- 1 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100156 OF 2022 (PAR/POS) BETWEEN: 1. KUM. SIDDARTH ADOPTED SON OF SIDDAPPA HEBASUR @ WALIKAR SINCE MINOR, R/BY HIS GUARDIAN MOTHER SMT. SUNDRAWWA W/O. SIDDAPPA HEBASUR @ WALIKAR, SINCE DECEASED R/BY HIS NATURAL FATHER NINGAPPA S/O. BHEEMAPPA SANNATANGI AGE. 49 YEARS, OCC. AGRICULTURE R/O. ACCHAVVAN COLONY, SAI NAGAR, UNKAL, HUBBALLI, DIST. DHARWAD-580031. …APPELLANT (BY SRI. SANJAY S KATAGERI, ADV) AND: 1. SMT. AKKAVVA W/O YALLAPPA SUTAGATTI AGE. 70 YEARS, OCC. HOUSEHOLD WORK R/O. RAMNAL, TQ. KALAGHATAGI DIST. DHARWAD-581204. 2. SMT. SIDDAWWA W/O. BHEEMAPPA SANNATANGI AGE. 68 YEARS, OCC. HOUSEHOLD WORK R/O. ACCHAVVAN COLONY, SAI NAGAR, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:09:00 +0530 - 2 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 UNKAL, HUBBALLI, DIST. DHARWAD-580031. 3. SMT. SHAKUNTALA @ SAKKAVVA W/O. SIDDAPPA TALAWAR AGE. 66 YEARS, OCC. HOUSEHOLD WORK R/O. TALAWAR ONI, GOPANKOPPA HUBBALLI-580023. 4. SMT. SAVAKKA W/O. KALLAPPA MORABAD AGE. 64 YEARS, OCC. HOUSEHOLD WORK R/O. TALAWAR ONI, GOPANKOPPA HUBBALLI-580023. 5. SHRI. RAYANAGOUDA S/O. SHANKARGOUDA BHEEMANAGOUDRA, AGE. 53 YEARS OCC. AGRICULTURE, R/O. EKATHA NAGAR, NEAR TAJ NAGAR, UNKAL, HUBBALLI-580031. 6. SHRI. BASANAGOUDA S/O. SHANKARGOUDA BHEEMANAGOUDRA, AGE. 39 YEARS OCC. AGRICULTURE, R/O. EKATHA NAGAR, NEAR TAJ NAGAR, UNKAL, HUBBALLI-580031. …RESPONDENTS (BY SRI. U.G. KATTIMANI, ADV FOR R1 TO R4. SRI. VISHWANATH S. BICHAGATTI, ADV FOR R5 & R6) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.12.2021 PASSED IN O.S.NO.196/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by defendant No.1/appellant, challenging the judgment and preliminary decree dated 20.12.2021 passed in O.S. No.196/2018 by the learned II Additional Senior Civil Judge and JMFC, Hubballi. 2. For convenience, the parties are referred to, based on their ranking before the trial Court. The appellant was defendant No.1, respondent Nos.1 to 4 were the plaintiffs, and respondent Nos.5, and 6 were defendant Nos.2 and 3. 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 regarding the suit schedule properties. It is the case of the plaintiffs that, one Satyappa was the original propositus. He had a wife by the name Yallamma. The plaintiffs are the daughters of - 4 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 Satyappa and Yellamma. Satyappa had a son by name Siddappa. He died leaving behind his wife Sundravva on 16.05.2011 and Smt. Sundrawwa also no more. Satyappa and Yellamma died leaving behind the plaintiffs as their legal representatives. It is contended that, the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant No.1. It is stated that, the plaintiffs and defendant No.1 are the members of a Hindu joint family and no partition is effected between the plaintiffs and defendant No.1. It is contended that, late Siddappa executed a registered sale deed dated 21.04.2005 in favour of defendant Nos.2 and 3. The plaintiffs demanded partition and separate possession, but defendant No.1 refused to effect a 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. Defendant No.1 filed a written statement admitting the relationship between the plaintiffs and - 5 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 defendant No.1. Defendant No.1, who is the son of plaintiff No.2, is the adopted son of Siddappa. It is contended that, defendant Nos.2 and 3 are not related to the family of the plaintiffs and defendant No.1. It is contended that, Siddappa is the brother of Plaintiff Nos.1 to 4. During his lifetime, he had performed the marriage of the plaintiffs by spending a huge amount, and obtaining the loan, and the said fact was within the plaintiffs knowledge. It is contended that the plaintiffs, out of love and affection have consented to enter the name of Siddappa only in the concerned Revenue Records regarding the suit property. Accordingly, the name of Siddappa was entered in the Revenue Records as per ‘D’ No.346. The plaintiffs and Siddappa sold 4 acres out of 12 acres 19 guntas of land in favour of defendant Nos.2 and 3 under a registered sale deed dated 21.04.2005 for a consideration of Rs.4,40,000/-. The plaintiffs have consented as witnesses to the registered sale deed. It is contended