The High Court
Case Details
- 1 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1011 OF 2022 (PAR) BETWEEN: 1. SMT. SAVITHRAMMA D/O. MAYANA, W/O. SIDDARAJU, AGED ABOUT 45 YEARS, R/AT 56, 6TH CROSS, LAKSHMANA BUILDING, NAGASANDRA COLONY, BENGALURU-560 073. 2. SMT. PARVATHAMMA @ ASHA D/O. MAYANA, W/O. GARUDAIAH, AGED ABOUT 39 YEARS, R/AT 8TH CROSS, 4TH MAIN, NEAR DHOBI GHAT, SS PURAM, TUMAKURU-572 102. (BY SRI. V B SIDDARAMAIAH, ADVOCATE) …APPELLANTS AND: 1. SRI.MAYANNA S/O GAVITHIMMAIAH, AGED ABOUT 80 YEARS, 2. SMT. RANGAMMA W/O. MAYANA, AGED ABOUT 69 YEARS.
Legal Reasoning
Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16269 RSA No. 1011 of 2022
Legal Reasoning
3. SRI GAVEGOWDA S/O LATE MUNIRANGAIAH, AGED ABOUT 55 YEARS, 4. MAREGOWDA S/O MAYANNA, AGED ABOUT 59 YEARS, R/AT HETHENAHALLI VILLAGE, GULUR HOBLI-572 118 TUMAKURU TALUK 5. SRI GANGANNA S/O LATE MUNIRANGAIAH, AGED ABOUT 47 YEARS, 6. SRI RANGASWAMY S/O LATE MUNIRANGAIAH, AGED ABOUT 43 YEARS, RESPONDENT NO.1 TO 3, 5 AND 6 ARE R/AT NARUGANAHALLI VILLAGE, GULUR HOBLI-572 118 TUMAKURU TALUK AND DISTRICT. …RESPONDENTS (R3, R5 AND R6 ARE SERVED, VIDE ORDER DATED 17.04.2023 SERVICE OF NOTICE TO R1 AND R2 IS HELD SUFFICIENT, VIDE ORDER DATED 17.04.2023 R2, R3, R5 AND R6 ARE TREATED AS LR'S OF DECEASED R4) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.09.2019 PASSED IN RA.NO.106/2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 03.03.2018 PASSED IN OS No.29/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the portion of the judgment and decree dated 04.09.2019 passed in R.A.No.106/2018 by the learned Principal District Judge at Tumakuru, dismissing the suit regarding item No.6 of the suit schedule properties, by modifying the Judgment and preliminary decree dated 03.03.2018 in O.S No.29/17 passed by II Additional Senior Civil Judge and JMFC, Tumakuru. 2. For convenience, parties are referred to based on their ranking before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that the suit schedule properties originally owned by Gavithimmaiah. He had a wife named as Arvithamma. They had children, namely, Gaviyamma, Kariguddaiah, Rangamma @ Yalavamma, Muniyamma, Ranga, Boramma, - 4 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 Nanjamma, Munirangaiah and defendant No.1 - Mayanna. Gaviyamma, Rangamma, Muniyamma, Boramma and Nanjamma died long back, and Kariguddiah and Ranga died unmarried. Defendants No.2 to 6 are the children of Munirangaiah and the plaintiffs are the daughters of 1st defendant. The plaintiffs and the defendants constituted a Hindu Joint family; the suit schedule properties are their ancestral and joint family properties. They are in joint possession and enjoyment of the same. It is contended that the defendants were acting adverse to the interest of the plaintiffs. Hence, the plaintiffs constrained to file a suit for partition and separate possession. 4. Defendants No.1, 2 and 6 appeared through counsel but did not file a written statement. Defendants No.3 to 5 were placed exparte. 5. To substantiate their case, the plaintiffs examined P2 as PW-1, examined two witnesses as PW-2 and PW-3 and marked 10 documents as Exs.P1 to P10. 6. The trial Court after recording the evidence and hearing the arguments, framed necessary points for - 5 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 consideration. The trial Court partly decreed the suit with costs and ordered and declared that the plaintiffs are entitled to partition and separate possession of their 1/3rd share in the 1/2 share of defendant No.1 in suit schedule items No.2 to 5 properties by metes and bounds. 7. The plaintiffs, aggrieved by the judgment and preliminary decree passed in O.S.No.29/2017 in respect of item Nos.1 and 6 of the suit schedule properties, preferred an appeal in R.A.No.106/2018 on the file of Principal District Judge, Tumakuru. 8. The First Appellate Court, on reassessing the verbal and documentary evidence, allowed the appeal in part and the judgment and preliminary decree passed by the trial Court was modified. It is ordered and declared that the plaintiffs are also entitled to partition and separate possession of their 1/3rd share in the half share of defendant No.1 in items No.2 to 5 properties along with Sy.No.63/5 in item No.1 and rest of the judgment and decree stands confirmed. The plaintiffs aggrieved by the dismissal of the suit regarding item No.6 of the suit property filed this - 6 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 Regular Second Appeal. 9. Heard learned counsel for the plaintiffs. 