- 1 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100081 OF 2024 (PAR/POS) BETWEEN: 1. SRI EDIGARA ERANNA S/O. LATE SRI EDIGARA BASAPPA, AGED ABOUT 91 YEARS, AGRICULTURIST, R/O. W.NO.3, KOLURU-VILLAGE, KURUGODU-TALUK, BALLARI-DISTRICT-583112. 2. SRI EDIGARA VENKATESH S/O. SRI EDIGARA ERANNA, AGED ABOUT 63 YEARS, R/O. W.NO.3, KOLURU-VILLAGE, KURUGODU TALUK, BALLARI-DISTRICT-583112. 3. SMT. LAKSHMI W/O. EDIGARA VENKATESH, AGED ABOUT 58 YEARS, 4. SRI RANGAIAH S/O. EDIGARA VENKATESH, AGED ABOUT 26 YEARS, 5. SRI BASAPPA S/O. EDIGARA VENKATESH, AGED ABOUT 24 YEARS, APPELLANTS NO.S 3 TO 5 ARE R/O. W.NO.3, KOLURU-VILLAGE, KURUGODU-TALUK, BALLARI-DISTRICT-583112. 6. SRI EDIGARA SRINIVASA S/O. EDIGARA ERANNA, AGED ABOUT 54 YEARS, AGRICULTURIST, R/O. W.NO.3, KOLURU-VILLAGE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 KURUGODU-TALUK, BALLARI-DISTRICT-583112. …APPELLANTS (BY SRI MANJUNATHA G.PATIL, ADVOCATE) AND 1. SMT. GANGAMMA W/O. SRI BASAPPA, AGED ABOUT 69 YEARS, AGRICULTURIST, R/O. W.NO.28, KALLID NAGAR, RAMANGARA, BANDIHATTI, C.B. BALLARI-583101. 2. SMT. SHAKUNTHALAMMA W/O. SRI RAMULU, AGED ABOUT 51 YEARS, AGRICULTURIST, R/O. D.NO.8/512, B.C.NAGAR, GOOTY, A.P.-420001. 3. SRI EDIGARA RANGAPPA S/O. EDIGARA ERANNA, AGED ABOUT 49 YEARS, AGRICULTURIST, R/O. W.NO.4, SHIVANAGAR, KOLLURU-VILLAGE, KURUGODU, TQ. BALLARI-DISTRICT-583112. …RESPONDENTS (BY SRI MANJUNATH JADAI, ADVOCATE FOR R1 AND R2; NOTICE TO R3 IS SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, BALLARI IN O.S.NO.256/2021 DATED ON 01.12.2023 DECREED THE SUIT OF THE PLAINTIFFS/RESPONDENTS AND TO DISMISSED THE SUIT OF THE PLAINTIFFS/RESPONDENTS FULLY WITH COST THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., - 3 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 THIS REGULAR FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though this appeal is listed for admission, with consent of learned counsel for the parties it is taken up for final disposal. 2. The appeal is filed by defendant Nos.1 to 6 in O.S.No.256/2021 challenging the judgment and decree dated 01.12.2023 passed in O.S.No.256/2021 on the file of Principal Senior Civil Judge and CJM, Ballari, thereby, the suit filed for partition and separate possession is decreed by granting 1/6th share each to the plaintiffs, in the suit schedule properties. 3. For the sake of convenience and easy reference, the status of the parties is referred to as per their ranking before the Trial Court. 4. The plaintiffs have filed suit for partition and separate possession. One Edigara Basappa was the original - 4 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 propositus having wife by name Edigara Hanumanthamma. Both died leaving behind defendant No.1 as only son. Defendant No.1 had two wives by name Nagamma and Saraswathi. Both Nagamma and Saraswati died about 17 years and 15 years back, respectively. Plaintiff No.1 and defendant No.2 are children of defendant No.1 and Nagamma (1st wife). Plaintiff No.2 and defendant Nos.6 and 7 are children of defendant No.1 and Saraswati (2nd wife). It is not disputed that the suit schedule properties are joint family and ancestral properties. Therefore, the plaintiffs being daughters claiming as they are coparceners, filed the suit for partition and separate possession. 5. Defendants appeared through their counsel and filed written statement denying all the plaint averments and prayed for dismissing the suit. 6. Based on the pleadings of the parties, the Trial Court has framed the following issues: 1. Whether the plaintiffs prove that, the suit schedule properties are ancestral joint family properties of themselves and defendants? - 5 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 2. Whether the plaintiffs prove that, the defendants got effected partition behind there back and mutated their names in respect of the suit schedule properties? 3. Whether the defendants prove that, there was a already partition on 08.06.1984 in respect of suit schedule properties? 4. Whether the defendants prove that the suit of the plaintiffs is barred by limitation? 5. Whether the plaintiffs are entitled for the relief as claimed in the suit? 6. What order or decree? 7. In order to prove the case, plaintiff No.1 is examined as PW-1 and got marked documentary evidence as Exs.P-1 to Ex.P-26. Defendant No.7 is examined as DW-1 and defendant No.6 is examined as DW-2 and got marked documentary evidence as Exs.D-1 to Ex.D-6. 8. The Trial Court after appreciating the evidence on record has decreed the suit by granting 1/6th share each to the plaintiffs in the suit properties. The Trial Court assigned reason that the suit properties are joint family and ancestral properties, as it is not denied by the defendants and the - 6 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 relationship between the parties is also not disputed. Hence, decreed the suit. 9. Being aggrieved by it, defendant Nos.1 to 6 preferred this appeal. In this appeal, the defendants have filed an interlocutory application No.2/2024 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) for production of additional documents. 10. Learned counsel for defendant Nos.1 to 6 submitted that the appellants herein have executed the registered relinquishment deed relinquishing all their right, title and interest, but this was not produced due to oversight. Hence, prays to consider the same as additional documents and requested to hold that since relinquishment deed is registered one, the plaintiffs do not have any right, title or interest over the suit property. Further, learned counsel for defendants No.1 to 6 submitted that the plaintiffs had executed affidavits by confirming that they have relinquished their right, title and interest over the suit properties. Therefore, the plaintiffs with all consciousness - 7 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 have executed registered relinquishment deed and affidavits. Hence, prays this Court to allow the appeal and dismiss the suit by setting aside the judgment and decree passed by the Trial Court. 