- 1 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1147 OF 2016 (PAR) BETWEEN: 1. SMT. GANGAMMA W/O LATE MALLAPPA AGED ABOUT 70 YEARS 2. LINGAPPA S/O LATE MALLAPPA, AGED ABOUT 52 YEARS 3. SMT. RATHNAMMA W/O LATE SIDDALINGAPPA AGED ABOUT 60 YEARS 4. CHANDRASHEKHAR S/O LATE SIDDALINGAPPA AGED ABOUT 40 YEARS 5. THIPPESWAMY S/O LATE SIDDALINGAPPA AGED ABOUT 35 YEARS 6. RAJANNA S/O LATE SIDDALINGAPPA AGED 30 YEARS ALL ARE RESIDENT OF HARENAHALLY NITTUR HOBLI, GUBBI TALUK TUMKUR DISTRICT-572 216. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 7. SMT. MALLAMMA W/O LATE CHANDRAPPA AGED ABOUT 55 YEARS RESIDENT OF THIRTHAPURA KANDIKERE HOBLI CHIKKNAYAKANAHALLY TALUK TUMKUR DISTRICT-572 214. …APPELLANTS (BY SRI. A.V.GANGADHARAPPA, ADVOCATE) AND: 1. MAHADEVAPPA S/O LATE LINGAPPA SINCE DEAD BY LEGAL REPRESENTATIVES SMT.SHANTHAMMA W/O LATE MAHADEVAPPA AGED ABOUT 66 YEARS AGRICULTURIST 2. NAGARAJU S/O LATE MAHADEVAPPA AGED ABOUT 50 YEARS 3. NEELAKANTAPPA S/O LATE MAHADEVAPPA AGED ABOUT 48 YEARS 4. VISHWESHVARAPPA S/O LATE MAHADEVAPPA AGED ABOUT 39 YEARS ALL ARE RESIDENT OF HARENAHALLY NITTUR HOBLI, GUBBI TALUK TUMKUR DISTRICT-572 216. 5. SMT. JAYASHEELA D/O LATE MAHADEVAPPA AGED ABOUT 45 YEARS - 3 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 RESIDENT OF GOWDANAHALLY JAVANAGONDANAHALLY HOBLI HIRIYURU TALUK CHITRADURGA DISTRICT-572 143. …RESPONDENTS (BY SRI. H.V. BHANUPRAKASH, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.02.2016 PASSED IN RA NO.34/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND THE JUDGMENT AND DECREE DATED 06.07.2010 PASSED IN OS NO.121/2003 ON THE FILE OF THE CIVIL JUDGE, GUBBI. THIS APPEAL, COMING ON FOR FINAL HEARING, 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 22.02.2016 passed in R.A.No.34/2010 by the Senior Civil Judge at Gubbi, confirming the judgment and decree passed in O.S.No.121/2003 vide judgment and preliminary decree dated 6.7.2010 by the Principal Civil Judge, Gubbi. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The - 4 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 appellants were the defendants, and respondents were the legal representatives of the deceased original plaintiff. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession of his 1/4th share in the suit schedule properties, contending that the plaintiff and the defendants are the members of the Hindu joint family and the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants. The plaintiff demanded partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arises for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.1. The defendants filed a written statement admitting the relationship of the plaintiff with the defendants. It is contended that the suit schedule properties are the ancestral joint family properties of one - 5 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 Lingappa, who was none other than the grandfather of defendant No.2. After his demise, his sons Mallappa, Nanjanna, Doddabasappa, Mahadevappa, Siddalingappa and Chandrappa have divided the suit schedule properties orally about several decades back, and they are enjoying the properties. It is contended that, in the said oral partition, the land in Sy.No.3/1, measuring 3 acres, 9 guntas fell to the share of Nanjanna, and after the death of Mallappa, Siddalingappa and Chandrappa, the oral partition was reduced into writing in 1990. The document is styled as palu patti. Based on the partition, revenue records were transferred in the name of the respective parties. Hence, the suit filed for partition and separate possession is not maintainable, and accordingly, prays to dismiss the suit. 3.2. The trial Court, based on the pleadings of the parties, framed the following issues: “1. Whether the plaintiff proves that suit properties are ancestral properties of himself and defendants? 2. Whether defendants prove that there was partition in the joint family properties in 1990 and accordingly they are in possession of their respective shares? - 6 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 3. Whether the plaintiff is entitled for the 1/4th share in suit properties? 4. What Order or Decree ” 3.3. The plaintiff, to substantiate his case, examined himself as PW.1 and marked 17 documents as Exhibits P.1 to P.17. On the other hand, the defendants examined three witnesses as DW.1 to DW.3, and marked 35 documents as exhibits D.1 to D.35. 3.4. The trial Court, after recording the evidence, hearing on both sides, and on assessment of oral, and documentary evidence, answered issue Nos.1 and 3 in the affirmative, issue No.2 in the negative, and issue No.4 as per the final order. The suit of the plaintiff was decreed. The defendants, aggrieved by the judgment and preliminary decree passed in O.S.No.121/2003, preferred an appeal in R.A.No.34/2010. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. - 7 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 “1) Whether the appellants have made out any ground to permit them to produce additional documentary evidence as sought for? 2) Whether the impugned judgment and decree requires interference at the hands of this Court? 3) What order ?” 3.5. The appellate Court on re-assessment of oral and documentary evidence, answered point Nos. 1 and 2 in the negative and point No.3 as per the final order and dismissed the appeal vide judgment dated 22.02.2016. The defendants, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the learned counsel for the defendants, and the legal representatives of the plaintiff. 