- 1 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 25TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100490 OF 2023 (PAR/POS) BETWEEN: SMT. SAVITA W/O. ADAVAPPA HUDDAR AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O. HOSUR-587 142, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT. …APPELLANT (BY SRI. RAVI S.BALIKAI AND SRI. VINEET R.BALIKAI, ADVOCATES) AND: SMT. LAXMIBAI W/O. RAJU MALALI AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O. SIDDAPUR-591 151, TQ: JAMKHANDI, DIST: BAGALKOT. …RESPONDENT (BY SRI. C.S.SHETTAR AND SRI. AKASH R.NAIK, ADVOCATES) THIS RFA IS FILED UNDER SECTION 96 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.07.2023 PASSED IN O.S.NO. 92/2021 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, JAMKHANDI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. SAMREEN AYUB DESHNUR SAMREEN AYUB DESHNUR HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR) This appeal by the plaintiff in O.S.92/2021 is directed against the impugned judgment and decree dated 28.07.2023, whereby, the said suit filed by the appellant/plaintiff against the respondent/defendant was dismissed by the Additional Senior Civil Judge, Jamkhandi1. 2. Briefly stated the facts giving rise to the present appeal are as under: The appellant/plaintiff is the wife of one Adavappa Huddar, who expired on 27.04.2021 living behind the appellant/plaintiff and his mother Shantawwa (defendant No.1) as his heirs and legal representatives. The said Adavappa, husband of the plaintiff had a sister Laxmibai (defendant No.2) who is none other than the daughter of defendant No.1. It is a matter of 1 Hereinafter referred to as “the Trial Court” for short - 3 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 record and an undisputed fact that, defendant No.1/Shantawwa expired during the pendency of the suit on 20.03.2023 and the suit continued to be prosecuted as against her daughter Laxmibai, who had already been arrayed as defendant No.2 in the suit. 3. The appellant/plaintiff instituted the aforesaid suit seeking partition and separate possession of her alleged 1/3rd share in the suit schedule immovable properties and for other reliefs. It is was specifically contended by the plaintiff that she was the widow of deceased Adavappa, upon whose demise, she became entitled to 1/3rd share in the suit schedule properties along with defendant No.1 and defendant No.2 and consequently instituted the aforesaid suit seeking partition and separate possession of her alleged share in the suit schedule properties and for other reliefs. 4. Defendant No.1 filed his written statement which was adopted by defendant No.2 whereby both of them disputed and denied the various allegations and claims made by the plaintiff. In this context, it is pertinent to note the suit schedule properties - 4 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 comprise of landed properties, a vacant site and a house property as hereunder. 1) The Agricultural land bearing RS No.-88/3 measuring 6A-16 gu. Assessment 11-01 situated at Siddapur Village Tq: Jamkhandi, Dist: Bagalkot. 2) The Agricultural land bearing RS No.-146/1 measuring 8A-00gu. Assessment 10-30 situated at Siddapur Village Tq:Jamkhandi, Dist: Bagalkot. 3) Property extract of open space of VPC No. 626 of village Siddapur Tq: Jamkhndi. 4) House Property extract of VPC No. 228 of village Siddapur Tq: Jamkhndi. 5. Based on the pleadings of the parties, the Trial Court, framed for the following issues: 1. Whether plaintiff proves that, she is legally wedded wife of deceased Adavappa? 2. Whether plaintiff proves that, suit properties are ancestral joint family properties and there is no severance of joint status? 3. Whether plaintiff proves that she is entitled for 1/3rd share in the suit properties? - 5 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 4. What relief plaintiff is entitled for? 5. What order or decree? 6. The plaintiff examined herself as PW1 and documentary evidence at Exs.P.1 to PW22 were marked while defendant No.2 examined herself as DW1 and documentary evidence at Exs.P1 to D5 were marked on her behalf. 7. After hearing the parties, the Trial Court proceeded to answer Issue Nos.1 in the affirmative, upholding the claim of the plaintiff that she was the wife of deceased Adavappa and daughter-in-law/sister-in-law of defendant Nos.1 and 2 respectively. However Issue Nos.2, 3 and 4 were answered against the plaintiff by holding that she was not entitled to any share in the suit schedule properties. Aggrieved by the impugned judgment and decree passed by the Trial Court dismissing her suit, the appellant/plaintiff is before this Court by way of the present appeal. 8. During pendency of the appeal, the appellant has filed an application in I.A.No.1/25 under Order VI Rule 17 read - 6 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 with Section 151 of the Code of Civil Procedure, 19082 seeking for amendment of the plaint by incorporating the two additional landed properties as additional suit schedule properties. By way of the proposed amendment, the appellant/plaintiff seeks to also incorporate additional pleadings in support of her claim for partition in relation to the two additional items of the suit schedule properties. The proposed amendment sought for by the appellant/plaintiff is as under: "8(A) The Plaintiff and the Defendant No.2, being the sole surviving members of the family of late Appanna, they are entitled for equal ½ share in the lands: (i) Sy. No. 193/3 measuring 02A 13 Gs, out of this ½ share and (ii) Sy. No. 194 measuring 02A-02Gs, out of this 0A-12 Gs, land, both lands situated in Siddapur village, Tal: Jamkhandi, Dist: Bagalkot. It is submitted that these two lands belong to the joint family of the Plaintiff and Defendants and they are ancestral properties. After death of Appanna, and the Plaintiff's husband Adavappa, and the Defendant No.1, Smt. Shantawwa, myself and the Defendant No.2 have inherited the above said two lands as surviving family members and both of us are entitled for ½ share each in these lands." 2 Hereinafter referred to as “the CPC” for short - 7 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 And in the Plaint Schedule, after Item No. 2, add the following two lands as :- "2(A) The agricultural land bearing Sy. No. 193/3 measuring 02A 13Gs, out of this joint ½ portion situated in Siddapur Village, Tal; Jamkhandi, Dist : Bagalkot, 2(B) The agricultural land bearing Sy. No. 194 measuring 02A-02Gs, out of this joint portion of 0A-13 Gs, situated in Siddapur village, Tal: Jamkhandi, Dist: Bagalkot". 9. The application I.A.No.1/2025 filed by the appellant/plaintiff seeking amendment of the plaint is seriously opposed by the respondent. 10. Heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record. 11. Following points arise for consideration in the present appeal: (i) Whether I.A.No.1 of 25 filed by the appellant/plaintiff seeking amendment of the plaint deserves to be allowed? - 8 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 (ii) Whether the impugned judgment and decree passed by the trial Court warrants interference by this Court in the present appeal? Regarding Point No.(i) : 12. As stated supra, I.A.No.1/2025 filed by the appellant seeking amendment of the plaint by incorporating additional paragraph No.8A to the plaint and correspondingly including two additional landed properties as additional items of suit schedule properties. 13. In the affidavit filed in support of the application, the appellant/plaintiff specifically states that, she was not educated and did not have knowledge of the affairs of her husband's family and due to lack of information and ignorance and due to oversight and inadvertence, she omitted to include two additional items among the suit schedule properties, which are now sought to be included by way of the proposed amendment. It is submitted that the proposed amendment does not in any way change or alter the nature or character of the suit or its cause of action, and in order to avoid multiplicity of proceedings, it is - 9 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 necessary that the proposed amendment be allowed and the appellant/plaintiff be permitted to include two additional suit schedule properties to the existing suit schedule properties. 14. Per contra it is submitted by the learned counsel for the respondent that there is no merit in the application and that the same is liable to be dismissed. 15. It is well settled that a suit for partition should encompass and include all co-sharers and all items of joint family properties. Insofar as all co-sharers are concerned, there is no dispute between the parties that the appellant and respondent are the only co-sharers and there are no other co-sharers. 16. Though the respondent would seek to contend that the proposed two additional items of properties are not joint family properties and that the plaintiff would not be entitled to claim partition in respect of the additional two items of properties, having regard to the admitted fact that these two properties were not included among the four items of suit schedule properties and neither party had any opportunity to put forth their respective contention/s in relation to these two - 10 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 additional items of properties, without expressing any opinion on the merits/demerits of the rival contentions, we deem it to just and appropriate to allow I.A.No.1/2025 reserving liberty in favour of the respondent/defendant No.2 to file additional written statement to the amended plaint putting forth all contentions on merits, as well as all other aspects in accordance with law. 17. It is needless to state that the appellant/plaintiff would also be entitled to include all alleged additional co-shares by way of seeking impleadment by filing necessary application in that regard. Accordingly, I.A.No.1/2025 filed by the plaintiff deserves to be allowed and point No.(i) is answered accordingly. Regarding Point No.(ii) : 18. While dealing with point No.(i), we have come to the conclusion that the application seeking amendment filed by the plaintiff deserves to be allowed. The next question that arises for consideration is the course to be adopted by this Court, after allowing the said amendment application. As stated supra, the additional two properties which have been permitted to be incorporated into the plaint by way of the amendment were not - 11 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 subject matter of the original plaint or the proceeding before the Trial Court and there is neither any issue framed nor evidence adduced or finding recorded by the Trial Court in relation to two additional properties. It is also pertinent to note that respondent specifically denied the contention of the plaintiff that she is entitled to a share in these two additional items of suit schedule properties. 19. Under these circumstances, we deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh on merits and in accordance with law, on all issues including the two additional items of suit schedule properties and by issuing certain directions by keeping open all rival contentions of the parties. Point NO.(ii) is accordingly answered. 20. In the result, we pass the following: ORDER (i) The appeal is hereby allowed. (ii) Impugned judgment and decree dated 28.07.2023 passed in O.S.No.92/2021 by the Additional Senior Civil Judge, Jamkhandi, is hereby set aside. - 12 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 (iii) The matter is remitted back to the Additional Senior Civil Judge, Jamkhandi, for reconsideration afresh on all issues and in accordance with law. (iv) I.A.No.1/2025 filed by the appellant/plaintiff stands allowed as prayed for. (v) Parties are directed to appear before the Trial Court on 29.10.2025. (vi) The appellant/plaintiff is directed to carry out the amendment and file amendment plaint before the Trial Court on 29.10.2025. (vii) Liberty is reserved in favour of respondent/defendant No.2 to file additional written statement to the amended plaint. (viii) Liberty is also reserved in favour of the parties to file additional interlocutory applications, which shall be considered by the Trial Court and disposed of in accordance with law. (ix) Parties are also reserved liberty to adduce additional oral and documentary evidence in support of their respective claims. (x) All rival contentions on all aspects of the matter on all the properties including the two additional properties are kept open and no opinion is expressed on the same. - 13 - HC-KAR NC: 2025:KHC-D:13247-DB RFA No. 100490 of 2023 (xi) During pendency of the present appeal the appellant had filed an application I.A.No.1/2023, which was allowed by this Court vide order dated 13.09.2024. Liberty is reserved in favour of the appellant/plaintiff to file an identical application before the Trial Court, which shall provide an opportunity to the respondent / defendant No.2 to file objections to the said application and consider and pass appropriate orders on the same in accordance with law. All contentions of the parties with regard to the same are also kept open. (xii) The Trial Court is directed to dispose of the suit as expeditiously as possible. (xiii) Registry to retransmit the records back to the Trial Court, forthwith. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE EM Ct:vh List No.: 1 Sl No.: 14