The High Court
Case Details
- 1 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1110 OF 2020 (PAR) BETWEEN: DASAPPA S/O LATE GOVINDAPPA AGED ABOUT 77 YEARS, RESIDING AT DODDAGARAHARA VILLAGE AT POST BUKKAPATTANA HOBLI SIRA TALUK TUMAKURU DISTRICT-572115 AND ALSO AT R/AT NO.629, 2ND MAIN 2ND STAGE E BLOCK, RAJAJINAGAR BENGALURU-560010 (BY SRI. JAYASIMHA K P., ADVOCATE) …APPELLANT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA AND: 1. MUDLAPPA S/O LATE GOVINDAPPA AGED ABOUT 83 YEARS 2. MAHALINGAPPA S/O LATE GOVINDAPPA AGED ABOUT 81 YEARS RESPONDENT No.1 AND 2 ARE R/O DODDAGRAHARA VILLAGE AND POST BUKKAPATTANA HOBLI SIRA TALUK TUMAKURU-572115 3. D M BHOJARAJA S/O MAHALINGAPPA, AGED ABOUT 52 YEARS - 2 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 4. D M SHANTHARAJA S/O MAHALINGAPPA AGED ABOUT 50 YEARS 5. D M GIRISH S/O MAHALINGAPPA AGED ABOUT 52 YEARS RESPONDENT Nos.3 TO 5 ARE RESIDING AT DODDAGRAHARA VILLAGE AT POST BUKKAPATTANA HOBLI SIRA TALUK TUMAKURU DISTRTICT-572115 …RESPONDENTS (BY SRI. PATEL D KARE GOWDA, ADVOCATE FOR R1 & R2 SRI. R.S. UMESH, ADVOCATE FOR R3 TO R5) THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 12.06.2020 PASSED IN RA.No.224/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 14.08.2019 PASSED IN OS.No.33/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 12.6.2020 passed in R.A.No.224/2019 by the VII District Judge, Tumakuru. - 3 - NC: 2025:KHC:14486 RSA No. 1110 of 2020
Legal Reasoning
2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 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. It is the case of the plaintiff that, one Govindappa was the original propositus, and plaintiff and defendants No.1 and 2 are the sons of late Govindappa. Defendants No.3 to 5 are the sons of defendant No.2. It is contended that the suit schedule properties are the ancestral and joint family properties of late Govindappa and his sons. Govindappa and his sons attempted to divide the suit schedule properties under the Panchayath Parikath dated 3.12.1986, where the measurement of the property situated at Punaji Halli was not mentioned, hence, it was rectified by a document dated 6.12.1986. But the parties have not acted upon. It is contended that defendants No.2 to 5, by colluding with each other, created another panchayath parikath dated - 4 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 2.11.2000. The defendants No.3 to 5, taking advantage of the absence of the plaintiff, who was working as a Supervisor at the Agricultural University, Bengaluru, changed the katha of the properties in their name. It is contended that the plaintiff has a share in the suit schedule properties. The plaintiff demanded partition and separate possession. But the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. After service of summons, defendants No.1 to 5 appeared through counsel and defendants No.1 and 2 have not filed written statement. 4.1. Defendants No.3 to 5 filed a common written statement admitting the relationship between the parties to the suit, and also all the suit schedule properties were the ancestral and joint family properties of Govindappa and his sons. It is contended that after the demise of Govindappa, the plaintiff and defendants no.1 and 2 got divided the ancestral and joint family properties through - 5 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 panchayath parikath dated 3.12.1986, and consequently, they are in possession of their respective shares and revenue entries have been changed into the names of their respective parties. It is contended that defendants No.3 to 5 divided the properties allotted to the share of defendant No.2 amongst themselves through panchayath
Legal Reasoning
parikath dated 2.11.2000. It is contended that there was a prior partition between the plaintiff and defendants no.1 and 2. Hence, the question of seeking partition does not arise. Thus, the suit for partition is not maintainable. It is also contended that the plaintiff has not included the house property at Bengaluru and survey No.174 measuring 9 acres and ½ gunta at Doddaagrahara village. Hence, the suit for partial partition is not maintainable. Hence, pray to dismiss the suit. 5. The trial Court, based on the pleadings of the parties, framed the following issues. 1. Whether the plaintiff proves that the suit family schedule properties of plaintiff and defendants? properties joint are - 6 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 2. Whether the plaintiff proves that, he is entitled for 1/3rd share in the suit schedule properties? 3. whether the defendants prove that there was already a partition between plaintiff and defendants and into a Panchayath Parikath dated 03.12.1986? they entered 4. Whether the plaintiff is entitled for relief sought for in the plaint? 5. What Order or Decree? 6. The plaintiff, to substantiate his case, examined himself as PW.1 and marked 48 documents as exhibits P.1 to P.48. On the other hand, defendant No.3 was examined as DW.1, examined two witnesses as DWs.2 and 3, and marked 25 documents as exhibits D.1 to D.25. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of verbal and documentary evidence, answered issue No.1 in the affirmative, issues no.2 and 4 partly in the affirmative, issue No.3 in the negative and issue No.5 as per the final order. The suit of the plaintiff was decreed. It was ordered and declared that the plaintiff is entitled to partition and separate possession of his 5/16th share in the suit properties. It is also ordered - 7 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 and decreed that defendant No.1 is entitled to partition and separate possession of 5/16th share in the suit properties and defendants No.2 to 5 together are entitled for 5/16th share. Smt.Lakshmamma D/o.Govindappa is entitled to 1/16th share and the suit for the relief of permanent injunction was dismissed. 7. Defendants No.3 to 5, aggrieved by the judgment and preliminary decree dated 14.8.2019 passed in O.S.No.33/2015, preferred an appeal in R.A.No.224/2019 on the file of learned VII Additional District Judge, Tumakuru. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration : 1. Whether the trial Court was correct in decreeing the suit? 2. Whether the impugned judgment and decree calls for interference? 3. What order? 8. The first Appellate Court, on re-assessment of verbal and documentary evidence, answered issue No.1 in the negative, and issue No.2 in the affirmative and point No.3 - 8 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 as per the final order. The appeal was allowed with costs. The judgment and decree passed in O.S.No.33/2015 was set aside. Consequently, the suit of the plaintiff in O.S.No.33/2015 was dismissed. The plaintiff, aggrieved by the impugned judgment, filed this Regular Second Appeal. 9. Heard the arguments of the learned counsel for the plaintiff and the defendants. 10. Learned counsel for the plaintiff submits that all the suit schedule properties are the ancestral and joint family properties of the Late Govindappa and his sons. After the demise of Govindappa, there is no partition effected between the parties. The suit properties are the joint family properties. He submits that the parties have not acted upon the panchayathi parikath dated 03.12.1986, which was further rectified by the document dated 06.12.1986. The defendants fraudulently created the panchayath parikath dated 02.11.2000. The first appellate Court has not properly appreciated the evidence on record. The first appellate Court committed a serious - 9 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 error in passing the impugned judgment. Hence, he prays to allow the Regular Second Appeal. 11. Per contra, learned counsel for the defendants submits that after demise of Govindappa, plaintiff and defendant Nos.1 and 2 got divided the ancestral and joint family properties through Panchayath Parikath dated 03.12.1986 and also it was rectified by the document dated 06.12.1986. Based on the panchayath parikath, they were put in possession of their respective shares. The revenue entries have been entered in the names of their respective parties. He submits that the defendant Nos.3 to 5 got divided the properties allotted to the share of defendant No.2, amongst themselves through Panchayath Parikath dated 02.11.2000. He submits that there was a prior partition between the plaintiff and defendant Nos.1 and 2. Hence, the suit filed by the plaintiff is not maintainable. He submits that the plaintiff has not included the house property at Bengaluru and survey No.174 measuring 9 acres and half guntas at Doddaagrahara village. Hence, the first appellate Court - 10 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 was justified in passing the impugned judgment. The judgment and decree passed by the first appellate Court is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. 12. This Court, on 09.12.2020, admitted the appeal to consider the following substantial question of law. judgment 1. Whether the first appellate Court was justified in allowing the appeal by setting aside the in O.S.No.33/2015 on the ground that the prior partition dated 03.12.1986, when the same was not given effect to by the members of the joint family? passed decree and Regarding the Substantial Question of Law: 13. The plaintiff to substantiate his case, examined himself as PW1, he reiterated the plaint averments in the examination-in-chief and to prove that the suit schedule properties are the joint family properties of the plaintiff and the defendants, produced the documents. Ex.P1 is the Genealogical tree. Ex.P2 to Ex.P5 are the copies of the mutations - 11 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 Ex.P6 to the Ex.P20 are the RTC extracts Ex.P21 is the office copy of the legal notice Ex.P22 is the postal receipt ExP23 to Ex.P27 are the postal acknowledgements. Ex.P28 and Ex.P29 are the registered sale deeds. Ex.P30 and Ex.P31 are the copies of the mutation. Ex.P32 is a copy of the akar band. Ex.P33 is the sketch Ex.P34 is the RTC extract Ex.P35 is the sale deed Ex.P36 is the letter issued by the Bengaluru Muncipality. Ex.P37 and Ex.P39 and Ex.P41 are the mortgage deeds. Ex.P38, Ex.P43, and Ex.P44 are the encumbrance certificates. Ex.P40, Ex.P42, Ex.P45 are the receipts Ex.P46 to Ex.P48 are the bank receipts. 