- 1 - NC: 2025:KHC:9235 RSA No. 312 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 312 OF 2022 (DEC/PAR) BETWEEN: 1. H R GIRIGOWDA S/O H R RAMDAS AGED ABOUT 34 YEARS 2. SMT H R JYOTHI S/O B R RAMDAS AGED 36 YEARS APPELLANTS No. 1 AND 2 ARE R/AT HUCHHAVANAHALLY KASABA HOBLI, HIRIYURU TQ CHITRADURGA DIST. – 577598 …APPELLANTS (BY SRI. MURTHY K., ADVOCATE) AND: 1. SRI H R RAMDAS S/O RANGAPPA AGED ABOUT 61 YEARS 2. SRI. THIMMARAYAPPA S/O DODDANNA MAJOR 3. SMT. VIJAYAMMA D/O THIMMARAYAPPA MAJOR RESPONDENT Nos.1 TO 3 ARE R/AT HUCHHAVANAHALLY Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9235 RSA No. 312 of 2022 KASABA HOBLI, HIRIYURU TQ CHITRADURGA DIST – 577598 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.11.2020 PASSED IN RA.No.18/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HIRIYUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.08.2017 PASSED IN OS No.151/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, HIRIYUR. THIS APPEAL, COMING ON FOR ADMISSION, 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 appellants challenging the judgment and decree dated 09.11.2020 passed in R.A.No.18/2017 by the learned Senior Civil Judge and JMFC, Hiriyur and the judgment and preliminary decree dated 03.08.2017 passed in O.S.No.151/2012 by the learned Principal Civil Judge and JMFC, Hiriyur. 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 - NC: 2025:KHC:9235 RSA No. 312 of 2022 3. Brief facts leading rise to filing of this appeal are as follows: Plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that item No.1 of the suit schedule property is the ancestral property of defendant No.1’s father and item No.2 of the suit schedule property measuring 1.10 acre in Sy.No.40/4 was purchased out of joint family nucleus i.e., income derived from the item No.1 of the suit schedule property. Defendants No.1 and 2 had purchased the 2 acres of land jointly in Sy.No.40. It is contended that item No.2 is the joint family property of plaintiffs and defendant No.1. The plaintiffs and defendants No.1 & 2 are the members of a Hindu joint family and no partition was/is effected. It is stated that defendants No.1 & 2, colluding with each others, sold item No.2 of the suit property to defendant No.3, without the knowledge of the plaintiffs. It is further stated that defendant No.1 had no right to alienate item No.2 of the suit schedule property in favour of defendant No.3. It is contended that the sale deed executed by defendant No.1 in favour of defendant No.3 is not binding on the plaintiffs. The plaintiffs requested defendant No.1 to effect a partition, - 4 - NC: 2025:KHC:9235 RSA No. 312 of 2022 defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. The summons were duly served on defendant No.1, he remained unrepresented and did not file a written statement. Defendants No.2 and 3 filed a written statement contending that item No.1 is the ancestral property of the plaintiffs and defendant No.1. It is further contended that a property measuring 2 acres bearing Sy.No.40 was purchased by defendants No.1 and 2 jointly and defendants No.1 and 2 jointly sold a portion, measuring one acre in said property, in favour of one P.N. Nagaraj and remaining one acre ten gunta was retained by defendant No.1. Defendant No.1 sold item No.2 in favour of defendant No.3 under a registered sale deed dated 23.04.2011 and delivered the possession of item No.2 of the suit schedule property. It is contended that defendant No.3 is a bonafide purchaser for a value without notice. Hence, prays to dismiss the suit. 5. The trial Court, based on the pleadings of the parties framed relevant issues. - 5 - NC: 2025:KHC:9235 RSA No. 312 of 2022 6. The plaintiffs, to substantiate their case, plaintiff No. 1 was examined as PW-1, examined one witness as PW-2 and marked 10 documents as Exs.P.1 to P.10. On the other hand, defendant No.2 was examined as DW-1, examined one witness as DW-2 and marked 23 documents as Exs.D.1 to D.23. 7. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, decreed the suit in part, insofar as item No.1 of the suit schedule property and dismissed the suit, insofar as item No.2 of the suit schedule property, is concerned. It is declared that the plaintiffs and defendant No.1 are entitled to 1/3rd share in item No.1 of the suit schedule property. The plaintiffs aggrieved by the judgment and preliminary decree passed by the trial Court, dismissing the suit regarding item No.2, filed an appeal in R.A.No.18/2017 on the file of Senior Civil Judge and JMFC, Hiriyur. The First Appellate Court, on reassessment of oral and documentary evidence dismissed the appeal vide judgment dated 09.11.2020 and confirmed the judgment and decree passed by the trial Court. - 6 - NC: 2025:KHC:9235 RSA No. 312 of 2022 Plaintiffs aggrieved by the impugned judgments, filed this regular second appeal. 8. Heard the arguments of the learned counsel for the plaintiffs. 