- 1 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 2100 OF 2023 (DEC/INJ) BETWEEN: SANNARAMEGOWDA S/O LATE MOOGEGOWDA @ RAMEGOWDA @ MADEGOWDA, AGED ABOUT 72 YEARS, RESIDING AT BONTHAGALLI VILLAGE, KASABA HOBLI, SRIRANGAPTNA TALUK, MANDYA DISTRICT - 571 438. …APPELLANT (BY SRI. H.R. HARSHA KUMAR GOWDA, ADVOCATE) AND: 1. SANNAHYDEGOWDA @ HELAVAPPA S/O LATE CHIKKARAMEGOWDA @ CHIKKARAMAIH, AGED ABOUT 68 YEARS, 2. SMT. SANNAMARAMMA W/O LATE MADIAH, AGED ABOUT 62 YEARS, 3. SRI. MADAPPA S/O LATE MADAIAH, AGED ABOUT 46 YEARS. 4. SRI SIDDARAJU S/O LATE MADAIAH, AGED ABOUT 44 YEARS. …RESPONDENTS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.08.2023 PASSED IN RA NO.257/2021 ON THE FILE OF V ADDITIONAL DISTRICT JUDGE, MYSURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.07.2020 PASSED IN OS NO.503/2014 ON THE FILE OF I ADDITIONAL, II CIVIL JUDGE AND JMFC, MYSURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. Harsha Kumar Gowda H.R., learned counsel for the appellant. 2. This Court did not deem it fit to issue notice to the respondents having regard to the limited question to be decided in the appeal. 3. Unsuccessful plaintiff is the appellant in the second appeal challenging the dismissal of the suit in O.S.No.503/2014 confirmed in R.A.No.257/2021. - 3 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 4. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 4.1 A suit for declaration and injunction in respect of the following immovable property (hereinafter referred to as 'suit property' for short) came to be filed by the plaintiff contending that he is the absolute owner of the suit property by virtue of the partition that took place between the father of the plaintiff and father of the defendants vide Ex.P11. SCHEDULE Landed property bearing Sy.No.590/2, situated at Harohalli Village, Varuna Hobli, mysuru Taluk, measuring 20 guntas out of one acre, and bounded on: East by : Land of Makegowda West by : Road North by : Land of Karimadaiah South by : Land of Ramegowda. 5. It is the contention of the plaintiff that they having sold their portion of 0-20 guntas of land in - 4 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 Sy.No.590/2 of Harohalli Vilalge, Varuna Hobli, Mysore Taluk, fallen to his share. Defendants are unnecessarily interfering with the suit property having sold their 0-20 guntas of the land in the same survey number. 6. Pursuant to the suit summons, defendants did not contest the suit and they were placed ex parte. 7. Based on the documents placed on record in the oral evidence of the plaintiff marked at Exs.P1 to P11 which are certified copy of the sale deed dated 08.09.2000, certified copies of the RTC Extracts, certified copies of the Mutation Register Extract, tax paid receipts and Palu Parikattu dated 10.02.1975. 8. Learned Trial Judge raised necessary points and taking note of the fact that in Ex.P11, there are no boundaries shown in the plaint, suit schedule properties shown with the boundaries which did not tally with the other material documents placed on record by the plaintiff and dismissed the suit of the plaintiff. - 5 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 9. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in R.A.No.257/2021 with an application under Order XLI Rule 27 of the Code of Civil Procedure, to place additional evidence on record. 10. Respondents in the said appeal being the defendants opposed the appeal grounds. 11. Learned Judge in the First Appellate Court after raising necessary points, heard the arguments of the parties and dismissed the appeal of the plaintiff inter-alia holding in paragraphs No.25 to 29 as under: "25 Though, the plaintiff has produced Ex.P11, the said partition deed dated 10.02.1975, but there is no corroborative or supportive document that, the said partition is acted upon. The document produced by the plaintiff as exhibits, in none of the documents, the name of the father of the plaintiff i.e., Mugegowda @ Ramegowda @ Madegowda or the name of the plaintiff is been mentioned. But the plaintiff has completely relied upon these documents to substantiate his case, which are in nowhere helpful to the case of the plaintiff. He has to substantiate his case with the document, which are supportive to his case. Though, the property stands in the name of his uncle Chikkaramegowda measuring 1 acre, - 6 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 why the name of Chikkaramegowda stands to the entire extent of 1 acre is not been substantiated. However, it is only stated that by oversight the name of Chikkaramegowda is entered to entire extent of land. This also self serving statement that, the oversight the name of plaintiff's uncle Chikkaramegowda is entered in the revenue records. But, he has not placed on record any mutation entry with regard to the entry of his uncle's name in the entire extent of 1 acre of land. 26. It is also relevant to note that, from the documents, it is not clear that 0-20 guntas in Sy.No.590/2 is allotted to his father. It is not clear in which part of Sy.No.590/2 the land is allotted to the plaintiff's father as It is not clear, the boundaries are not clear in Ex.P.11. basing upon which document the plaintiff has mentioned the boundaries in the suit schedule properties. As the said extent of 0-20 guntas of land with boundaries mentioned in the plaint schedule property is not been explained in any of the document placed by the plaintiff. Hence, it is not clear from the case of the plaintiff that, he is the absolute owner of suit schedule property basing upon the partition deed dated 10.2.1975 entered between his father and his uncle Chikkaramegowda. 27. The plaintiff contends that without his consent the revenue authorities changed the katha in the name of Chikkaramegowda, but it is relevant to note that he has not questioned the said act of the authorities. version of the plaintiff is not convincing. Hence, the said The case of - 7 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 the plaintiff is filled with self serving statement without any supportive material or evidence. Hence, the case is not proved by the plaintiff. 28. The trial court has appreciated the evidence on record and come to proper conclusion and dismiss the suit. But the observation of the trial court that the declaration of ownership cannot be claimed on the partition is not proper. As per the observation of the Hon'ble High Court of Karnataka (Kalburgi Bench (DB) in Venkat Vs. Anitha dated 17.12.2019. "18. This question has arisen incidentally as the learned counsel for plaintiffs argued by partition deed dated 29.06.2000.He raised two points, firstly that partition is not a transfer and therefore there cannot be declaration of title based on partition. He has relied upon a decision in the case of Aralappa (supra). It is amply clear that he raised this point to contend that the finding given on issue no.1 in O.S.54/2004 is not correct. It is fact that the plaintiffs who were defendants in the said suit did not file appeal questioning the decree therein, but they contend in this regard that they were not required to appeal as they were given liberty to file a separate suit seeking reopening of partition. Secondly as the said partition was not registered, and in view of central amendment to section 6 of the Hindu Succession Act, - 8 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 unregistered partition cannot be recognized and shares to the daughters of a coparcener cannot be denied. 19. In the case of Aralappa (supra), learned Single Judge of this High Court has held that since partition does not amount to transfer of property, and that no title is conveyed, declaration of title cannot be sought on the basis of partition. We find it difficult to accept the view of the learned Single Judge that one cannot seek declaration of title based on partition. The proposition that partition does not amount to transfer within the meaning of section 5 of the Transfer of Property Act is well accepted. Partition is only adjustment of shares between or among persons who are entitled to shares in the property. A share, which was undefined and indistinct, becomes definite partition takes place. 20. Also when a partition takes place, one sharer relinquishes the interest of another, thereby definite interest of each sharer is created. The shares get defined and for this reason registration of partition deed according to section 17 of the Indian Registration Act is compulsory. Whenever partition of self acquired or separate property of a Hindu takes place, absolute interest is created in each sharer and one can deal with the property in the way one likes, and when there is a threat to - 9 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 one's title, there is no bar for seeking declaration of title. 21. When a partition of ancestral property of Hindu Joint Family takes place, a member of a joint family entitled to a share takes it absolutely if on the date of partition, he has no son or daughter, and he continues to hold it absolutely till a son or daughter is born.But when there is threat to his title or to the branch he represents, he can either individually if he alone is the absolute owner, or representing his branch, bring a suit for declaration of title or for any other relief depending upon the circumstances. There is no any such prohibition." 29. Even basing upon the partition, the declaration can be claimed, if there is a infringement of right over the property, where the right has accrued in the partition. Under such circumstances, the party whose right is infringed can claim declaration on the partition. To that extent the observation of the trial court is erroneous, in view of the observation of the Hon'ble High Court of Karnataka. But the conclusion arrived by the trial court is proper and correct". - 10 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 12. Being further aggrieved by the same, plaintiff is before this Court in this appeal on the following grounds and substantial questions of law: GROUNDS: It is submitted that, both the Learned Judges erred in passing the impugned Judgments and Decree. Both the Judgment and Decree are liable to be set-aside. It is submitted that, both the Learned Judges erred in not considering factual aspects of the case. That both the Judgment and Decree of the court below is wholly erroneous, capricious besides the same being opposed to law and facts and probabilities of the case, calling for interference of this Hon'ble court. The oral and documentary evidence on record and the pleadings of the appellant and the admissions have not been appreciated by both the courts below in proper perspective. It is submitted that, both the impugned Judgment and Decree passed by the Trial Court and appellant court is opposed to law and facts and same is deserved to be set- aside. - 11 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 Both the Courts below grossly erred in not considering the Exhibits P-Series marked on behalf of the appellant which goes to establish that the appellant is the absolute owner of the suit schedule property. It is submitted that, by virtue of the Panchayath Palu Parikath dated 10.02.1975, the suit schedule property was fallen to the share of the appellant father. Accordingly the appellant father was in possession and enjoyment of the suit schedule property. It is submitted that, the trial court wrongly dismissed the suit, even though the appellant had produced the sufficient documents. Further the respondents have sold their share of 20 guntas out of 1 Acres. The remaining 20 guntas of Sy. No. 590/2 still remain with the appellant. Further after partition the RTC also changed in the name of the appellant father till 1991-1992. Both the Learned Judges erred in not considering this aspect. The Lower Courts not considered Ex.P.2 to 4 are the RTC's standing in the joint names of the father of the appellant namely Madegowda and Chikkaramegowda i.e., the uncle of the appellant. Hence the impugned judgment and decree passed by both the Courts are liable to be set- aside. It is submitted that, the learned appellate court erred in dismissing the appeal on the ground of delay in preferring the appeal. - 12 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 SUBSTANTIAL QUESTION OF LAW 1) Whether the Learned Trial Judge erred in dismissing the suit without considering the partition deed dated 10.02.1975? 2) Whether the appellate Court erred in dismissing the application filed under Order 41 Rule 27 of CPC? 3) Whether the appellate Judge erred in dismissing the appeal in R.A. no. 257/2021 by confirming the Judgment and decree dated 15.07.2020 in O.S. No. 503/20142 13. Sri. Harsha Kumar Gowda, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly appreciated the fact that at an disputed point of time, the suit property is a part of the joint family properties. 14. He further contended that in the year 1975, there was a partition by way of 'Palu Parikattu' as is - 13 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 evidenced by Ex.P11 between the father of the plaintiff and the father of the defendants. 15. Thereafter, revenue entries were mutated and parties enjoyed their respective portions of the suit properties uninterruptedly. 16. He would further contend that defendants with ill-motive sold their share of 0-20 guntas of land in Sy.No.590/2 vide Ex.P1 which is the certified copy of the sale deed executed by defendants in favour of the third parties and thereafter started interfering with the suit property which necessitated the filing of suit filed. 17. Learned Trial Judge and learned Judge in the First Appellate Court did not appreciate said aspect of the matter. But only on the ground that there was no boundaries mentioned in the Ex.P11, dismissed the suit of the plaintiff resulting in miscarriage of justice and sought for admitting the appeal for further consideration. - 14 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 19. Having heard the arguments of counsel for the appellant, this Court perused the material on record meticulously. 20. On such perusal of the material on record, no doubt Ex.P11 is the document under which the plaintiff claim that he is the owner of the suit property having got 0-20 guntas of land in Sy.No.590/2. 21. Pertinently, in Ex.P11, there is no mention as to out of Sy.No.590/2, which portion of the property has fallen to the share of the plaintiff. Further, no boundaries are also forth-coming in Ex.P11. 22. Plaintiff for the reasons best known did not choose to examine 'bajudar' or any other person to establish that suit property is the portion that has fallen to his share in the suit property and plaintiff is in actual possession. 23. Admittedly, on what basis, the plaintiff has furnished the boundaries to the suit property is not forth- - 15 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 coming on record, nor any material documents are placed on record to establish the identity of the suit property which has fallen to his share under Ex.P11 in Sy.No.590/2. 24. It is needless to emphasise that in respect of a declaratory relief, plaintiff has to establish his legal title over the suit property with cogent and convincing evidence on record. 25. In the case on hand, when the Trial Court dismissed the suit on the ground that there are no boundaries in Ex.P11, instead of placing additional evidence on record, plaintiff ought to have sought for amendment of plaint by furnishing necessary details and also placing on record cogent and convincing evidence. Such an attempt is not made by the plaintiff. 26. Mere production of additional documents did not improve the case of the plaintiff, having regard to inherent lacuna in not mentioning the boundaries in Ex.P11. Same is appreciated by the learned Judge in the - 16 - HC-KAR NC: 2025:KHC:38339 RSA No. 2100 of 2023 First Appellate Court while confirming the dismissal of the suit by the Trial Court. 27. In view of the foregoing reasons, having regard to the scope of the appeal under Section 100 of the Code of Civil Procedure, this Court is of the considered opinion that factual aspects need not be gone into and there is no legal issue involved for admitting the appeal for further consideration. 28. Hence, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 55 CT: BHK