that, the plaintiffs have relinquished their right regarding to ‘C’ schedule property under a registered - 6 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 relinquishment Deed dated 27.04.2005. Deceased Siddappa adopted defendant No.1 on 09.06.2010 through a registered Adoption Deed. Defendant No.1 is the absolute owner of the suit schedule properties. The plaintiffs are not entitled to claim a share in the suit schedule properties and accordingly, prays to dismiss the suit. 5. Defendant Nos.2 and 3 filed a written statement contending that Siddappa sold a portion of the land bearing Sy.No.346 under a registered sale deed dated 21.04.2005 for a legal necessity and they became the absolute owners based on the registered sale deed executed by Siddappa in their favour. All the plaintiffs have signed as witnesses to the sale deed. It is contended that the suit filed by the plaintiffs is barred by limitation. Hence, prays to dismiss the suit against defendant Nos.2 and 3. 6. The trial Court, based on the pleadings of the parties, framed the following issues, and additional issues: - 7 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 ISSUES 1. Whether the plaintiffs prove that they and defendant No.1 are the members, constitute a Hindu joint family and suit properties are ancestral and joint family properties? 2. Whether the plaintiffs prove that the sale deed executed by late Siddappa s/o Satyappa Hebasur, dt:21.04.2005, in favour of defendants No.2 and 3 pertaining to some portion of schedule B property is null and void and not binding on them? 3. Whether the defendant No.1 proves that the plaintiffs executed a Relinquishment deed duly registered on 27.04.2005 in his favour pertaining to ‘C’ schedule property? 4. Whether the plaintiffs prove that they are entitled for partition and separate possession of 1/5th share each by metes and bounds in the suit schedule properties? 5. Whether the plaintiffs prove that they are entitled for the relief of mesne profits.? 6. What decree or order? Additional issue 1. Whether the defendant Nos.2 and 3 prove that they are bona fide purchasers of a portion of the suit schedule ‘B’ property? . - 8 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 7. The plaintiffs to substantiate their case, plaintiff No.4 was examined as PW.1 and marked 5 documents as Exs.P-1 to P-5. On the other hand, defendant No.2 was examined as DW.1 and examined one witness as DW.2 and marked 3 documents as Exs.D-1 to D-3. The General Power of Attorney holder, who is the guardian of defendant No.1, who is a minor, was examined as DW.3, and marked 6 documents as Ex.D-4 to D-10. 8. After recording the evidence, hearing on both sides, and on assessment of the oral, and documentary evidence, the trial Court answered issue Nos.1 and 4 partly in the affirmative, issue No.2 in the negative, issue No.3 and additional issue No.1 in the affirmative, issue No.5 does not arise for consideration, and issue No.6 as per the final order. The suit of the plaintiffs was partly decreed vide judgment dated 20.12.2021. It is declared that, the plaintiffs are entitled to 1/5th share each in 8 acres 19 guntas of suit ‘B’ schedule property and dismissed the suit in respect of ‘C’ schedule property. - 9 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 Defendant No.1, aggrieved by the impugned judgment and preliminary decree, filed this Regular First Appeal. 9. Heard the learned counsel for defendant No.1, the learned counsel for the plaintiffs and defendant Nos.2 and 3. 10. Learned counsel for defendant No.1 submits that, there was a partition between the plaintiffs and Siddappa, and based on the partition, mutation was effected on 10.08.2004. The name of defendant No.1 was entered in the Revenue Records regarding ‘B’ schedule property. He submits that, there was a prior partition. Hence, the plaintiffs cannot maintain a suit for partition and separate possession without challenging the prior partition. He submits that, the trial Court has not considered the document Ex.D-9 i.e. Oppige Patra and Ex.D-10 i.e. the Mutation Order copy of the mutation register. Hence, he submits that, the trial Court has committed an error in granting a share to the plaintiffs in ‘B’ schedule property. He submits that, based on the - 10 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 mutation, Siddappa had sold a portion of the land in ‘B’ schedule property in favour of defendant Nos.2 and 3, and the plaintiffs had consented as witnesses on the registered sale deed. Hence, on these grounds, he prays to allow the appeal. 