- 1 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1694 OF 2015 (PAR) BETWEEN: SRI NANJUNDASWAMY, S/O CHIKKANANJAIAH, AGED ABOUT 41 YEARS, R/AT MADAHALLI VILLAGE, JAYAPURA HOBLI, MYSURU TALUK - 570 008. …APPELLANT (BY SRI PRITHVI RAJ B.N., ADVOCATE) AND: 1. SMT. GOWRAMMA, W/O MAHADEVAPPA @ MURTHY, D/O NINGAPPA, AGED ABOUT 42 YEARS, R/AT KARYA VILLAGE, KOWLANDE HOBLI, NANJANGUD TQ, MYSORE DIST - 571 301. 2. SRI NINGAPPA, S/O LATE CHAMAIAH, AGED ABOUT 75 YEARS, 3. SMT SHIVAMMA, W/O NINGAPPA, AGED ABOUT 61 YEARS, 4. JAYANNA, S/O NINGAPPA, AGED ABOUT 38 YEARS, Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 5. PARAMESH, S/O NINGAPPA, AGED ABOUT 36 YEARS, RESPONDENT NOS.2 TO 5 ARE R/AT MARAIAHNAHUNDI VILLAGE, YELWALA HOBLI, MYSURU TQ - 570 026. 6. SMT. VASANTHA, D/O NINGAPPA, W/O REVANNA, AGED ABOUT 29 YEARS, R/AT KALMALLI VILLAGE, BILIGERE HOBLI, NANJANGUD TALUK, MYSURU DIST - 571 129. 7. SRI JAGADEESH, S/O BORALINGE GOWDA, AGED ABOUT 45 YEARS, R/AT NO 201 8TH CROSS, RAMAMANDIRA ROAD, BOGADI, KASABA HOBLI, MYSURU - 570 026. …RESPONDENTS (BY SRI P NATARAJU, ADV. FOR R1) RESPONDENTS NO.2 TO 7 ARE SERVED, BUT UNREPRESENTED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.07.2015 PASSED IN RA NO.428/2012 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE, AT MYSURU, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 05.09.2012 PASSED IN OS.NO.272/2009 ON THE FILE OF THE IV ADDL. SENIOR CIVIL JUDGE, MYSORE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI - 3 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 ORAL JUDGMENT Challenging judgment and decree dated 04.07.2015 passed by V Addl. District and Sessions Judge, Mysuru, in RA no.428/2012 and judgment and decree dated 05.09.2012 passed by IV Addl. Senior Civil Judge, Mysuru, in OS.no.272/2009, this appeal is filed. 2. Brief facts as stated are, appellant was defendant no.6 in OS no.272/2009 filed by respondent no.1 (plaintiff) for partition and separate possession. In plaint, she stated suit properties were ancestral joint family properties of her father (defendant no.1). It was stated defendant no.1 had two wives. Plaintiff and Renuka were born to Smt.Akkamma (1st wife), among whom only plaintiff was alive. Defendant no.2 - Smt.Shivamma (2nd wife), who had two sons and one daughter namely, defendants no.3 to 5. It was further stated, defendants had joined together and sold item no.3 of suit properties to defendant no.6 under registered Sale Deed dated 27.06.2005. Though, plaintiff had share in suit properties and demanded her share, defendants no.1 to 5, postponed it on some pretext. Hence, suit was filed. - 4 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 3. On receipt of suit summons, defendants no.1 to 4 filed written statement opposing suit on various contentions, such as, denying relationship with plaintiff as well as Smt.Akkamma, non-inclusion of all joint family properties, mis- joinder and non-joinder of parties, erroneous boundaries of suit property and suit being filed without cause of action, etc. It was alternatively contended that they had borrowed loan of Rs.2 Lakhs from defendant no.6 on interest. As security for repayment, sale deed was executed in respect of item no.3 of suit property, wherein defendant no.6 had agreed to cancel said sale deed on repayment. 4. Defendant no.6 filed separate written statement denying knowledge about relationship of plaintiff with other defendants due to non-disclosure by defendants at time of sale of item no.3 of suit property to him. He claimed to be bonafide purchaser in possession and that his name was mutated in revenue records. It was specifically stated that defendant no.6 would have no objection for grant of share to plaintiff in suit properties other than item no.3. Defendant no.7, who was also purchaser, took similar contentions and sought dismissal of suit. - 5 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 5. Based on pleadings, trial Court framed following issues: 1. Whether the plaintiff proves that suit schedule properties are the joint family ancestral properties of the plaintiff and defendant? 2. Whether the plaintiff proves that late Akkamma is the legally wedded wife of 1st defendant? 3. Whether the defendants 1 to 4 prove that this suit is bad for non-joinder and mis-joinder of necessary parties? 4. Whether the sixth defendant proves that he is bonafide purchaser of the item no.3 of suit schedule property? 5. Whether the plaintiff is entitled lawful share in the suit schedule properties ? 6. What order or decree? Additional Issue 1. Whether the 7th defendant proves that he is the bonafide purchaser of the suit schedule properties from defendant nos.3 and 4 from valuable consideration to discharge their legal necessity? 6. During trial, plaintiff examined herself and two others as PWs.1 to 3 and got marked Exhibits P.1 to P.18. On other side, defendants no.6 and 4 were examined as DWs.1 and 2 and got marked Exhibits D.1 to D.4. 7. On consideration, it answered issues no.1, 2 and 5 in affirmative, issues no.3, 4 and additional issue no.1 in - 6 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 negative and issue no.6 by decreeing suit, holding plaintiff entitled for 1/5th share in suit schedule properties by metes and bounds. 