- 1 - NC: 2025:KHC:16147 RSA No. 733 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 733 OF 2024 (PAR) BETWEEN: 1. SRI SHANMUKHAPPA S/O HANUMANTHAPPA AGED ABOUT 44 YEARS 2. SMT MADUMATHI W/O VIJAYAKUMARA AGED ABOUT 39 YEARS 3. SRI NAVEEN KUMAR S/O HANUMANTHAPPA AGED ABOUT 37 YEARS 4. SMT MAHALAKSHMAMMA W/O SHIVAKUMAR AGED ABOUT 35 YEARS 5. SMT BASAMMA W/O LATE HANUMANTHAPPA AGED ABOUT 62 YEARS ALL ARE RESIDING AT AMBEDKAR COLONY, SHAMANURU VILLAGE DAVANAGERE TALUK - 577 219 DAVANAGERE DISTRICT …APPELLANTS (BY SRI. V B SIDDARAMAIAH, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16147 RSA No. 733 of 2024 AND: 1. SRI REVANNAPPA S/O DURGAPPA AGED ABOUT 59 YEARS OCCUPATION AGRICULTURE RESIDING AT SHAMANURU VILLAGE DAVANAGERE TALUK - 577 219 DAVANAGERE DISTRICT 2. SMT KENCHAMMA W/O LATE KARIYAPPA AGED 66 YEARS, OCCUPATION: AGRICULTURE 3. SMT MANJAMMA W/O LATE THIPPESHI AGED 51 YEARS, OCCUPATION AGRICULTURE R2 AND R3 ARE R/AT NAGANURU VILLAGE, DAVANAGERE TALUK - 577 219 DAVANAGERE DISTRICT …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.01.2024 PASSED IN RA NO.150/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.07.2022 PASSED IN OS NO.597/2013 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE, AND JMFC, DAVANAGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:16147 RSA No. 733 of 2024 ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 20.01.2024 passed in R.A.NO.150/2022 by the Principal Senior Civil Judge and CJM, Davangere, and the judgment and decree dated 25.07.2022 passed in O.S.NO.597/2013 by the learned III Additional Civil Judge, Davangere. 2. For convenience, the 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 one Durgappa S/o Mariyappa was the propositus of the family of the plaintiffs and defendants No.1 and 2. He had six children. The suit schedule - 4 - NC: 2025:KHC:16147 RSA No. 733 of 2024 property was purchased by Durgappa under a registered sale deed dated 24.11.1948 from the earnings of the joint family. After the demise of Durgappa, defendants No.1 and 2 by taking undue advantage of the Katha in their names, sold the portion of the suit schedule property in favour of defendants No.3 and 4 under a registered sale deed dated 27.07.2006. In 2013, plaintiffs demanded partition, but the defendant Nos.1 and 2 denied 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 defendants No.1 and 2 appeared through counsel, but have not filed a written statement. 5. Defendants No.3 and 4 filed a written statement and additional written statement denying the averments made in the plaint. It is contended that the suit filed by the plaintiffs is not maintainable and that the plaintiffs are not entitled to a share in the suit schedule property. It is contended that defendants No.1 and 2, being the Kartha of - 5 - NC: 2025:KHC:16147 RSA No. 733 of 2024 the family, have sold the portion of the suit schedule property in favour of defendant Nos.3 and 4 for family and legal necessities. It is contended that the sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 is binding on the plaintiffs. It is also contended that the sale deed was executed on 27.07.2006, and the suit was filed in 2013. Hence, the suit filed by the plaintiffs is barred by limitation. It is contended that a mere suit for partition and separate possession without challenging the registered sale deed, is not maintainable. It is also contended that the suit for partial partition is not maintainable as the plaintiffs have not included the house property. It is also contended that the suit is bad for non joinder of necessary parties. Hence, on these grounds, prays to dismiss the suit against defendant Nos.3 and 4. 6. The Trial Court, based on the pleadings of the parties, framed the relevant issues. - 6 - NC: 2025:KHC:16147 RSA No. 733 of 2024 7. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW1, and marked 7 documents as Ex.P1 to Ex.P7. On the other hand, defendant No.4 was examined as DW1, examined one witness as DW2, and marked 3 documents as Ex.D1 to Ex.D3. The trial Court, on assessing verbal, and documentary evidence, dismissed the suit of the plaintiffs vide judgment dated 25.07.2022. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.597/2013 preferred an appeal in R.A.No.150/2022 on the file of learned Principal Senior Civil Judge and CJM, Davangere. The first appellate Court, on re-assessing verbal and documentary evidence, dismissed the appeal, vide judgment dated 20.01.2024. The plaintiffs, aggrieved by the impugned judgments, filed this Regular Second Appeal. 