11. Per contra, learned counsel for the plaintiffs submits that, the plaintiffs have denied the execution of Ex.D-9 and he submits that, the suit schedule property i.e. ‘B’ schedule property is the ancestral and joint family property of the plaintiffs and Siddappa. The plaintiffs are the members of the Hindu joint family and they are the daughters of Satyappa and Yellamma. He submits that the plaintiffs being coparceners as per Section 6 of the Hindu Succession (Amendment) Act, 2005, are entitled to a share in ‘B’ schedule property. He submits that, the trial Court was justified in recording a finding that Ex.D-9 is an unregistered document, and is inadmissible in evidence. Hence, on these grounds, he prays to dismiss the appeal. - 11 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 12. Per contra, learned counsel for defendant Nos.2 and 3, supported the impugned judgment. 13. Perused the records, and considered the submissions of the learned counsel for the parties. 14. The points, that arise for our consideration are: i) Whether the plaintiffs prove that the suit schedule property i.e. land bearing Sy.No.346 measuring 8 acres 19 guntas of ‘B’ schedule property, is an ancestral and joint family property of the plaintiff and defendant No.1 and constitutes Hindu joint family? ii) Whether defendant No.1 prove that there was a prior partition between the plaintiff and deceased Siddappa? iii) Whether defendant No.1 proves that the judgment, and preliminary decree passed by the trial court is perverse and arbitrary? iv) What order or decree? 15. Point Nos.(i) and (ii): These points are interlinked with each other, and they are taken together for a common discussion to avoid repetition of facts. 16. The plaintiffs to prove their case, plaintiff No.4 was examined as PW.1. She reiterated the plaint - 12 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 averments in the examination-in-chief, and in support of oral evidence, the plaintiffs have produced 5 documents. Ex.P-1 is the RTC extract regarding the land bearing Sy.No.346 which stands in the name of Satyappa, Ex.P-2 is the RTC extract of the land bearing Sy.No.346/2 which stands in the name of original propositus Satyappa, Ex.P-3 is the RTC extract of the land bearing Sy.No.346, Ex.P-4 is the certified copy of the report by Siddappa to the Tahsildar, Ex.P-5 is the certified copy of the sale deed, which discloses that Siddappa executed a registered sale deed in favour of defendant Nos.2 and 3 and the plaintiffs have signed as attesting witnesses on Ex.P-5. 17. In rebuttal, defendant No.2 was examined as DW.1. He has deposed that, defendant Nos.2 and 3 have purchased a portion of land bearing Sy.No.346 to an extent of 4 acres from deceased Siddappa and the plaintiffs have signed as attesting witnesses. They are the bona fide purchasers for value, and in support of oral evidence, defendant No.2 has produced Ex.D-1-the - 13 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 original registered sale deed (Ex.P-5) which discloses that, Siddappa had executed a registered sale deed in respect of a portion of the land to an extent of 4 acres in land bearing Sy.No.346, Ex.D-2 is the RTC extract of the land bearing Sy.No.346/2 which stands in the name of the original propositus Satyappa and Ex.D-3 is the certified copy of ‘D’ No.6464 which discloses that the property was transferred in the name of Satyappa in 1967-68. Further, the defendants have examined one Sri.Hajaratali Dodamani as DW.2. He has deposed that, he knows the plaintiffs and defendant Nos.2 and 3, and he has deposed that, the brother of the plaintiffs namely, Siddappa had been to him for preparation of sale deed for registration, and he sees the copy of the registered sale deed dated 21.04.2005 marked as Ex.D-1(Ex.P-5). He submits that, the plaintiffs were physically present before the Sub- Registrar at the time of execution of the sale deed, and they have affixed their thumb impression as witnesses to the sale