- 1 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1116 OF 2020 (PAR) BETWEEN: 1. MUNIYAPPA S/O MUNICHINNAPPA AGED 63 YEARS R/O DODDAKALLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT …APPELLANT (BY SRI. K.S. AMARGOWDA, ADVOCATE) AND: 1. SRI. MUNICHINNAPPA S/O LATE JUNJAPPA AGED ABOUT 87 YEARS 2. SRI. UCHAPPA S/O MUNICHINNAPPA AGED ABOUT 60 YEARS 3. SRI. NARAYANAPPA S/O MUNICHINAPPA AGED ABOUT 57 YEARS No.1 TO 3 ARE R/AT THETTAHALLI VILLAGE KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU DISTRICT. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 4. 4(A) M. CHANNAPPA DEAD BY HIS LRS SMT. PREMA W/O M. CHANNAPPA AGED ABOUT 47 YEARS 4(B) SMT. PADMA D/O M. CHANNAPPA AGED ABOUT 34 YEARS 4(C) SRI. SUNIL S/O M. CHANNAPPA AGED ABOUT 28 YEARS 4(D) SMT. HEMALATHA D/O M. CHANNAPPA AGED ABOUT 26 YEARS No. 4(A) TO 4(D) ARE R/AT NO.511/A, MEGALA STREET KENGERI, BENGALURU. 5. SRI. KRISHNAPPA S/O MUNICHANNAPPA AGED ABOUT 55 YEARS R/O KUMBAR STREET MALUR TOWN, MALUR KOLAR DISTRICT. 6. SMT. LAKSHMIDEVAMMA D/O MUNICHANNAPPA AGED ABOUT 52 YEARS R/O DODDA KALLAHALLI VILLAGE MATHI HOBLI, MALUR TALUK KOLAR DISTRICT 7. SMT. KEMPAMMA W/O MUNICHANNAPPA AGED ABOUT 80 YEARS - 3 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 8. LAKSHMAMMA W/O HUCHAPPA AGED ABOUT 52 YEARS No. 7 AND 8 ARE R/AT TIETTAHALLI VILLAGE KENGERI HOBLI BENGALURU SOUTH TALUK BENGALURU DISTRICT. 9. AKKACHAMMA W/O MUNIYAPPA 60 YEARS R/O DODDAKALLAHALLI VILLAGE MASTHI HOBLI, MALUR TALUK KOLAR DISTRICT. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.01.2020 PASSED IN RA.NO.113/2016 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KOLAR. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.06.2016 PASSED IN O.S.NO.48/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR THIS APPEAL, COMING ON FOR ORDERS, 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 14.01.2020 passed in R.A.No.113/2016, by the learned I Additional District Judge, Kolar, confirming the judgment and decree - 4 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 dated 13.06.2016 passed in O.S.No.48/2011 by the learned Senior Civil Judge and JMFC, Malur. 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 the partition and the separate possession of 1/6th share in the suit schedule properties. It is the case of the plaintiff that one Munichanappa was the propositus of the joint family of the plaintiff and the defendants, and defendant No.7 is the wife of Munichannappa. Defendant Nos.2 to 6 are the brothers and sisters of the plaintiff. Defendant No.8 is the wife of defendant No.2, and defendant No.9 is the plaintiff’s wife. - 5 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 4. It is the case of the plaintiff that the suit schedule properties are the ancestral and joint family properties. Defendant No.1 - The plaintiff’s father, had acquired some of the properties as ancestral and some on behalf of the joint family. Defendant Nos.2 to 6 on account of defendant No.1’s advanced age, though agreed to divide the property equally, while registering the partition, taking advantage of the fact that the plaintiff is illiterate, seems to have been allotted the valuable properties to defendant Nos.2 to 6 and less valuable property in favour of the plaintiff. Further it is contended that by playing fraud and misrepresentation, the defendants included the individual properties of the plaintiff, which belongs to his wife, and registered the partition deed. When the plaintiff came to know about the said fact, he requested the defendants to re-open the partition, but the defendants refused to re-open the partition. Therefore, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Hence, this suit. - 6 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 5. Defendant No.2 filed a written statement contending that the suit filed by the plaintiff is not maintainable either under law or on facts and denied the plaint averments. It is contended that except the suit item No.III.4, all other properties mentioned in the suit schedule properties were the joint family and ancestral properties. On 03.06.2003, all the joint family members got partitioned the suit schedule properties. The suit schedule III.4 was not included since the said property was the self-acquired property of defendant No.2, as the same was purchased by father-in-law of defendant No.2, under a registered sale deed dated 19.4.1933, and it was given as arishina kumkuma Sridhana to his daughter Lakshmamma. The entire sale consideration amount was paid by the father-in-law of defendant No.2 and the said property was registered in the name of defendant No.2. Therefore, the property purchased by defendant No.2 and suit item III.4 is in possession and enjoyment of defendant No.2 and his wife. Further, the father-in-law of defendant No.2 has demanded to execute the said item in his - 7 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 daughter’s name. Accordingly, he executed the registered gift deed dated 04.01.2003. Based on the registered gift deed, Lakshmamma’s name was entered into the revenue records. As per the partition deed dated 03.06.2003, suit items were allotted to all the members of the joint family. As there was already a partition between the plaintiff and the defendants as of the date of filing of the suit, the suit schedule properties were not joint and ancestral properties of the plaintiff and the defendants. Hence, prays to dismiss the suit. 6. Defendant Nos.4(a) to (d) filed a written statement admitting the relationship between the parties and reiterated the written statement averments filed by defendant No.2 and contended that there was a partition effected between the plaintiff and defendants on 03.06.2003 and it was registered. Hence, prays to dismiss the suit. 7. Defendant No.5 filed a written statement denying the averments made in the plaint and reiterated - 8 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 the written statement filed by defendant No.2 and prays to dismiss the suit. 8. Defendant No.6 also filed a written statement and a memo, adopting the written statement filed by defendant No.5, reiterating the written statement filed by defendant No.2 and prays to dismiss the suit. 9. Based on the aforesaid pleadings of the parties, the trial Court framed the issues and additional issues. 10. To substantiate his case, the plaintiff examined himself as PW.1 and marked 82 documents as Exs.P1 to 82. On the other hand, defendant No.2 was examined as DW.1. Defendant No.4(a) was examined as DW.2, defendant No.5 was examined as DW.3, defendant No.9 was examined as DW.4 and one witness was examined as DW.5 and marked 48 documents as Exs.D1 to 48. The trial Court, after recording the evidence and assessing the oral and documentary evidence, dismissed the suit of the plaintiff vide judgment dated 13.06.2016. The plaintiff, aggrieved by the judgment and preliminary decree passed - 9 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 in O.S.No.48/2011, preferred an appeal in R.A.No.113/2016, on the file of learned I Additional District and Sessions Judge, Kolar. The first Appellate Court, on re-assessment of oral and documentary evidence, dismissed the appeal vide judgment dated 14.01.2020. 11. The plaintiff, aggrieved by the impugned judgments passed by the Courts below, filed this regular second appeal. 12. Heard the arguments of the learned counsel for the plaintiff. 13. Learned counsel for the plaintiff submits that the plaintiff and the defendants are the members of a Hindu joint family and the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants, and no partition is effected as alleged by the defendants, on 03.06.2003. The defendants have played fraud on the plaintiff and executed a registered partition deed dated 03.06.2003. He further submits that under - 10 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 the partition deed, the plaintiff has a lesser share, and the defendants have more shares. Hence, said partition is unequal and sought for re-division of the properties. The Courts below have committed an error in passing the impugned judgments. Hence, on these grounds, prays to allow the appeal. 14. Perused the records and considered the submissions of the learned counsel for the plaintiff. 