- 1 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL REGULAR FIRST APPEAL NO. 21 OF 2013 (PAR) BETWEEN: 1. SMT VARALAKSHMI AGED ABOUT 56 YEARS D/O LATE THIMMAPPA W/O D.M.RANGAPPA Y.N. HOSAKOTE, DALAVAYHALLI PAVAGADA TALUK-561202. TUMKUR DISTRICT. 2. SMT GOWRAMMA AGED ABOUT 48 YEARS D/O LATE THIMMAPPA W/O A. THIMMAPPA Y.N. HOSAKOTE, DALAVAYHALLI PAVAGADA TALUK-561202, TUMKUR DISTRICT. 3. KUM. CHANDRIKA AGED ABOUT 41 YEARS D/O LATE THIMMAPPA NO.662, GANGAMMANAGUDI STREET IV CROSS, DEVARAJ URS CROSS ROAD MYSORE-570001 …APPELLANTS (BY SRI.KUMARA K.G., ADVOCATE) Digitally signed by CHANNEGOWDA PREMA Location: High Court of Karnataka - 2 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 AND: 1. RAMA AGED ABOUT 54 YEARS S/O LATE THIMMAPPA NO.562, GANGAMMANAGUDI STREET IV CROSS, DEVARAJ URS CROSS ROAD MYSORE-570001. 2. RAMAKRISHNA AGED ABOUT 51 YEARS S/O LATE THIMMAPPA NO.562, GANGAMMANAGUDI STREET IV CROSS, DEVARAJ URS CROSS ROAD MYSORE-570001 3. HANUMANTHA AGED ABOUT 48 YEARS S/O LATE THIMMAPPA NO.562, GANGAMMANAGUDI STREET IV CROSS, DEVARAJ URS CROSS ROAD MYSORE-570001 4. SMT PRABHA AGED ABOUT 40 YEARS W/O M. PUTTASWAMY NO.984, II STAGE NORTH, BOGADI, MYSURU-570001 …RESPONDENTS (BY SRI.K.B.MONESH KUMAR, ADVOCATE FOR R4; R1 TO R3 SERVED & UNREPRESENTED) - 3 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 THIS RFA IS FILED U/SEC 96, R/W, O-41-A, RULE-2 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 01.09.2012 PASSED IN O.S.194/2006 ON THE FILE OF COURT OF SMALL CAUSE AND SENIOR CIVIL JUDGE, MYSORE, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN and HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MRS JUSTICE ANU SIVARAMAN) The plaintiffs are before this Court, in this RFA, assailing the legality and correctness of the judgment and decree dated 01.09.2012 passed in O.S.No.194/2006 on the file of the Principal Judge, Small Causes and Senior Civil Judge, Mysore (for short, 'the Trial Court'). 2. For the sake of convenience, the parties herein are referred to as per their ranks before the trial Court. 3. Brief facts of the case are as follows; - 4 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 The appellants who are the plaintiffs before the trial Court, filed the suit O.S.No.194/2006 seeking partition and separate possession. It is submitted that the properties which were sought to be partitioned consist of Schedule-I which was house property and Schedule-II which was an agricultural land, measuring 8 acres 26 guntas. It is contended that the original propositus Thimmappa died on 03.08.1973 leaving behind the appellants and respondents No.1 to 3. He possessed the Suit Schedule Properties which he inherited from his father Sodada Ramaiah. After the death of Thimmappa, the appellants and the respondents inherited the Suit Schedule Properties and continued to be in joint possession of the Suit Schedule Properties. It is contended that the respondents with a view to deprive the legal inheritance to the appellants, have tried to dispose of the Suit Schedule Properties. In the circumstances, the appellants sought for division of the ancestral properties and placing them in - 5 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 possession of their respective shares. When the defendants refused to divide the Schedule Properties, the suit came to be filed before the trial Court claiming 10/35th share in the Suit Schedule Properties. 4. In response to suit summons issued by the trial Court, defendants No.1, 2 and 5 have appeared through their counsel and filed their written statement. Defendants No.3 and 4 did not appear and contest the case of the plaintiffs. Hence, they placed ex-parte before the trial Court. 5. The trial Court based on the pleadings, framed the following issues for its consideration: 1) "Whether the plaintiffs prove that suit properties are the joint family and ancestral properties of plaintiffs and defendants as pleaded? 2) Whether defendants prove that plaintiffs have already received their share of value - 6 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 as such they have no right to claim partition as alleged? 3) Whether defendants proves that they have sold part of the suit properties as pleaded in para 3 of Written Statement for family necessity and for the benefit of joint family as pleaded? 4) Whether defendants prove that suit is not properly valued and court fee paid therein is incorrect? 5) Whether plaintiffs prove that they are entitled for the relief as claimed? 6) What order or decree?" 6. In order to substantiate the claim of plaintiff No.3, she examined herself as PW-1 and got marked the documents from Exs.P1 to P4. The defendants in support of their defence, examined one witness as DW-1 and got marked the documents from Exs.D1 to D11. 