deed, and they have consented to the sale deed. DW.1, being a minor, the next friend of minor guardian - 14 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 was examined as DW.3. She has reiterated the written statement averments in the examination-in-chief, and contended that, there was a partition between the plaintiffs and deceased Siddappa, and based on the partition, mutation was effected and subsequently, the plaintiffs and Siddappa sold a portion of land bearing Sy.No.346, and remaining property was fallen to the share of Siddappa. The plaintiffs have no right to claim a share in the suit schedule properties. She also deposed that, the plaintiffs have executed Oppige patra marked as Ex.D-9. She has deposed further that, the plaintiffs are not entitled to a share in the suit schedule properties. 18. From the perusal of the oral evidence of the parties and Exs.P-1 to 3, it is clear that, the suit schedule property i.e. Sy.No.346 was owned and possessed by the Satyappa i.e. the original propositus. The plaintiffs by producing Exs.P-1 to P-3 have proved that, the suit schedule property bearing Sy.No.346 is the ancestral, and joint family property of the plaintiffs and Siddappa. - 15 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 Though, defendant No.1 has taken a defense that, there was a partition in 2004-2005, but to prove that there was an oral partition between the plaintiffs and Siddappa and the plaintiffs have consented for the same, defendant No.1, except producing the Oppige Patra i.e., Ex.D-9, has not examined any witness to prove that, there was an oral partition between the plaintiffs and deceased Siddappa. The “Oppige Patra” produced by the plaintiffs is the partition deed, and the said document is unregistered. If an immovable property worth more than Rs.100/- is to be transferred, it has to be transferred by way of registration as per Section 17 of the Registration Act. The document produced by the defendants marked as Ex.D-9 is inadmissible in evidence. It is well established that, the mere marking of a document does not prove the contents. Defendant No.1 has not examined any attesting witnesses to prove the contents to Ex.D-9. Therefore, the trial Court has rightly disbelieved the defense of defendant No.1 regarding the prior partition, and rightly granted a share to the plaintiffs. In view of the above, we do not find any - 16 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 error in the impugned judgment. Accordingly, we proceed to answer point No.(i) in the affirmative, and point No.(ii) in the negative. 19. Point No.(iii): The trial Court, considering Exs.P-1 to P-3, has rightly recorded its finding that, the suit schedule property is the ancestral/joint family property i.e., land bearing Sy.No.346 measuring 8 acres 19 guntas, and further held that, the plaintiffs and deceased Siddappa constitute a Hindu joint family, and no partition is effected between the plaintiffs and Siddappa, and rightly decreed the suit. 20. Defendant No.1 has taken a defense that, the plaintiffs have relinquished their right over ‘C’ schedule property by executing a registered relinquishment deed which is at Ex.D6. The trial Court has rightly dismissed the suit in respect of ‘C” schedule property, as first of all, the plaintiffs have not challenged the dismissal of the suit regarding ‘C’ schedule property. Though, Siddappa - 17 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 executed a registered sale deed in favour of defendant Nos.2 and 3, from the perusal of the recital of Ex.D-10, it does not disclose the oral partition, alleged to have been effected between the plaintiffs and defendant No.1, and also, the trial Court has upheld the registered sale deed executed by Siddappa in favour of defendant Nos.2 and 3. Accordingly, we do not find any error in the impugned judgment. 21. Accordingly, we answer point No.(iii) in the negative. 22. Point No.(iv): As we have already answered point Nos.(i) to (iii) in favour of the plaintiffs, accordingly, we proceed to pass the following. ORDER The appeal is dismissed. - 18 - NC: 2025:KHC-D:3001-DB RFA No. 100156 of 2022 The judgment and preliminary decree passed in O.S No.196/2018 by the trial Court is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB