- 1 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100023 OF 2020 (PAR/POS) BETWEEN: 1. RENUKAVVA, W/O. AJJAPPA JALAGAR AGE: 44 YEARS, OCC: COOLIE, R/O: BAGILAVAR ONI, KRUBAGERI, RANEBENNUR, NOW R/AT: MEDLERI, RANEBENNUR-581115, TQ: RANEBENNUR, DIST: HAVERI. 2. ASHWINI, D/O. AJJAPPA JALAGAR AGE: 21 YEARS, OCC: COOLIE, R/O: BAGILAVAR ONI, KRUBAGERI, RANEBENNUR, NOW R/AT: MEDLERI, RANEBENNUR-581115, TQ: RANEBENNUR, DIST: HAVERI. …APPELLANTS (BY SRI. PRUTHVI K.S, ADV) AND: 1. AJJAYYA @ AJJAPPA S/O. NAGAPPA JALAGAR AGE: 52 YEARS, OCC: AGRICULTURE, R/O: BAGILAVAR ONI, KRUBAGERI, RANEBENNUR-581115 TQ: RANEBENNUR, DIST: HAVERI. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 2. BHEEMAPPA, S/O. NAGAPPA JALAGAR AGE: 50 YEARS, OCC: AGRICULTURE, R/O: BAGILAVAR ONI, KRUBAGERI, RANEBENNUR-581115 TQ: RANEBENNUR, DIST: HAVERI. …RESPONDENTS (BY SRI. N. R. KUPPELUR, ADV FOR R2. R1 SERVED) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:03.12.2019 PASSED IN O.S.NO.15/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, RANEBENNUR, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC. 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 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) The regular first appeal is filed challenging the judgment and preliminary decree dated 03.12.2019 passed in O.S. No.15/2018 by the learned II Additional Senior Civil Judge, Ranebennur. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellants - 3 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 were the plaintiffs and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as under: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that, plaintiff No.1 is the wife of defendant No.1 and plaintiff No.2 is their daughter. One Nagappa was the original propositus of their family. He died long back. He had a wife by name Kenchavva. She also died leaving behind defendant Nos.1 and 2. It is contended that Ramavva and Gangavva are the daughters of the original propositus. They are married and living in their matrimonial house. It is contended that the marriage of plaintiff No.1 with defendant No.1 was performed about 22 years back. Out of their wedlock, plaintiff No.2 was born to them. Plaintiff No.1 and defendant No.1 led married life for about 8 years in Ranebennur. Defendant No.1, at the instigation of defendant No.2, completely neglected to - 4 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 maintain the plaintiffs. It is contended that, suit ‘B’ schedule properties were acquired by defendant Nos.1 and 2 on 07.04.1992 from other previous vendees Shankrappa, Basappa, and Anusuyabai. At the time of purchase of the suit property, the defendants father was not alive. ‘B’ schedule properties are the self acquired properties of defendant Nos.1 and 2. Defendant No.1 neglected to maintain the plaintiffs, and 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. The trial Court issued summons to the defendants. Though, the defendants appeared through their counsel, but they did not file their written statement. 5. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW.1 and marked 8 documents as Exs.P-1 to P-8. The defendants did not cross-examine PW.1. - 5 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 6. The trial Court, after hearing the learned counsel for the plaintiffs, framed the points for consideration reproduce the points for consideration: Issues 1. Whether the plaintiffs prove that, the suit schedule properties are joint family properties of parties to the suit and no partition was effected in between them? 2. What order? 7. On the assessment of the oral and documentary evidence, answered Point No.1 in the negative, Point No.2 as per the final order. The suit of the plaintiff was dismissed with cost vide judgment dated 03.12.2019. 8. The plaintiffs, aggrieved by the judgment and preliminary decree dated 03.12.2019, passed in O.S. No.15/2018, filed this regular first appeal. 9. Heard the learned counsel for the plaintiffs. 10. Learned counsel for the plaintiffs submits that, the trial Court has committed an error in dismissing the suit of the plaintiffs. He submits that, the trial Court has failed - 6 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 to examine Ex.P-2 wherein, it is specifically stated that, all the legal representatives are entitled to the suit schedule ‘B’ properties and further, Beerappa died issueless. He submits that, the trial Court committed an error in recording a finding that, the suit filed by the plaintiff is not maintainable. The impugned judgment passed by the trial Court is perverse, arbitrary, and erroneous. Hence, on these grounds, he prays to allow the appeal. 11. Perused the records and considered the submissions of the learned counsel for the plaintiffs. 12. The points that arise for consideration are : i) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and arbitrary? and ii) What order? 13. Point No.(i): It is the case of the plaintiffs that, the suit schedule ‘B’ properties are the properties purchased by defendant Nos.1 and 2 on 07.04.1992. The suit - 7 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 schedule ‘B’ properties are the self-acquired properties of defendant No.1 and 2. Admittedly, the plaintiffs have filed a suit for partition and separate possession. In a suit for a partition and separate possession, the initial burden is always on the plaintiff to prove the relationship between the parties, and the nature of the suit schedule properties. The plaintiffs, themselves, have contended in the plaint and in the examination-in-chief that, the suit schedule ‘B’ properties are the self-acquired properties of defendant Nos.1 and 2. Admittedly, defendant Nos.1 and 2 are alive. During their lifetime, the plaintiffs cannot claim a partition in the self-acquired properties of defendant Nos.1 and 2. The trial Court, taking into consideration the averments made in the plaint and in the examination-in-chief, has rightly held that, the suit schedule ‘B’ properties are not the joint family properties of the plaintiffs and the defendants, and rightly held that, the plaintiffs are not entitled to a share in the suit schedule properties, and the suit filed by the plaintiffs is not maintainable. The trial Court was justified in recording a finding that, the suit schedule - 8 - NC: 2025:KHC-D:1288-DB RFA No. 100023 of 2020 properties are not the joint family properties, and the plaintiffs are not entitled to a share in the ‘B’ schedule property and rightly dismissed the suit. 14. We do not find any error in the impugned judgment. Accordingly, we answer Point No.(i) in the negative. 15. Point No.(ii): As we have already answered point No.1, we proceed to pass the following ORDER The appeal is dismissed. The judgment and preliminary decree dated 03.12.2019 passed in O.S. No.15/2018 by the learned II Additional Senior Civil Judge, Ranebennur, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB