- 1 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 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. 1411 OF 2022 (PAR) BETWEEN: 1. KAMALAMMA W/O LATE RAMACHANDRAIAH AGED ABOUT 62 YEARS 2. RAVI KUMAR S/O LATE RAMACHANDRAIAH AGED ABOUT 47 YEARS 3. HANUMANTHARAJU @ PRAVEEN KUMAR .K.R S/O LATE RAMACHANDRAIAH AGED ABOUT 42 YEARS APPELLANTS ARE R/O KANASINAKATTE VILLAGE BHADRAVATHI TALUK-572 301. SHIVAMOGGA DISTRICT. …APPELLANTS (BY SRI. UMESH MOOLIMANI, ADVOCATE) AND: 1. THIMMAIAH S/O LATE KARIYAPPA AGED ABOUT 73 YEARS 2. RANI W/O HANUMATHAIAH AGED ABOUT 40 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 3. ROOPA D/O ANJANEYA AGED ABOUT 37 YEARS 4. LATHA D/O LATE RAMACHANDRAIAH AGED ABOUT 50 YEARS 5. THOGAMMA DEAD BY HIS LEGAL HEIRS RAJU .K.R S/O LATE RANGAIAH AGED ABOUT 45 YEARS R/O SIDDLIPURA POST HOLEHONNUR HOBLI BHADRAVATHI TALUK-572 301. SHIVAMOGGA DISTRICT 6. YASHODHAMMA D/O LATE RANGAIAH AGED ABOUT 50 YEARS R/AT KEREBERENAHALLI BHADRAVATHI TALUK-572 301. SHIVAMOGGA DISTRICT 7. ASHA D/O LATE RANGAIAH AGED ABOUT 40 YEARS R/AT VEEKSHA NITHIN NILAYA NEAR KABALLAMA TEMPLE KENGERI, BANGALORE-560 060. 8. SOUBHAGYAMMA D/O LATE RANGAIAH AGED ABOUT 48 YEARS R/O NAGENAHALLI BHADRAVATHI TALUK-572 301. SHIVAMOGGA DISTRICT 9. SMT. KAMALAMMA W/O LATE NARAYANA - 3 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 AGED ABOUT 63 YEARS 10. RATHNAMMA W/O LATE KRISHNAMURTHY AGED ABOUT 57 YEARS 11. MADHU S/O LATE KRISHNAMURTHY AGED ABOUT 43 YEARS 12. PRAMODA S/O LATE KRISHNAMURTHY AGED ABOUT 40 YEARS 13. ARUN KUMAR S/O LATE KRISHNAMURTHY AGED ABOUT 43 YEARS ALL ARE AGRICULTURISTS R/AT KANASINAKATTE VILLAGE BHADRAVATHI TALUK-572 301. SHIVAMOGGA DISTRICT. …RESPONDENTS THIS RSA IS FILED UNDER SEC. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.02.2021 PASSED IN RA.NO. 5020/2019 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.12.2018 PASSED IN OS.NO. 46/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 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 01.02.2021 passed in R.A.No.5020/2019 by the learned IV Additional District and Sessions Jude, Shivamogga sitting at Bhadravati and the judgment and decree passed in O.S.No.46/2014 by the learned Additional Senior Civil Judge and JMFC, Bhadravathi. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the defendants No.1 to 3, respondent No.1 was the plaintiff and the other respondents were the other defendants. 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. It is the case of the plaintiff that one Kariyappa was the propositus. He had three sons and two daughters, namely, the plaintiff, late Ramachandrappa, late Krishnamurthy and defendants No.6 and 7. Defendants No.1 to 5 are the wife and children of the late Ramachandrappa and - 5 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 defendants No.8 to 11 are the wife and children of the late Krishnamurthy. The original propositus Kariyappa was the Archaka in Sri. Anjaneya Temple at Jambarghatta village, Bhadravathi Taluk. He was in possession and enjoyment of the suit schedule properties. Out of them, some are belonged to the temple. After the demise of Kariyappa, the plaintiff, along with his siblings, jointly cultivated the properties. In the meantime, Krishnamurthy secured a Government job and the plaintiff and elder brother Ramachandrappa used to cultivated the landed properties. After the demise of Krishnamurthy the plaintiff performed pooja in the temple, and cultivating the landed properties by considering the possession of the joint family. 4. The Government granted some of the landed properties in favour of three sons of Kariyappa, including the plaintiff. The grant was made in the name of the respective parties. The joint family is in possession of the suit schedule properties. The plaintiff and his brothers were cultivating all the properties under the joint family possession. A settlement took place between the sons of Kariyappa concerning the suit schedule properties and the settlement was reduced to writing, - 6 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 but the same was not registered. Though the properties have been allotted to the respective parties, the parties have not acted upon the said settlement. Recently, the plaintiff learnt that the defendants are intending to disperse the properties. The plaintiff requested the defendants to effect a partition by metes and bounds under the registered document by issuing a legal notice. The defendants denied to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Despite service of summons, there was no representation for defendants No.4 and 5 to 7 and they were placed ex-parte. Defendants No.8 to 11 filed a written statement admitting that Kariyappa was the Archaka of Sri. Anjaneya Temple, Jambarghatta village, Bhadravati Taluk, and he was in possession of the landed properties, and some of them belonged to the temple. After his demise, the plaintiff and his siblings jointly cultivated the suit schedule properties. It is contended that the plaintiff and his brothers jointly cultivated the ancestral properties, but not all the suit schedule properties. A settlement deed was entered into between the children of Kariyappa on 15.01.1956, and it was not a partition - 7 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 deed by metes and bounds and contended that item No. 6 and house property constructed in item No.11 are the self acquired properties which were acquired by late Krishnamurthy out of his income in which only defendants No.8 to 11 have got a right. Hence, prays to dismiss the suit. Defendants No.1 to 3 filed a written statement denying the averments made in the plaint and contended there is no joint family structure. It is stated that there was an oral partition effected during the lifetime of Kariyappa in 1966-67. Hence, prays to dismiss the suit against defendants No.1 to 3. 6. The trial Court, based on the pleading of the parties, framed the relevant issues. 7. The plaintiff to substantiate his case examined himself as PW-1 examined one witness as PW-2 and marked 11 documents as Exs.P.1 to P.11. On the other hand, one Praveen Kumar was examined as DW-1, defendant No.10 was examined as DW-2 and marked 29 documents as Exs.D.1 to D.29. The trial Court, on assessing verbal and documentary evidence, decreed the suit in part vide judgment dated 01.12.2018. It is declared that the plaintiff is entitled to a 6/20th share, - 8 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 defendants No.1 to 5 together and defendants No.8 to 11 together are entitled to a 6/20th share in item No1 in an extent of 2.01 acre, item No2 in an extent of 0.34, item No3 to 5 and item No. 8 to 10. So far as item No.11 is concerned, they are entitled to a 6/20th share only in land but not in the house constructed therein and defendants No.6 and 7 are entitled to a 1/20th share each in the aforesaid properties. As defendants No.8 to 11 have constructed a house in item No.11 is under equity, item No.11 to be allotted to the share of defendants No.8 to 11 while carving out of the shares. 8. Defendants No.1 to 3, aggrieved by the judgment and preliminary decree passed in O.S.No.46/2014, preferred an appeal in R.A.No.5020/2019 on the file of the IV Additional District and Sessions Judge, Shivamogga sitting at Bhadravathi. The first appellate Court, on reassessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 01.02.2021. Defendants No.1 to 3, aggrieved by the impugned judgments filed this Regular Second Appeal. 9. Heard the arguments of the learned counsel for defendants No.1 to 3. - 9 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 10. He submits that both the Courts below have not properly appreciated the evidence on record. He submits that there was an oral partition between the parties to the suit and based on the partition, parties were put in possession of their respective shares. He submits that there is no status of joint family and joint family properties. He submits that based on oral partition effected between the parties, the names of the respective parties were mutated. He also submits that the initial burden is on the plaintiff to prove that the suit schedule properties are the joint family properties. In the instant case, the plaintiffs have not produced any records to establish that the suit schedule properties were the joint family properties as of the date of filing of the suit. The trial Court has not given sufficient opportunity to defendants No.1 to 3, to put-forth their case. Hence, on these grounds prays to allow the appeal. 11. Perused the records, and considered the submissions of the learned counsel for defendants No.1 to 3. 12. It is not disputed that one Kariyappa was the Archaka of Sri. Anjaneya Swamy Temple, Jambaghatta village, Bhadravati Taluk. During his lifetime, all the landed properties - 10 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 were given for the maintenance of the said temple and he was managing the expenses of pooja out of the income derived from the landed properties. He died leaving behind the plaintiff, late Ramachandrappa, late Krishnamurthy and defendants No.6 and 7. After the death of Kariyappa, the plaintiff and other members were jointly cultivating the suit schedule properties and no partition is effected. The plaintiff, to prove his case, examined himself as PW-1 and he reiterated the plaint averments in the examination-in- chief and to prove that the suit schedule properties are the joint family properties of the plaintiff and defendants, produced the documents Ex.P.1 is the Genealogical Tree, Ex.P.2 to P.4 are the mutation register extracts regarding item Nos.1 to 3 of the suit schedule properties, Ex.P.5 to Ex.P.9 are the RTC extracts regarding the suit item Nos. 1 to 3, 5 and 6 of the suit schedule properties which discloses that item No.1 stands in the name of defendant No.2. Items No.2 and 3 stands in the name of defendant No.1, item No.5 stands in the name of plaintiff, item No.6 stands in the name of defendant No.8 who is the wife of the late Krishnamurthy, Ex.P.10 is a legal notice, - 11 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 Ex.P.11 is a Parikat dated 15.01.2006 and Ex.P.11(a) to 11(c) are the signatures. 13. Though, the defendants have contended that there was an oral partition in 1966-67, DW-1 failed to tender himself for cross-examination. Hence, the trial Court discarded the evidence of DW-1. One Pramod i.e., defendant No.10 was examined as DW-2. During the cross-examination, he deposed that the house constructed in the suit schedule item No.1, property belonged to his grandfather Kariyappa and house was constructed in 2010. To establish that there was a prior partition, the defendants have not produced any records. Both the Courts below have categorically recorded a finding of the fact that the defendants have failed to prove the oral partition effected in 1966-67 and further the plaintiff has filed to establish that item No.7 of the suit schedule properties is the joint family property of the plaintiff and defendants. 14. There is no rebuttal evidence on behalf of the defendants. Both the Courts below, considering the material on record, have rightly held that the plaintiff has proved that the plaintiff and defendants are the members of a Hindu undivided - 12 - NC: 2025:KHC:13502 RSA No. 1411 of 2022 joint family and the suit schedule properties items No.1, 2, 3 to 5, 8 to 10 and 11 are the joint family properties of the plaintiff and the defendants and rightly granted a share to the plaintiff. Hence, I do not find any error in the impugned judgment or any substantial question of law that arise for consideration in this appeal. 15. Accordingly, I proceed to pass the following: ORDER The Appeal is dismissed. The judgment and decree dated 01.02.2021 passed in R.A.No.5020/2019 by the learned IV Additional District and Sessions Jude, Shivamogga sitting at Bhadravati and the judgment and decree passed in O.S.No.46/2014 by the learned Additional Senior Civil Judge and JMFC, Bhadravathi are confirmed. No order as to the costs. In view of the dismissal of the appeal, pending I.A.s, do not survive for consideration and accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK; List No.: 1 Sl No.: 45