- 1 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1371 OF 2017 (PAR) C/W REGULAR SECOND APPEAL NO. 1370 OF 2017 (PAR) SBETWEEN: V. SHEKHARAPPA (ALSO CALLED AS E. SHEKHARAPPA), S/O. LATE. VEERABHADRAPPA, AGED ABOUT 66 YEARS, AGRICULTURIST, R/OF VADDARASIDDAVVANAHALLI, HIREGUNTANURU HOBLI, CHITRADURGA TALUK AND DISTRICT – 577 501 …COMMON APPELLANT (BY SRI. GANGADHARAPPA A.V., ADVOCATE) AND: 1. V. UMAPATHI S/O. LATE. VEERABHADRAPPA, AGED ABOUT 65 YEARS, TEACHER, RESIDENT OF VADDARASIDDAVVANAHALLI, HIREGUNTANURU HOBLI, CHITRADURGA TALUK AND DISTRICT – 577 501 2. SMT. ONKARAMMA W/O. CHANNABASAPPA, AGED ABOUT 68 YEARS, RESIDENT OF NEERTHADI, DAVANAGERE TALUK AND DISTRICT - 577 001 Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 3. SMT. ANNAPOORNAMMA W/O. MURIGAPPA, AGED ABOUT 58 YEARS, RESIDENT OF BASAVANA SHIVANAKERE, BHARAMASAGARA HOBLI, CHITRADURGA TALUK AND DISTRICT - 577 501 4. SMT. SHANTHAMMA W/O. SHANMUKHAPPA, AGED ABOUT 56 YEARS, RESIDENT OF BHANUVALLY, HARIHARA TALUK, DAVANAGERE DISTRICT - 577 601 … COMMON RESPONDENTS (BY SRI. SHIVAKUMARAPPA T.C., ADVOCATE FOR R1 TO 4) RSA NO. 1371 OF 2017 IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 2.11.2012 PASSED IN RA NO.26/2009 ON THE FILE OF THE 1ST ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 20.9.2007 PASSED IN OS NO.183/2000 ON THE FILE OF THE 1ST ADDL. CIVIL JUDGE (JR.DN) AND JMFC, CHITRADURGA. RSA NO. 1370 OF 2017 IS FILED U/S. 100 OF CPC, AGAINST THE JUDGMENT & DECREE DTD:14.09.2010 PASSED IN R.A.NO.84/2007 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE., PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD:20.09.2007 PASSED IN OS.NO.183/2000 ON THE FILE OF THE IIND ADDL. CIVIL JUDGE (JR.DVN) AND JMFC., CHITRADURGA. - 3 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT These two Appeals arise from the judgment and decree dated 02.11.2012 passed in R.A.No.26/2009 by the learned I Additional Senior Civil Judge, Chitradurga, and the judgment and decree dated 14.09.2010 passed in R.A.No.84/2007 by learned II Additional Senior Civil Judge, Chitradurga. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant in RSA 1370/2017 and RSA No.1371/2017 was plaintiff No.1, 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 contended that, - 4 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 the plaintiffs are siblings, D2 is a plaintiff brother, D1 is the father of plaintiff and D3 to D5 are the married sisters of plaintiff. Plaintiff No.2 is under the care of plaintiff No.1 Veerabhadrappa was the kartha and yajamana of the undivided Hindu joint family. The suit schedule properties are the ancestral properties of the plaintiffs and defendants. It is contended that, D1 executed a settlement deed and release deed in favour of D2. The same not binding on the plaintiff. It is contended that no partition is effected between the plaintiffs and defendants. The plaintiffs demanded partition and separate possession, but the defendants refused to effect 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. 3.1. During the pendency of the suit, defendant No.1 passed away, leaving behind the plaintiffs and the other defendants. Defendants No.2 to 5 filed a written statement admitting the relationship between the parties - 5 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 to the suit. It is denied that the marriage of defendant Nos.3 to 5 was performed by plaintiff hence, they are not entitled to the share in the suit schedule properties. It is admitted that some of the properties are ancestral, and some of the properties are acquired by deceased defendant No.1. It is contended that defendant No.1 relinquished all his rights over the suit schedule properties regarding his share in favour of plaintiff No.1 and defendant No.2 through settlement deed. It is contended that plaintiff No.1 accepted the settlement deed dated 17.02.2000, as the said land was not included as the suit property in O.S.No.122/2000 (vacation O.S.No.8/2007), and plaintiff No.1 is acting as guardian to plaintiff No.2 to knock of her share. He has no right to act as guardian for plaintiff No.2, there is no cause of action to file a suit. Hence, prays to dismiss the suit against defendant Nos.2 to 5. 3.2. The trial Court, based on the pleadings of the parties, framed the following issues: - 6 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 1) Whether the plaintiffs prove that the suit schedule properties are the joint family and ancestral properties of the plaintiffs and defendants as averred in the plaint? 2) Whether the plaintiffs prove that they are entitled for partition and separate possession of the half share in the suit schedule properties and to get separate possession f their share in item Nos.1 to 5 through Revenue Authority and further for appointment of Court commissioner to divide suit item Nos.6 and 7 to hand over half share in them as prayed for? 3) Whether the plaintiffs prove that they are entitled for mesne profit as prayed for? 4) Whether defendant Nos.2 to 5 prove that there is no cause of action for the suit? 5) Whether defendant Nos.2 to 5 prove that the first plaintiff himself has been voluntarily acting as guardian of 2nd plaintiff only to knock off her legal share in the suit schedule property for his benefit and that the first plaintiff is not entitled to act as a guardian has to be appointed in the suit for the second plaintiff? 