7. The trial Court based on the pleadings, oral and documentary evidence, decreed the suit of the plaintiffs in - 7 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 part holding that the plaintiffs are entitled for partition and separate possession of their 1/28th share each in the Suit Schedule Properties, while holding that the plaintiffs are not entitled for mesne profit in respect of item No.2 of the Suit Schedule Property. However, the sale made by defendants No.1 to 4 in favour of defendant No.5 was not to be disturbed as far as possible and in equity shall be allotted to the share of defendants Nos.1 to 4 at the time of final decree proceedings. 8. It is submitted by the learned counsel appearing for the appellants that though the suit has been decreed and preliminary decree has been passed holding that the appellants are entitled for partition and separate possession of their 1/28th share in the Suit Schedule Properties, there was a sale conducted by defendants No.1 to 4 in favour of defendant No.5 during the pendency of the suit and when an interim injunction order against alienation was in force. It is submitted that 5 acres 4 guntas, out of 8 acres 26 guntas of land in suit schedule - 8 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 'B' property/item No.2 property had been sold to respondent No.5 by a sale deed executed by defendants No.1 to 4 in July, 2006. 9. It is contended by the learned counsel for the appellants that the trial Court found that the contentions raised by the appellants in the plaint are correct and held that they are entitled to 1/28th share in the Suit Schedule Properties. However, it is submitted that the trial Court also held that the sale made by defendants No.1 to 4 in favour of defendant No.5 may not be disturbed as far as possible and the property sold shall be allotted to the share of defendants No.1 to 4 at the time of final decree proceedings. 10. Learned counsel for the appellants submits that the appellants are aggrieved by the said finding of the trial Court and that their share would be diminished by virtue of the said observation by the trial Court. - 9 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 11. Learned counsel appearing for respondent No.5, on the other hand, contends that defendant No.5 had taken a specific case before the trial Court that she was a bona-fide purchaser of the property without notice of the suit and that defendants No.1 to 4 had defrauded her by not informing her of the fact of pendency of the suit. 12. It is further submitted that an agreement for sale had been entered into between defendants No.1 to 4 and defendant No.5 who had even taken paper publication of the fact of impending sale and as such, the said contention raised by the appellants are absolutely untenable. 13. It is further submitted that since the plaintiffs are found entitled to partition and separate possession of 1/28th share each in the Suit Schedule Properties and even Schedule-II property has much larger extent i.e., 8 acres and 28 guntas, the contention of the appellants that they will be put to prejudice, in any manner, by the direction - 10 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 not to disturb the sale in favour of defendant No.5 as far as possible is absolutely unfounded. 14. In view of the rival contentions urged by the learned counsel for the parties, the following point would arise for our consideration: "Whether the appellants have made out any case to interfere with the impugned judgment and decree passed by the trial Court?" 15. Having considered the contentions advanced on either side, we notice that the trial Court has held that the plaintiffs are entitled to partition and separate possession of 1/28th share each in the Suit Schedule Properties. Schedule-II property which is relevant for consideration of the issue raised by the appellants in this appeal is an agricultural land having an extent of 8 acres and 28 guntas. 16. It is clear from the contentions of the parties and the pleadings on record that the sale in July, 2006 by - 11 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 defendants No.1 to 4 in favour of defendant No.5 was for an extent of 5 acres 4 guntas. Therefore, it is clear that there is property in Schedule-II itself to satisfy 1/28th share of the plaintiffs as has been found by the trial Court. 17. In the above view of the matter, we are of the opinion that the plaintiffs will not be put to any prejudice by the direction that the sale made by defendants No.1 to 4 in favour of defendant No.5 may not be disturbed as far as possible. 18. We make it clear that in the final decree proceedings, the third direction issued by the trial Court will not prejudice the plaintiffs in any manner and they would be entitled to their 1/28th share in the property. Since no other questions have been raised in the appeal and the appeal was confined to the said direction at the time of arguments, we dispose of the appeal upholding the preliminary decree and directing that in the final decree proceedings, the appellants will not be put to any - 12 - NC: 2025:KHC:2516-DB RFA No. 21 of 2013 prejudice on account of the direction and equity granted in favour of defendant No.5. 19. Accordingly, the appeal stands disposed of. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE PN List No.: 1 Sl No.: 28