5. Learned counsel for the defendants submits that there was a oral partition between the parties, and subsequently, the same was reduced into writing in 1990, and the said document is styled as palu patti. Based on the said palu patti, the defendants obtained a loan by - 8 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 depositing the original palu patti, before the Primary Co- operative Agricultural and Rural Development Bank, Gubbi. The defendants have filed an application before the trial Court, to call for the original palu patti from the Co-operative Bank. The trial Court rejected the said application. He submits that the defendants took back the original palu patti, and filed an application under Order XLI Rule 27 of the CPC before the first Appellate Court. The first Appellate Court, without assigning any reasons has rejected the application. He submits that the palu patti goes to the root of the defendants defense. The first Appellate Court rejected the application for the production of additional evidence. No reasons have been assigned in rejecting the said application. Hence, on these grounds, he prays to remit the matter to the first Appellate Court for reconsideration of an application for the production of additional evidence by assigning reasons. Hence, on these grounds, he prays to allow the appeal. - 9 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 6. Per contra, the learned counsel for the legal representatives of the plaintiff supported the impugned judgments, and submits that the palu patti is an unregistered document, and inadmissible in evidence. Even if the said palu patti is considered, it has no bearing on the merits of the case. The appellate Court has rightly rejected the application for the production of additional evidence and dismissed the appeal. Hence, he submits that the impugned judgments passed by the Court below are just and proper and do not call for any interference. Accordingly, prays to dismiss the appeal. 7. This Court admitted the appeal on 15.3.2019 to consider the following substantial questions of law : “1. When the defendants had specifically set up prior partition in 1990 under a memorandum of partition and the sub-divisions were effected in the properties in the revenue records, whether the courts below were right in rejecting the defendants’ application to summon the said document from the Primary Co-operative Agricultural and Rural - 10 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 Development Bank, Gubbi, where the document was deposited for borrowing the loan? 2. On rejecting the defendants’ application to summon the memorandum of partition pleaded by them, whether the courts below were right in holding that the said memorandum of partition was not produced and therefore, the defendants’ case cannot be accepted?” Re. Substantial Question of Law No.1 : 8. The plaintiff, to prove his case, examined himself as PW.1. He deposed that, one Lingappa was the original propositus. He had two wives, the first wife was Nanjamma and the second wife was Mallamma. Mallappa and Nanjanna were born to Lingappa through Nanjamma. Nanjanna died as a bachelor. Defendant No.1 is the wife of Mallappa, and defendant No.2 is the son of Mallappa. Second wife of Lingappa, had four children viz., Doddabasappa, Mahadevappa, Siddalingappa and Chandrappa. Doddabasappa died as a bachelor. Siddalingappa died leaving behind defendants No.3 to 6 as his legal heirs. Chandrappa died, leaving behind defendant No.7 as his sole legal representative. The suit - 11 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 schedule properties are the ancestral and joint family properties of the plaintiff and the defendants, and no partition is effected between the plaintiff and defendants, and they are the members of Hindu undivided joint family. 9. To prove that, the suit schedule properties were the ancestral joint family properties, the plaintiff produced the documents marked as exhibits P.1 to P.17. On the other hand, defendant No.1 was examined as DW.1. He deposed that there was an oral partition much before 1990. The said oral partition was reduced to writing in 1990, and the said document is styled as palu patti. Based on the said palu patti, names of the defendants were entered in the revenue records to the extent noted in palu patti. It is contended that, the defendants have obtained a loan by producing the original palu patti before the Primary Co-operative Agricultural and Rural Development Bank, Gubbi. The said palu patti was deposited with the said Co- operative Bank. The defendants filed an application to call for the original palu patti from the co-operative Bank. The trial Court rejected the said application. After the disposal of the suit, the defendants have taken back the original palu patti and the said original palu patti was produced by the defendants - 12 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 before first Appellate Court along with an application under Order XLI Rule 27 of CPC. The legal representatives of the plaintiff have objected to the said application for the production of additional evidence. 10. From the perusal of the judgment passed by the First Appellate Court, it is seen that the First Appellate Court has not assigned any reasons for rejecting an application for the production of additional evidence. The First Appellate Court, without application of mind, rejected the application for the production of additional evidence. Further, the first Appellate Court, has not examined whether the defendants have fulfilled all the requirements of Order XLI Rule 27 of CPC. Hence, on this ground alone, the impugned judgment is liable to be set aside. 11. In view of the above discussion, I answer substantial question of law No.1 in the negative as the matter requires reconsideration by the First Appellate Court. In view of the same, substantial question of law No.2 does not arise for consideration. In view of the above discussion, I proceed to pass the following order : - 13 - NC: 2025:KHC:11340 RSA No. 1147 of 2016 ORDER 1. The Appeal is allowed; 2. The judgment and decree passed in R.A.No.34/2010 dated 22.2.2016 on the file of learned Senior Civil Judge, Gubbi, is set aside; 3. The appeal in R.A.No.34/2010 is restored; 4. The appellate Court is directed to consider the application for the production of additional evidence, and pass a judgment in accordance with law after assigning reasons; 5. All the contentions of the parties are kept open; 6. The parties are directed to appear before the first appellate Court on 28.04.2025 without awaiting any further notice. The office is directed to remit the records to the firstAppellate Court. Sd/- (ASHOK S.KINAGI) JUDGE rs List No.: 1 Sl No.: 8