15. There is no dispute regarding the relationship between the parties in the suit. It is the case of the plaintiff that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants, no partition is effected between the plaintiff and defendants. The defendants, by playing fraud, executed the registered partition deed dated 03.06.2003, and said partition, effected between the parties is unequal. Further, to substantiate his case, the plaintiff has produced the documents, marked as, Exs.P1 to 33 are the RTC extracts of the suit schedule properties, Exs.P34 and - 11 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 35 are the certified copy of the gift deeds, Ex.P36 is the registered partition deed, which discloses that there was a partition between the plaintiff and the defendants. Exs.P37 to 39 are the certified copy of the registered sale deeds, Ex.P40 is the MR extract, Ex.P41 is the certified copy of the plaint in O.S.No.226/2011, wherein the plaintiff’s wife had filed a suit for declaration of title and permanent injunction in respect of lands bearing Sy.Nos.7/2A, 7/2B, Sy.No.32 and Sy.No.18/1. Exs.P42 and 43 are the certified copy of the gift deeds, and Exs.P44 to 81 are the RTC extracts, Ex.P82 is the gazette notification. 16. During the cross-examination of PW.1, he admits that after going through the contents of the partition deed, he has affixed his signature on the partition deed, and he also admitted that at the time of partition, he did not find any fraud played by the defendants. The trial Court has reproduced the admission of PW.1’s cross-examination in para 22 of the judgment of the trial - 12 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 Court. Admittedly, there is a registered instrument which was executed on 03.06.2003. The plaintiff did not challenge the said registered partition deed for seven years from the execution of the registered partition deed. The plaintiff executed a gift deed in favour of his wife, regarding the properties shown in O.S.No.226/2011, and the suit was filed on 30.11.2004. 17. Further, to establish that the defendants have played fraud, the plaintiff, except examining himself, has not examined any attesting witness to the registered partition deed. The plaintiff has failed to establish that the defendants, by playing fraud, executed the registered partition deed. Thus, the plaintiff has failed to establish that the family of the plaintiff and the defendants continued to be joint as of the date of the suit and the suit schedule properties are the ancestral and joint family properties and failed to establish that the registered partition deed is illegal and not acted upon. - 13 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 18. From the perusal of the records produced by the parties, it discloses that based on the registered partition deed dated 03.06.2003, the names of the respective parties were entered in the revenue records, and the parties are enjoying their respective shares and are paying land revenue of the suit schedule properties. The trial Court was justified in dismissing the suit of the plaintiff on the ground that there was already a prior partition between the plaintiff and the defendants, and as of the date of the suit, the properties were not available for partition, and there was a severance of status. The first Appellate Court, on reassessing oral and documentary evidence, held that defendant No.1 was the kartha of the family and had executed a registered partition deed dated 03.06.2003. The joint family properties were disrupted, and it was divided equally. The plaintiff has affixed his signature on the registered partition deed dated 03.06.2003. It has also recorded a finding that when there was a prior partition between the plaintiff and the defendants, suit filed by the plaintiff for partition and - 14 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 separate possession is not maintainable and dismissed the appeal vide judgment dated 14.01.2020. 19. Both the Courts below have concurrently recorded a finding of fact holding that the plaintiff has failed to prove that the suit schedule properties are the joint and ancestral properties of the parties to the suit and recorded a finding that the defendants have proved prior partition between the plaintiff and the defendants and the parties have executed a registered partition deed dated 03.06.2003. There was a severance of status and rightly dismissed the appeal. Both the Courts below were justified in passing the impugned judgments. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal. 20. Accordingly, I proceed to pass the following: ORDER i. The appeal is dismissed; - 15 - NC: 2025:KHC:10007 RSA No. 1116 of 2020 ii. The judgments and decrees passed by the Courts below are hereby confirmed. No order as to the costs. SD/- (ASHOK S.KINAGI) JUDGE sks