10. Learned counsel for the plaintiffs submits that both the Courts below have committed an error in dismissing the suit in item No.6. of the schedule property. He submits that item No.6 is the ancestral and joint family property of the plaintiffs and defendants. He submits that item No.6 is purchased out of the joint family nucleus. He submits that both the Courts below have committed an error in recording the findings that the plaintiffs have not produced any records to show that suit item No.6 is the joint family property of the plaintiffs and defendants. He submits that the plaintiffs have filed an application for the production of additional evidence. He submits that proposed additional documents disclose that suit item No.6 was standing in the name of Munirangaiah. The said property is a joint family property. Hence, he prays to allow the application I.A.No.1/2024 and also the appeal. 11. Perused the records and considered the submission of learned counsel for the plaintiffs. - 7 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 12. Admittedly, there is no dispute between the parties regarding the items No.1 to 5 of the suit schedule properties. Though the plaintiffs have taken the contention that item No.6 of the suit schedule property is a joint family property. To establish that item no.6 of the suit schedule property is a joint family property, the plaintiffs have not produced any records and to establish that as on the date of purchasing of item No.6 of the suit schedule properties, the plaintiffs were possessing a sufficient nucleus, they have not produced any records. In the absence of evidence on record, both the Courts below concurrently recorded a finding that item No.6 of the suit schedule property is not a joint family property. It is settled law that in a suit for partition and separate possession, the initial burden is always on the plaintiffs to establish the relationship and nature of the suit schedule properties. 13. As observed above, the plaintiffs failed to establish that the family possessed a sufficient nucleus to purchase item No.6 of the suit schedule property. Both the Courts below have rightly passed the impugned judgments - 8 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 regarding item No.6 of the suit schedule properties. 14. I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal. 15. The plaintiffs have filed an application for production of additional evidence. It is stated that at the time of filing the suit and in the appeal before the First Appellate Court, the defendants have not produced any documents to show that item No.6 of the suit schedule properties belongs to the joint family. In the panchayath record and khatha, item No.6 of the suit schedule property stands in the name of Munirangaiah, and the defendants have not denied the existence of item No.6 of the suit schedule property. The trial Court and the First Appellate Court denied the shares of the plaintiffs in item No.6 of the suit schedule property. Since the assessment register extract was not available to the plaintiffs, they could not furnish the same before the trial Court and the First Appellate Court. Recently they have traced out the copy of - 9 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 the assessment register extract and the said document is relevant for deciding the matter in dispute and hence, prays to allow the application. 16. Admittedly, the plaintiffs have filed suit in 2017. The plaintiffs have pleaded that item No.6 of the suit schedule property is a joint family property of the plaintiffs and defendants and the same was purchased out of a joint family nucleus. The trial Court has already recorded a finding in point No.1 that the plaintiffs failed to prove that item No.6 of the suit schedule property was acquired from the joint family nucleus. It is settled law that there is no presumption regarding the joint family property. The plaintiffs have failed to establish that item No.6 is the joint family property of the plaintiffs and defendants. The plaintiffs have not sufficiently explained why such document was not produced before the trial Court and the First Appellate Court. The plaintiffs have not fulfilled the ingredients of Order XLI Rule 27 of CPC. The object of Order XLI Rule 27 is not to fill up the lacuna. The plaintiffs are producing the additional evidence to fill up the lacuna, which - 10 - NC: 2025:KHC:16269 RSA No. 1011 of 2022 is impermissible. The plaintiffs have not made out a ground to allow I.A.No.1/2024. 17.
Decision
In view of the above discussion, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree passed by the First Appellate Court in R.A.No.106/2018 dated 04.09.2019 by the Principal District Judge, Tumakuru, is confirmed. iii. I.A.No.1/2024 is rejected. No order as to costs. Sd/- (ASHOK S.KINAGI) JUDGE AG List No.: 1 Sl No.: 15