6) Whether the defendants prove that defendant Nos.1 to 5 entitled for their share in the suit schedule properties in accordance with Hindu Mitakshara School of Law as averred in the written statement? - 7 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 7) Whether the plaintiffs are entitled for the relief sought? 8) What order or decree? 3.3. The plaintiffs to substantiate his case, examined plaintiff No.1 as PW.1 examined 2 witness as PW2 & PW3 and marked 30 documents as Exs.P1 to 30. On the other hand, defendant No.2 was examined as DW.1, examined one witness as DW.2, and marked 19 documents as Exs.D1 to 19. The trial court, after recording the evidence, hearing on both sides, and on assessing verbal and documentary evidence, answered issues 1, 2 and 6 partly affirmative, issues 3 and 4 in the negative, issue No.5 in affirmative, and issues 7 and 8 as per the final order. 3.4. The suit of the plaintiffs was decreed in part vide judgment dated 20.09.2007. It is ordered and declared that the plaintiffs and defendant Nos.2 to 4 are entitled to a 1/6th share each in the land bearing 25/1A (item No.1 property) measuring 5 acres 13 guntas. It is further ordered and declared that plaintiff Nos.1 and 2, - 8 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 and defendant No.2 are entitled to a 7/24th share each in item No.3 and item No.6 of the suit schedule properties. It is ordered and declared that defendants No.3 to 5 are entitled to a 1/24th share each in items Nos.3 and 6 of the suit schedule properties. 3.5. Defendant No.2, aggrieved by the judgment and decree passed in O.S.No.183/2000, preferred an appeal in R.A.No.84/2007 on the file of II Additional Senior Civil Judge at Chitradurga, and the legal representatives of the deceased defendant No.1 i.e., the plaintiff No.1 and plaintiff No.2 filed an appeal in R.A.No.26/2009 on the file of I Additional Senior Civil Judge, Chitradurga. 3.6. The appeal filed by defendant No.2 in R.A.No.84/2007 was disposed of on 14.09.2010, wherein the first Appellate Court allowed the appeal in part, and the judgment and decree passed by the trial Court in O.S.No.183/2000 dated 20.09.2007 was set aside. It is ordered that the plaintiffs and defendant Nos.2 to 5 are - 9 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 entitled to an equal share in suit item Nos.1 and 3 to 7 properties, i.e., 1/6th each. 3.7. The appeal filed by some of the legal heirs of defendant No.1 i.e., plaintiff No.1 and plaintiff No.2 in R.A.No.26/2009 was disposed on 02.11.2012, wherein the first appellate court allowed the appeal in part and the judgment and decree passed by the trial court in O.S.No.183/2000 dated 20.09.2007 was modified. It is ordered that the plaintiffs, and defendant Nos.2 to 5 are entitled to an equal share in the suit properties by metes and bounds. 3.8. Plaintiff No.1, aggrieved by the judgments and decrees passed in R.A.No.84/2007 and R.A.No.26/2009, filed these Regular Second Appeals. 4. Heard the arguments of the learned counsel for plaintiff No.1, and the learned counsel for the defendants. 5. Learned counsel for the plaintiff submits that both the courts below have committed an error in passing - 10 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 the different judgments. He submits that both the appeals arise from the suit in O.S.No.183/2000. The first Appellate Courts committed an error in passing the different judgments. The judgments and decrees passed by the first Appellate Courts are conflicting. Hence, on these grounds, he prays to allow the appeals and set aside the judgments and decree passed in R.A.No.84/2007 and R.A.No.26/2009, and remand the matter to the first Appellate Court to reconsider the appeals afresh, after clubbing both the appeals. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, the learned counsel for the defendants fairly concedes that, the matter may be remitted to the first Appellate Court. 7. This Court, on 25.02.2019, admitted the appeals to consider the following substantial questions of law: 1) Whether adjudication of R.A.No.26/2009 by the I Additional Senior Civil Judge, Chitradurga and - 11 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 R.A.No.84/2007 by the II Additional Senior Civil Judge, Chitradurga, separately though the said appeals arose out of the very same judgment passed in O.S.No.183/2000 dated 20.09.2007 by the trial Court vitiated those judgments of the first Appellate Court? 2) Whether the first Appellate Court were justified in granting equal share to the married daughters i.e., defendant Nos.3 to 5 in the absence of specific pleading and evidence with regard to dates of their marriage? 3) Whether the first Appellate Court in R.A.No.26/2009 was justified in granting share in suit schedule item No.2 property when the same was declined in R.A.No.84/2007 by the judgment dated 14.09.2010? 8. Substantial question of law 1: The plaintiffs filed a suit for partition and separate possession against the defendants, claiming that the plaintiffs and defendants are the members of a Hindu undivided family, and the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. No partition was effected between the plaintiffs and defendants. The plaintiffs demanded - 12 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 partition and separate possession, but the defendants refused to effect a partition. The plaintiffs, to substantiate their case, examined plaintiff No.1 as PW.1, and he reiterated the plaint averments in the examination-in- chief, marked 30 documents as Exs.P1 to 30 and examined two witnesses as PWs.2 and 3. They have supported the case of the plaintiffs and deposed that, the plaintiffs and defendants are the members of a Hindu undivided family, and no partition is effected between them. The suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. 9. On the other hand, defendant No.2 examined himself as DW.1 and he reiterated the written statement averments in the examination-in-chief, and to prove the defence of the defendants, produced the documents marked as Exs.D1 t 19. The defendants also examined one witness as DW.2. The trial Court, after recording evidence of the parties and hearing on both sides has held that the plaintiff has proved that the suit schedule - 13 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 properties are the ancestral and joint family properties of the plaintiffs and defendants, and held that the plaintiffs and defendants No.2 to 4 are entitled to partition and separate possession of 1/6th share each in the land bearing No.RS 25/1A i.e., item No.1 property measuring 5 acres 13 guntas, and the plaintiffs and defendant No.2 are entitled to 7/24th share each in item No.3 and 6 of the suit schedule properties, and defendant Nos.3 to 5 are entitled to a 1/24th share in item Nos.3 and 6 of the suit schedule properties. The legal heirs of defendant No.1 i.e., the plaintiff Nos.1 and 2 aggrieved by the judgment and preliminary decree passed in O.S.No.183/2000, filed an appeal in R.A.No.26/2009 on the file of learned I Additional Senior Civil Judge, Chitradurga. Defendant No.2, aggrieved by the judgment and decree passed in O.S.No.183/2000, preferred an appeal in R.A.No.84/2007 on the file of II Additional Senior Civil Judge, Chitradurga. 10. The First Appellate Courts, without considering the appeals pending before the other Court, proceeded to - 14 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 pass the impugned judgments. The judgments passed by both the Courts i.e., by the First Appellate Courts are contradictory to each other. The First Appellate Court could have clubbed both appeals as the appeals are arising from the judgment passed in O.S.No.183/2000. The First Appellate Court could have clubbed both the appeals, and could have proceeded to pass the judgments. On the contrary, the First Appellate Court committed an error in passing the different judgments in the different appeals. Hence, on these grounds, the impugned judgments passed in R.A.No.26/2009 and R.A.No.84/2007 are liable to be dismissed. The judgment passed by the First Appellate Court vitiates. In view of the above discussion, I answer the substantial question of law 1 in the affirmative. 11. As the matter requires reconsideration by the first Appellate Court, in view of the above discussion, substantial questions of law 2 and 3, do not survive for consideration. - 15 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 12. Accordingly, I proceed to pass the following ORDER i. The Regular Second Appeals are allowed. ii. The judgment and decree dated 02.11.2012 passed in R.A.No.26/2009 by the learned I Additional Senior Civil Judge, Chitradurga and judgment and decree dated 14.09.2010 passed in R.A.No.84/2007 by the learned II Additional Senior Civil Judge,, Chitradurga are set aside. iii. The appeals in R.A.No.26/2009 and R.A.No.84/2007 are restored to its original file. iv. The First Appellate Court, i.e., R.A.No.84/2007 is withdrawn from the file of II Additional Senior Civil Judge, Chitradurga, and made over to the I Additional Senior Civil Judge, Chitradurga. v. The First Appellate Court is directed to club both the appeals, and pass the common judgment, in accordance with law. vi. The parties are directed to appear before the First Appellate Court on 21.07.2025, without awaiting any further notice. - 16 - NC: 2025:KHC:16642 RSA No. 1371 of 2017 C/W RSA No. 1370 of 2017 vii. The office is directed to transmit the records to the First Appellate Court, forth with. viii. All the contentions of the parties are kept open. Sd/- (ASHOK S.KINAGI) JUDGE SKS