- 1 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO.1060 OF 2008 (PAR) BETWEEN: SRI M MALLIKARJUNA SHASTRY, S/O.LATE CHIDAMBARA SHASTRY, AGED ABOUT 51 YEARS, R/AT.RENUKAPURA VILLAGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT. …APPELLANT (BY SRI K M PRAKASH, ADVOCATE) AND: 1. J RAMAKRISHNA, S/O.LATE CHIDAMBARA SHASTRY, AGED ABOUT 45 YEARS, R/AT.NO.1097/A, NGO S COLONY, K T ROAD, TIRUPATHI,A.P. 2. SAI BABA, S/O.LATE CHIDAMBARA SHASTRY, AGED ABOUT 50 YEARS, R/ATA E TELEPHONE, OPP:WATER TANK, VEERA REDDY COLONY, BOD UPPAL, HYDERABAD, A.P. 3. J NAGARAJ, S/O.LATE CHIDAMBA SHASTRY, AGED ABOUT 49 YEARS, R/AT.S K P TEMPLE, PADMIDI, ANANTAPURA DISTRICT, A.P. Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 4. K RAMACHANDRA SHASTRY, S/O.LATE K SUBBA RAO, AGED ABOUT 78 YEARS, FORT, RAYADURGA, ANANTHAPURA DIST, A.P. 5. J HANUMANTH SHASTRY, S/O.LATE K SUBBA RAO, AGED ABOUT 78 YEARS, R/AT.OPP PROVIDENT FUND OFFICE, RAILWAY STATION ROAD, CUDDAPAH, A.P. 6. J SATHYANARAYANA SHASTRY, S/O.LATE K SUBBA RAO, AGED ABOUT 75 YEARS, R/AT CHITRANAYANAKANALLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 7. J MADHAVA SHARMA, S/O.LATE K SUBBA RAO, AGED ABOUT 70 YEARS, R/AT RENUKAPURA VILLAGE, CHELLAKERE TALUK, CHITRADURGA DISTRICT. 8. J SRINATH, S/O.LATE J SHARMA RAO, AGED ABOUT 34 YEARS, R/AT.DIXIT BLOCK,CHALLAKERE TALUK, CHITRADURGA DISTRICT. 9. J ANAND, S/O.LATE SHAYAM RAO, AGED ABOUT 35 YEARS, R/AT DIXIT BLOCK, CHALLAKERE TALUK, CHITRADURGA DISTRICT. 10. J HEMALATHA, W/O.LATE SHAYAM RAO, - 3 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 AGED ABOUT 60 YEARS, DIXIT BLOCK, CHALLAKERE, CHITRADURGA DISTRICT. 11. J SREEKANTAIAH, S/O.LATE K SUBBA RAO, AGED ABOUT 64 YEARS, R/AT.BHAVANINAGAR, GOLLAPUDI, VIJAYAWADA, AP. 12. J GAYATHRAMMA, W/O.T S VENKANNAIAH, AGED ABOUT 53 YEARS, R/AT.THALAKCHALLAKERE TALUK, CHITRADURGA DISTRICT. 13. P SRINIVASA GUPTA, S/O.SANJEEVA GUPTA, AGED ABOUT 61 YEARS, R/AT.VASAVI COLONY, CHALLAKERE, CHITRADURGA DISTRICT. 14. SRI G S NARASAPPA, S/O G S NARASAPPA, AGED ABOUT 73 YEARS, R/AT RENUKAPURA VILLAGE, THALAK HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT. …RESPONDENTS (R1, R3 TO R13 - NOTICE SERVED, APPEAL DISMISSED AGAINST R2 V/O/DT 05.06.2013, APPEAL IS DISMISSED AGAINST R14 AS ABATED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DTD 14.11.07 PASSED IN R.A.NO 59/06 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.8.06 PASSED IN OS 251/01 ON THE FILE OF THE CIVIL JUDGE, (JR.DN), & JMFC., MOLAKALMURU. - 4 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is arising from the judgment and decree passed in O.S.No.251/2001 on the file of Civil Judge (Junior Division), Molakalmuru and also the judgment and decree passed in R.A.No.59/2006 on the file of Civil Judge (Senior Division), Challakere. 2. The suit is one for partition and separate possession of plaintiff’s 1/24th share in 19 tamarind trees in Survey No.98/1 measuring 5 acres 18 guntas situated in Renukapura Village, Challakere Taluk. The suit is decreed. Aggrieved by the judgment and decree, defendant No.14-G.S.Narasappa has filed an appeal in R.A.No.59/2006. The said appeal is allowed. The judgment and decree passed by the Trial Court is set aside and consequently, the suit is dismissed. Aggrieved by the - 5 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 aforementioned judgment and decree, plaintiff is in appeal. 3. Learned counsel appearing for the appellant- plaintiff, taking through the facts of the case, would contend that properties in question i.e., Survey No.98/1 and 19 tamarind trees planted in it originally belonged to one Mr. K. Subba Rao. He had five sons and he effected partition of all the family properties and in the said partition, one of his sons - J. Sathyanarayana Shastry was allotted Survey No.98/1 measuring 5 acres 18 guntas and two other properties. It is his further submission that K. Subba Rao retained 19 tamarind trees for himself and for his wife. It is further recited in the partition deed that after the death of propositors - K. Subba Rao and his wife, 19 tamarind trees have been enjoyed jointly by all his five children. Thus, it is contended by the plaintiff that the tamarind trees are not partitioned and it was agreed that the trees are to be enjoyed jointly. - 6 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 4. The suit is filed on the premise that purchaser of the property from J. Gayathramma who derived right over the property under the registered gift deed dated 17.08.1981 executed by her father J. Sathyanarayana Shastry, claimed exclusive right over the tamarind trees. 5. Defendant No.14 contested the suit on the premise that the tamarind trees are located in Survey No.98/1 and since Survey No.98/1 is allotted to the share of J. Sathyanarayana Shastry, the purchaser from J. Gayathramma acquired absolute right over 19 tamarind trees. 6. The Trial Court accepted the plaintiff's contentions and concluded that the tamarind trees were kept jointly by propositus - K. Subba Rao and they are not partitioned, as such, J. Sathyanarayana Shastry did not acquire absolute title over 19 tamarind trees and granted decree for partition. - 7 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 7. The First Appellate Court accepted the contention of defendant No.14-appellant before it and concluded that 19 tamarind trees exclusively belonged to defendant No.14 who purchased property from J. Gayathramma who in turn had acquired property under the registered gift deed from her father J. Sathyanarayana Shastry. 8. This appeal was admitted on 20.07.2016 to answer the following substantial question of law, "Whether the judgment and decree of the first appellate court is perverse in dismissing the suit of the appellant-plaintiff even while holding that the fruits from 19 tamarind trees have to be shared divided by all the sharers and which are hence not liable for partition or subsequent alienation?" 9. Learned counsel appearing for the appellant would submit that in the year 1983, J. Gayathramma claimed right over property under the registered gift deed executed by her father J. Sathyanarayana Shastry and - 8 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 filed suit in O.S.No.11/1983 on the file of the Civil Judge, Chitradurga. Said suit was filed against Chidambara Shastry and J. Madhava Sharma, both children of propositus - K. Subba Rao. Said suit ended in a compromise. In the settlement arrived at between the parties to the said suit, it is decreed that 19 tamarind trees are the joint properties of five children of propositus K. Subba Rao. 10. It is relevant to notice that the said decree has attained finality. Defendant No.14 claims to have acquired property under the sale deed executed by J. Gayathramma who is plaintiff in O.S.No.11/1983. Since defendant No.14 claims right under J. Gayathramma, he cannot have a larger right than what J. Gayathramma possessed. Since J. Gayathramma is party to decree in O.S.No.11/1983, the decree also binds the purchaser from J. Gayathramma. 11. This being the position, the First Appellate Court could not have held that 19 tamarind trees are exclusive trees of the purchaser-defendant No.14. - 9 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 12. The First Appellate Court did not take into account, the consequence of the decree in O.S.No.11/1983. Even if it is assumed that all 19 tamarind trees were located in Survey No.98/1, the decree in O.S. No.11/1983 does not recognise exclusive right of J. Gayathramma over 19 tamarind trees. The decree, on other hand, recognises right of all 5 children of propositus - K. Subba Rao. 13. In addition to that, the said right is also recognised in the partition deed of 1974 where 19 tamarind trees are kept joint and not partitioned. The partition deed of 1974 also reveals that it was agreed that after the death of propositus - K. Subba Rao and his wife, 19 tamarind trees are to be jointly enjoyed by 5 children of propositus. The First Appellate Court has not noticed these two vital aspects. The First Appellate Court is carried away by the recital in the sale deed without noticing the vendor's title over 19 tamarind trees. - 10 - HC-KAR NC: 2025:KHC:19916 RSA No. 1060 of 2008 14. Since, the suit is filed by grandchildren of propositus, the father of the plaintiff had 1/7th share. The plaintiff will have 1/28th share in the suit trees. 15. For the aforementioned reasons, this Court is of the view that the impugned judgment and decree passed by the First Appellate Court are to be set aside. 16. Hence the following: ORDER (i) The appeal is allowed. (ii) The Judgment and decree dated 14.11.2007 in R.A. No. 59/2006 on the file of the Civil Judge (Senior Division), Challakere are set aside. (iii) Suit in O.S.No.251/2001 on the file of the Civil Judge, Molakalmuru is decreed as prayed for granting 1/28th share to the plaintiff in 19 Tamarind Trees described in the plaint schedule. Sd/- (ANANT RAMANATH HEGDE) JUDGE CR/List No.: 1 Sl No.: 23