- 1 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1775 OF 2016 (PAR) BETWEEN: N. RAMESH S/O LATE NINGE GOWDA, AGED 57 YEARS, R/AT NO. 13, 1ST CROSS, R.K. STREET, SHESHADRIPURAM, BANGALORE - 560 020. …APPELLANT (BY SRI. M. GANESH, ADVOCATE) AND: 1. SMT. SAVITHRAMMA W/O LATE NINGE GOWDA, AGED 76 YEARS, 2. PARAMESHA S/O LATE NINGE GOWDA, AGED 55 YEARS, 3. UMESHA S/O LATE NINGE GOWDA, AGED 50 YEARS, RESPONDENTS NO. 1 TO 3 RESIDING AT RAMEGOWDANA DPDDI, HANIYAR DAKALE, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 SINGARAJIPURA POST, CHANNAPATNA TALUK, RAMANAGARA DISTRICT. 4. SUSHEELAMMA W/O LATE PUTTANKEGOWDA, AGED 64 YEARS, RESIDING AT SOREKAL DODDI, SATHNUR POST, SATHNUR HOBLI, KANAKAPURA TALUK. 5. SMT. THAYAMMA W/O GANGANNA, AGED 52 YEARS, RESIDING AT ARALASANDRA POST, VIRUPAKSHAPURA POST, VIRUPAKSHAPURA HOBLI, CHANNAPATNA TALUK, RAMANAGARA DISTRICT. …RESPONDENTS (BY SRI. A. VIJAY KUMAR BHAT, ADVOCATE FOR R3; R1, R2, R4 AND R5 ARE SERVED) THIS RSA IS FILED UNDER SEC.100 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.09.2016 PASSED IN RA.NO.41/2013 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE RAMANAGARA, REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.04.2013 PASSED IN OS. NO.49/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., RAMANAGARA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 01.09.2016, passed in R.A.No.41/2013 by the learned I Additional District and Sessions Judge, Ramanagara, and the judgment and decree dated 24.04.2013, passed in O.S.No.49/2010 by the learned Prl. Senior Civil Judge and CJM, Ramanagara. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the 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 - 4 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 plaintiff that, the suit schedule properties originally belonged to one Rame Gowda and after his death, the properties devolved upon his sons. They divided the properties in 1981 and to that effect, katha was effected. The suit properties fell to the share of the plaintiff’s father namely, Ninge Gowda. It is contended that the suit schedule properties were the ancestral and joint family property of the plaintiff and the defendants. The plaintiff and the defendants are members of the Hindu Undivided Family, and no partition has been effected between the parties to the suit by metes and bounds. The plaintiff demanded partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to decree the suit. 3.1. The defendants filed a written statement admitting the relationship contending that there was a prior partition between the plaintiff and the defendants on - 5 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 01.07.1998, and the plaintiffs had taken a legitimate share in the suit schedule properties. It is contended that the suit schedule properties are not ancestral and joint family properties as of the date of filing the suit, and there has been a severance of status. Accordingly, he prays to dismiss the suit. 3.2. The Trial Court, based on the aforementioned pleadings, framed the relevant issues. 3.3. The plaintiff, to substantiate his case, the plaintiff was examined as PW.1, and 13 documents were marked as Exs.P1 to P13. In rebuttal, defendant No.3 was examined as DW.1, and one document was marked as Ex.D1. The trial Court, after recording the evidence, hearing on both sides, and after assessing the verbal and documentary evidence of the parties, answered issue Nos.1 and 4 in negative, issue Nos.2 and 3 in the affirmative, and issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated - 6 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 24.04.2013. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.49/2010 preferred an appeal in R.A.No.41/2013 on the file of the learned I Additional District and Sessions Court, Ramanagara. 3.4. The First Appellate Court, after hearing the learned counsel for the parties, framed the relevant points for consideration. 3.5. The First Appellate Court, on hearing the parties, and after reassessing the verbal and documentary evidence, answered point Nos.1 and 2 in the negative, and point No.3 as per the final order. The appeal was rejected vide judgment dated 01.09.2016, and the application in I.A.No.3 filed by the plaintiff under Order 41 Rule 27 of CPC was also rejected. 3.6. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal. - 7 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 4. Heard the arguments of the learned counsel for the plaintiff. 5. Learned counsel for the plaintiff submits that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants by metes and bounds. He submits that the trial Court committed an error in dismissing the suit solely on the ground that there is a recital in Ex.D1 regarding the partition. He submits that the properties agreed for a sale under Ex.D1 are not the subject matter of the suit schedule properties. He submits that both the courts below have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal. 6. The plaintiff has contended that suit schedule properties are ancestral and joint family properties. The defendants have taken the defence that there was a prior partition between the plaintiff and the defendants and, - 8 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 accordingly, on 08.09.2005, the plaintiff sold one of the properties under Ex.D1 and there is a recital in Ex.D1 that the suit schedule properties in Ex.D1, that the property came to the plaintiff’s share in the partition. The said recital in Ex.D1 is sufficient to hold that there was a prior partition between the plaintiff and the defendants and, as on the date of filing a suit for partition, the said properties were not the joint family properties and the plaintiff and the defendants were not the members of a Hindu Undivided Family. Both the courts below were justified in passing the impugned judgments. 7. The plaintiff filed an application I.A.No.1/2016 for the production of additional evidence. In support of the application, the appellant/plaintiff filed an affidavit stating that the suit schedule properties, viz., all the piece and parcel of the agricultural land bearing Sy.No.64, Maradevanahalli, Sathanur Hobli, Kanakapura Taluk, Ramanagara District and other properties are the ancestral properties and joint family properties of the plaintiff and - 9 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 the defendants. The plaintiff and the defendants constitute a joint Hindu Undivided Family and the suit schedule properties originally belonged to one Rame Gowda. After his death, interest in the suit schedule properties devolved to Dodde Gowda, Linge Gowda @ Kulle Gowda, Cheluve Gowda, Kenche Gowda and Ramalinge Gowda. After the demise of Rame Gowda, the children of the late Rame Gowda effected a partition in 1981. Pursuant to partition effected katha was effected, and their names were entered in the RTC extract. The suit schedule properties fell to the share of Ninge Gowda. Ninge Gowda passed away on 06.01.2008, leaving behind the plaintiff and defendant No.1 to 5. It is contended that the trial Court dismissed the suit relying on the sale agreement dated 08.09.2005, which was produced by the defendants No.1 i.e., marked as Ex.D1. It is contended that the property referred to in Ex.D1 is neither the joint family property of the plaintiff and the defendants nor the properties belonging to the - 10 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 plaintiff. Hence, he produced the RTC extract for the year 2005-06 with this application. 8. The plaintiff has filed a suit for partition and separate possession. The initial burden is always on the plaintiff to establish that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. The documents produced along with the application is the RTC, which was in existence at the time of filing the suit. The plaintiff did not file the said document before the trial Court and the First Appellate Court. Further, the plaintiff has not explained the reasons for not producing the said document before the courts below, despite the due diligence. The object of Order 41 Rule 27 of the CPC is not to fill up the lacuna in view of the law laid down by the Hon'ble Apex Court in the case of N. KAMALAM (DEAD) AND ANR VS AYYASAMY & ANR. Reported in (2001)7 SCC 503. The plaintiff has not fulfilled the requirements of Order 41 Rule 27 of the CPC. Hence, I do not find any error in the impugned judgments, and any - 11 - HC-KAR NC: 2025:KHC:26824 RSA No. 1775 of 2016 substantial question of law that arises for consideration in this appeal. 9. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER The Regular Second Appeal is dismissed. The judgments and decree passed by the courts below are hereby confirmed. No order as to the costs. I.A.No.1/2016 is hereby rejected. In view of the dismissal of the appeal, I.A.No.2/2016 does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB CT: BHK