14. During the course of cross examination, PW1 admitted regarding the partition effected between the - 12 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 plaintiff and defendant Nos.1 and 2 and a document was executed, which is styled as panchayath parikath dated 03.12.1986. He admitted suggestion regarding the allottment of properties bearing survey No.3, 174/3 and house to the plaintiff under panchayath parikath and further admitted that the properties under survey Nos.2, 3, 18/2 and 174/2 were allotted to the share of defendant No.2. PW1, volunteers that revenue entries of land allotted to him are in the joint names of himself and his brothers. He admitted that he is in exclusive possession of the lands allotted to him under the panchayath parikath. He also admitted that defendant No.4 is looking after the properties fallen to his shares and further he has signed as a consenting witness to Ex.D1. Ex.D1 is an unregistered panchayath parikath dated 02.11.2000, entered into between defendant Nos.2 to 5, in which the suit properties were allotted to the shares of defendants No.3 to 5. The signature of PW1 is marked as Ex.D1(b) 15. On the other hand, defendant No.3 was examined as DW1, he reiterated the written statement - 13 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 averments in the examination-in-chief and to prove the defense that there was a prior partition between the plaintiff and defendant Nos.1 and 2 on 03.12.1986, subsequently, a partition was effected between the defendant Nos.3 to 5 under the panchayath parikath dated 02.11.2000, produced the documents. The copy of the panchayath parikath is marked at Ex.D1. Ex.D2 to Ex.D4 are the copies of the mutations Ex.D5 and Ex.D6 are the sketch copies Ex.D7 to Ex.D24 are the RTC extracts Ex.D25 is a copy of the katha 16. The defendant also examined two witnesses as DW2 and DW3 who have deposed that there was a partition between the plaintiff and defendant on 03.12.1986 and the partition was adduced in writing and based on the partition effected on 03.12.1986, the names of the respective parties were entered in the revenue records. He deposed that, subsequently, a partition was effected between defendant Nos.3 to 5, and the parties are in possession of their respective shares. - 14 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 17. From the perusal of entire evidence on records, PW1 has admitted regarding the partition effected between the plaintiff and defendants on 03.12.1986 and based on the partition mutations were effected as per Ex.P4 and Ex.D2. Further, PW1 admitted that survey Nos.3, 174/3 and the house fell to the share of the plaintiff in panchyath parikath and further admitted that under panchayath parikath, Sy.Nos.2, 3, 18/2 and 174/2 were fell to the share of defendant No.2 and he has admitted that he is in exclusive possession of the lands allotted to him under the panchayath parikath dated 03.12.86. From the admission of PW1, it is clear that there is a disruption of joint family status and further the plaintiff has affixed his signature on Ex.D1 as a consenting witness. Ex.D1 is the an unregistered panchayath parikath entered into between defendant Nos.3 to 5 under which the suit schedule properties fell to the share of defendant No.2 under panchayath parikath dated 02.11.2000. The admission of PW1 is sufficient to hold that there was a prior partition between the plaintiff, defendant Nos.1 and 2 - 15 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 on 03.12.1986 and the parties were put in possession of their respective shares. The plaintiff, despite partition, has filed the present suit seeking partition and separate possession. 18. The trial Court, without considering the admission of PW1 regarding the prior partition, committed an error in decreeing the plaintiff’s suit. The first appellate Court considering the admission of PW1 regarding the prior partition dated 03.12.1986 and in the said partition Sy.No.3, 174/3 and the house were fell to the share of the plaintiff, has rightly held, as on the date of filing of suit, the suit schedule properties were not in joint possession of the plaintiff and defendant Nos.1 and 2 and they were not the members of a Hindu Undivided joint family. The suit schedule properties were not amenable for partition and separate possession. However, it is the case of the plaintiffs that defendant Nos.3 to 5 have encroached certain portion of the properties fell to his shares under the panchayath parikath dated 03.12.1986. The first appellate Court while dismissing the appeal, reserved the - 16 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 liberty to the plaintiff to initiate the appropriate proceedings for safeguarding the properties allotted to his shares. Considering the admissions of PW1 regarding the prior partition, the first appellate Court was justified in recording its finding that the suit schedule properties were not the joint family properties and the plaintiff and defendant Nos.1 and 2 are not members of the Hindu Undivided Family. In view of the admission of PW1, regarding the prior partition, the fact admitted need not be proved as per Section 58 of the Indian Evidence Act. The first appellate Court, considering the entire evidence on record, has rightly passed the impugned judgment. Hence, I do not find any error in the impugned judgment. In view of the above discussions, I answer the substantial question of law in the affirmative. 19. Accordingly, I proceed to pass the following order.
Decision
ORDER 1. The appeal is dismissed. - 17 - NC: 2025:KHC:14486 RSA No. 1110 of 2020 2. The Judgment and decree passed by the first appellate Court in R.A.No.224/2019 dated 12.06.2020 on the file of VII Additional District Judge, Tumkuru, is confirmed. No order as to the costs. In view of the dismissal of the appeal, IA.No.1/2020 does not survive for consideration. Accordingly, IA.No.1/2020 is disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RS,RCK