8. Aggrieved thereby, defendant no.6 filed R.A.no.428/2012 on various grounds. Based on same, following points were framed: 1. Whether the appellant proves that I.A.no.II filed U/O41 Rule 27 of CPC., is deserves to be allowed at this stage? 2. Whether the appellant proves that the trial Court erred in allotting share of the plaintiff in suit item no.3 as 1/5th share by metes and bounds and to draw preliminary decree without considering the appellant is the bonafide purchaser of suit item no.3 as contended in the grounds of appeal? 3. Whether the impugned judgment and decree of the trial Court is opposed to law, facts and circumstances of the case and is liable to interfere by this Court? 4. What order? 9. On consideration, it answered point no.1 in negative, points no.2 and 3 partly in affirmative and point no.4 by allowing appeal, setting aside judgment and decree passed by trial Court in respect of item no.3 and holding defendant no.6 entitled for 4/5th share in item no.3 and plaintiff entitled for 1/5th share and confirming trial Court's decree insofar as - 7 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 other suit properties. Aggrieved, this appeal is by defendant no.6. 10. Sri Prithvi Raj B.N., learned counsel for defendant no.6 submitted, item no.3 of suit property was purchased by defendant no.6 from defendants no.1 to 5, as they had represented him that there were no other person having interest in it. It was further contended, since plaintiff was claiming only 1/5th share in suit properties, defendant no.6 would be entitled to seek for allotment of plaintiff's share in other suit properties. Modification by first appellate Court would virtually foreclose his right to work out equities in final decree proceedings and sought to draw support from decision in case of Basavanappa v. Gurappa Ankalkoti and Ors. reported in ILR 1999 KAR 3994. 11. Sri P.Nataraju, learned counsel for plaintiff, however, opposed appeal. Though defendants no.1 to 5 had disputed relationship with plaintiff, they had not filed appeal against finding of trial Court about plaintiff being one of sharers over suit properties nor challenged decree granting her 1/5th share in suit properties. Since trial Court had held plaintiff entitled for 1/5th share in suit properties, first appellate Court - 8 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 had rightly modified decree protecting her 1/5th share in suit properties, while holding defendant no.6 entitled for 4/5th share in item no.3. Same was in accordance with law and did not call for interference. It was further submitted, no substantial question of law was involved. On said ground, sought dismissal of appeal. 12. Heard learned counsel, perused judgment and decree and records. 13. From above, it is seen, this appeal is by defendant no.6 - purchaser of item no.3 of suit properties seeking to assail judgment and decree of first appellate Court modifying trial Court decree for partition and granting him right over 4/5th share in item no.3 of suit properties. 14. Main grievance espoused in this appeal is against modification of trial Court decree by first appellate Court on ground that it virtually placed defendant no.6 in worse position than decree passed by trial Court, in his own appeal. 15. From facts and circumstances narrated above, it would emerge that in suit for partition filed by plaintiff, though defendants no.1 to 5, who were vendors of defendant no.6 - 9 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 denied relationship of plaintiff with them in their written statement, they failed to sustain same during trial. After trial Court decreed plaintiff's claim by holding her part of joint family, they did not challenge such finding and virtually conceding to said finding. Even, defendant no.6 failed to examine any other relative to establish to contrary. Therefore, challenge by defendant no.6 against preliminary decree would not sustain. However, grievance about his right to claim equity in final decree proceedings having been curtailed by first appellate Court while modifying trial Court decree appears sound. 16. Therefore, even while holding that no substantial question of law would arise for consideration in present appeal, it would be appropriate to make observations reserving right to defendant no.6 - appellant to seek for adjustment of share of plaintiff in other suit properties or as far as possible to allot item no.3 to share of defendants no.1 to 5 and thereby give effect to alienation of said property by them to appellant. 17. In view of above, appeal is disposed of holding no substantial question of law as arising for consideration, but with observation that restriction of right of defendant no.6 insofar as - 10 - NC: 2025:KHC:13554 RSA No. 1694 of 2015 4/5th share only in item no.3 of suit properties would not come in way of defendant no.6 seeking for allotment of share of plaintiff in other suit properties or for allotment of shares of defendants no.1 to 5 in item no.3 of suit properties, in equity at time of drawing up of final decree. 18. It is clarified that above shall not be treated as expression of opinion one way or other and Final Decree Court would be entitled to arrive at any just conclusion on basis of material on record. Sd/- (RAVI V HOSMANI) JUDGE AV List No.: 1 Sl No.: 42