. SHIVALINGAPPA

JUDGEMENT

(1.) This appeal is filed by the plaintiffs, whose application viz., I.A.No.VIII in a suit O.S.No.94/2004 on the file of I Additional Senior Civil Judge, Kalaburagi (for short "the trial Court") under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure (for short "the CPC") read with Section 151 of CPC is rejected. The appellants' application is for direction to the defendant/respondent to undergo a DNA profiling test along with the appellants to establish the paternity of the appellants. The trial Court by the impugned order has rejected the application.

(2.) The appellants have filed the suit in O.S.No.94/2004 for partition and separate possession of suit schedule properties viz., agricultural lands in Sy.No.55 Hissa 4, 5, 8A measuring 04 acres 15 guntas and land Sy.No.62 Hissa 03 measuring 08 acres 32 guntas of Melkund (K) village, Gulbarga Taluk and District. The appellants have asserted that the appellants' mother, Smt. Laxmibai, was married to the respondent and they are their children. However, the defendant/respondent developed intimacy with another, Smt. Parvati, and he and Smt. Parvati have six children. The appellants have also contended that they and the respondents are members of a Hindu joint family. Therefore, the appellants are entitled for a share in the suit schedule lands.

(3.) The learned counsel for the appellants submits that the appellants have filed I.A.No.VIII when the suit was listed for arguments. But, the learned counsel for the respondent submits that the application is filed when the suit was listed for evidence. Be that as it may, the trial Court has dismissed the application on the ground that the appellants have not exhausted the remedy available to prove the relationship with the respondent. Therefore, the appellants cannot seek assistance of DNA Test to prove the paternity.