11. On other hand, learned counsel for the plaintiffs submitted that whatever may be the relinquishment deed and affidavits, are only for the sake of enabling the defendants to raise loan from banks and financial institutions, but they had not really relinquished their properties. He read out the affidavits that these plaintiffs do not have any objection to raise loan by their brothers. Therefore, only for this limited purpose, such relinquishment deed and affidavits are executed only for the purpose of benefiting the defendants to raise loan. Hence, there is no actual relinquishment of properties in favour of the defendants. Further, submitted that the relinquishment deed and affidavits were not produced in the suit before the Trial Court. Though the defendants have knowledge regarding execution of these documents, none of the parameters are attracted to receive these documents as additional evidence - 8 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 filed along with I.A.No.2/2024 under Order XLI Rule 27 R/w Section 151 of the CPC. 12. Further, submitted that the defendants have not taken any pleading in the written statement regarding execution of relinquishment deed and affidavits. Therefore, the defendants have totally not pleaded and not produced any evidence in the suit regarding relinquishment deed. Since, the defendants knew that those documents are only nominal for the sake of benefiting the defendants as their brothers enabling them to avail loan from banks and financial institutions. Therefore, submitted that the appeal is found to be devoid of merits. Hence, prayed this Court to dismiss the appeal. 13. Upon hearing arguments of both the sides and perusing the material available on record, the points that would arise for consideration in the present appeal, are as under: i) “Whether, under the facts and circumstances involved in the case, the appellants/defendants No.1 to 6 make a ground for allowing I.A No.2/2024 filed under - 9 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 Order XLI Rule 27 of the CPC for production of additional evidence? ii) Whether, under facts and circumstances involved in the case, the defendants prove that the plaintiffs have relinquished their right, title and interest over the suit properties with all their consigns by the plaintiffs? iii) Whether the judgment and decree passed by the Trial Court requires interference by this Court?” 14. The relationship between the plaintiffs and defendants as above discussed is not disputed. The suit properties are the joint family and ancestral properties is also not disputed. The defendants’ contention is that the suit properties are originally belong to one Edigara Rangamma, who was sister of Edigara Hanumanthamma i.e., wife of original propositus Edigara Basappa. To this extent, the defendants have not produced any evidence. The said Smt.Rangamma was a spinster. Though accepting pleadings of the defendants that the properties belong to Smt.Rangamma, but she is a spinster. Therefore, the - 10 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 properties devolved upon the plaintiffs and defendants through Hanumanthamma. 15. The defendants have not taken any pleadings in their written statement that the plaintiffs have earlier executed registered relinquishment deed and also affidavits. But straight way in this appeal defendants No.1 to 6 have filed I.A No.2/2024 under Order XLI Rule 27 of the CPC, for producing copies of registered relinquishment deed and copies of affidavits. But this fact of execution of relinquishment deed and affidavits were not pleaded in their written statement. Defendants No.1 to 6 have not pleaded in their written statement regarding relinquishment deed and affidavits. Hence, the application filed for production of additional evidence in this appeal could not be entertained since absolutely there is no pleading in the written statement in this regard. 16. Furthermore, the defendants knew the very fact of relinquishment deed and affidavits, but could not have taken pleadings and produced any evidence in this regard. Therefore, this conduct of defendant Nos.1 to 6, fortifies the - 11 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 submission made by the learned counsel for the respondents/plaintiffs that those relinquishment deed and affidavits were nominal sake for the purpose of enabling the defendants to raise loan from banks and financial institutions. This is fortified upon perusing the affidavits produced in this appeal along with an application. Therefore, on all its preponderance of probabilities, it is proved that the defendants knew that whatever relinquishment deed and affidavits are there, are not really relinquishing the properties by the plaintiffs. Hence, they are proved to be nominal sake. Therefore, I.A No.2/2024 filed for production of additional evidence does not come under any of the parameters under Order XLI Rule 27 of the CPC. Therefore, the application filed for production of additional evidence is liable to be rejected. 17. When the application filed for production of additional evidence is liable to be rejected, then it is proved that the suit schedule properties are ancestral and joint family properties and relationship of parties is also admitted. Therefore, the Trial Court is correct in declaring that the - 12 - NC: 2025:KHC-D:829 RFA No. 100081 of 2024 plaintiffs are entitled for partitions of 1/6th share each in the suit schedule properties. 18. Accordingly, the judgment and decree passed by the Trial Court is justifiable and legal one which need not be interfered with by this Court. 19. Accordingly I answer points No.1 to 3 in the negative. 20. Therefore, the appeal being devoid of merit is liable to be dismissed at the state of admission itself. Therefore, the appeal is dismissed. 21. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA-para 1 to 9. PMP-para 10 to end CT: UMD. List No.: 1 Sl No.: 18