9. Learned counsel for the plaintiffs submits that item No.2 of the suit schedule property was purchased by defendant No.1 out of the joint family nucleus, derived from item No.1 of the suit schedule property. He submits that item No.2 is the joint family property of plaintiffs and defendant No.1. The plaintiffs are entitled to a share in item No.2 of the suit schedule property. He submits that a portion of suit survey No.40 was sold by defendant No.1 in favour of one Sri. P.N. Nagaraja, said sale was for family and legal necessity and the sale consideration was utilized for the family necessity. He further submits that the sale deed executed by defendant No.1 in favour of defendant No.3 in respect of item No.2 of the suit schedule property is not binding on the plaintiffs share. Hence, he submits that the impugned judgments passed by the Courts below - 7 - NC: 2025:KHC:9235 RSA No. 312 of 2022 are arbitrary and erroneous. Therefore, on these grounds, he prays to allow the appeal. 10. Perused the records and considered the submissions of the learned counsel for the parties. The instant appeal is with respect to item No.2 of the suit schedule property. 11. It is the case of the plaintiffs that item No.2 of the suit schedule property was purchased out of the income derived from item No.1 of the suit schedule property. To establish that item No.2 was purchased out of the income derived from item No.1, the plaintiffs have not produced any records to show, what was the income that defendant No.1 was getting out of item No.1 of the suit schedule property. Further, during the cross-examination of PW-1, PW-1 has stated that plaintiffs have contributed to purchase item No.2 of the suit schedule properties. Plaintiffs have taken inconsistent stand in the plaint and evidence. At one stretch, the plaintiff contends that item No.2 was purchased out of the income derived from item - 8 - NC: 2025:KHC:9235 RSA No. 312 of 2022 No.1 and in the evidence plaintiffs contended that they have contributed to purchase item No.2 of the suit schedule property. 12. As on the date of purchasing item No.2 of the suit schedule properties, the plaintiffs were minors and there is no question of contributing to purchase item No.2 of the suit schedule property by minors. Further, defendant No.1 and 2 have jointly sold a portion of land bearing Sy.No.40/4 measuring one acre in favour of one P.N. Nagaraj. If at all, if the said item No.2 is the joint family property of defendant No.1 and the plaintiffs, the plaintiffs could also challenge the registered sale executed in favour of P.N. Nagaraj. The plaintiffs did not challenge the registered sale deed executed by defendants No.1 and 2 in favour of P.N.Nagaraj. The plaintiffs have challenged only the registered sale deed executed by defendant No.1 in favour of defendant No.3. Further, the suit filed in respect of an alienated property i.e., item No.2 is not maintainable in view of the law laid down by the coordinate Bench of - 9 - NC: 2025:KHC:9235 RSA No. 312 of 2022 this Court in the case of Sri. Tukaram Vs. Sri. Sambhaji & Ors. reported in ILR 1998 KAR 681. The coordinate Bench of this Court has held that the suit filed by the plaintiff, without including all the joint family properties, which prejudices the rights of the alienee, who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. Where a suit was filed only regarding the property which has been alienated. 13. Admittedly, in the instant case, the plaintiffs have not included the portion of land in Sy.No.40/4, which was sold to P.N. Nagaraj. Hence, the suit regarding item No.2 of the suit schedule property is not maintainable. 14. It is settled law that in a suit for partition and separate possession the initial burden is always on the plaintiff to establish the nature of the suit schedule properties. Once, the plaintiff discharges the burden, the burden shifts upon the defendant to establish that the - 10 - NC: 2025:KHC:9235 RSA No. 312 of 2022 properties were purchased out of his own earnings. The said view is supported by the judgment of the Hon’ble Apex Court in the case of Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade and Ors. reported in AIR 2007 SC 218. 15. Admittedly, the plaintiffs failed to establish that the family possessed a sufficient nucleus for purchasing item No.2 of the suit schedule property. The trial Court was justified in recording the finding that the plaintiffs have failed to prove that item No.2 was purchased out of the joint family nucleus and rightly dismissed the suit regarding item No.2 of the suit schedule property. The First Appellate Court, on reassessment of the oral and documentary evidence, has rightly confirmed the judgment and decree passed by the trial Court. Both the Courts below have concurrently recorded the finding of facts against the plaintiffs. Hence, I do not find any error in the impugned judgments. Accordingly, I proceed to pass the following: - 11 - NC: 2025:KHC:9235 RSA No. 312 of 2022 ORDER The appeal is dismissed. The Judgments and the decrees passed by the Courts below are hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, I.A.No.2/2022 does not survive for consideration, and is accordingly, disposed of. Sd/- ( ASHOK S.KINAGI) JUDGE BVK List No.: 1 Sl No.: 22