8. Heard the arguments of the learned counsel for the plaintiffs. - 7 - NC: 2025:KHC:16147 RSA No. 733 of 2024 9. Learned counsel for the plaintiffs submits that, the Courts below have committed an error in dismissing the plaintiffs' suit. He submits that one Durgappa was the original propositus. He purchased the suit schedule land in 1948. After his demise, the plaintiffs and defendants No.1 and 2 succeeded to the suit schedule property. He submits that defendant Nos.1 and 2 alone had no right to sell the portion in suit schedule property in favour of defendant Nos.3 and 4. The sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 is not binding on the plaintiffs' share. Hence, he submits that the impugned judgments passed by the Courts below are arbitrary, and erroneous. Hence, on these grounds, prays to allow the appeal. 10. Perused the records, and considered the submissions of the learned counsel for the plaintiffs. 11. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW1. He reiterated the plaint averments in the examination-in-chief, and to prove that - 8 - NC: 2025:KHC:16147 RSA No. 733 of 2024 original propositus i.e., Durgapa, purchased the suit schedule property, produced the documents marked as Ex.P1 to Ex.P7. 12. Defendant Nos.3 and 4 contended that the defendant Nos.1 and 2 are the kartha of the family, and they sold the portion of the suit schedule property in favour of the defendant Nos.3 and 4 for family and legal necessity. PW1 has admitted during cross examination that the plaintiffs have not included the house property in the suit schedule. Also, admitted that, Defendants No.3 and 4 are in possession of the suit properties from the date of purchase of property. 13. In rebuttal, defendant No.4 was examined as DW1. She has reiterated the written statement averments in the examination-in-chief. The defendants have produced the records at Ex.D1 to D3 to establish a partition between the defendants during the lifetime of Durgappa, and that the suit schedule property fell to the share of defendants No.1 and 2. - 9 - NC: 2025:KHC:16147 RSA No. 733 of 2024 14. Defendants No.1 and 2 sold the suit schedule property in favour of defendant Nos.3 and 4 under the registered sale deed dated 27.07.2006. The plaintiffs knew about the registered sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4. The plaintiffs have not taken any steps to challenge the registered sale deed dated 27.07.2006 executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 within 3 years from the date of the registration of a sale deed. Hence, as per Section 3 of the Transfer of Property Act, 1882, if the instrument is registered, registration of document gives notice to world about its execution. Despite having knowledge regarding the execution of a registered sale deed dated 27.07.2006, the plaintiffs did not challenge the registered sale deed executed by defendants No.1 and 2 in favour of defendants No.3 and 4 and the same remained unchallenged. However, the plaintiffs are entitled to a share in the remaining 2 acres in the suit land, and the house property. But, the plaintiffs - 10 - NC: 2025:KHC:16147 RSA No. 733 of 2024 have not included the house in the suit schedule property. Hence, the suit for partial partition is not maintainable. 15. In view of the law laid down by the Hon'ble Apex Court in the case of S.Satnam Singh and others V/s Surnder Kumar and another reported in AIR 2009 SC 1089. "Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto." - 11 - NC: 2025:KHC:16147 RSA No. 733 of 2024 16. Hence, the suit filed by the plaintiff for partial partition is not maintainable. Accordingly, both the Courts below were justified in dismissing the suit of the plaintiff on the ground that the suit for partial partition is not maintainable, and also, the plaintiff has not challenged the registered sale deed executed by defendants No.1 and 2 in favour of defendant Nos.3 and 4 well within time. Both the Courts below have concurrently recorded a finding of facts against the plaintiffs. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal. Accordingly, I proceed to pass the following order: ORDER i) The appeal is dismissed. ii) The impugned judgments and decrees passed by the Courts below are hereby confirmed. iii) No order as to the costs. - 12 - NC: 2025:KHC:16147 RSA No. 733 of 2024 iv) However, the liberty is reserved to the plaintiff, to file a fresh suit for partition and separate possession excluding the property sold in favour of defendant Nos.3 and 4, if so advice. v) In view of the dismissal of the appeal, IA No.1/2024, does not survive for consideration. Accordingly, IA No.1/2024, is disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 20