- 1 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1718 OF 2015 (PAR) BETWEEN: 1. SRI MANJAPPA @ G. MANJUNATH, S/O GOWDAPLA HANUMANTHAPPA, AGED ABOUT 59 YEARS. 2. SMT. MEENAKSHAMMA W/O LATE SHAMBULINGAPPA, AGED ABOUT 45 YEARS. 3. SMT. SHILPA D/O LATE SHAMBULINGAPPA, AGED ABOUT 25 YEARS. 4. SMT. VASANTHAMMA W/O LATE KARIBASAPPA, AGED ABOUT 37 YEARS. 5. KUM. AKSHATHA D/O LATE KARIBASAPPA, AGED ABOUT 13 YEARS. 6. MASTER AKASH AGED ABOUT 12 YEARS. APPELLANTS 5 & 6 ARE MORS, REPRESENTED BY THEIR NATURAL GUARDIAN - MOTHER - APPELLANT NO.4. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 ALL ARE RESIDENT OF HALASABALU VILLAGE HARIHARA TALUK, DAVANAGERE DISTRICT-577601. …APPELLANTS (BY SRI. V B SIDDARAMAIAH., ADVOCATE) AND: 1. SMT RATHNAMMA D/O LATE DYAVAMMA, W/O HANUMANTHAIAH S, AGED ABOUT 62 YEARS, R/O HALEBATHI VILLAGE - 577 001, DAVANAGERE TALUK & DIST. 2. SMT DYAMAKKA W/O VEERABHADRAPPA, AGED ABOUT 65 YEARS, R/O HANAGAWADI VILLAGE, HARIHAR TALUK - 577 601, DAVANAGERE DISTRICT. 3. SMT MANJAMMA W/O SHIVAMURTHAIAH, AGED ABOUT 63 YEARS, R/O HALEBATHI VILLAGE - 577 001, DAVANAGERE TALUK, DAVANAGERE DISTRICT. 4. SRI S SIDDAPPA S/O DODDAVEERAPPA, AGED ABOUT 67 YEARS, R/O HANAGAWADI VILLAGE, HARIHAR TALUK - 577 601, DAVANAGERE DIST. - 3 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 5. SRI ANNAPPA MAHADEVAPPA GUTTUR S/O MAHADEVAPPA, AGED ABOUT 52 YEARS. 6. SRI HALESHAPPA S/O MAHADEVAPPA PUJAR, AGED ABOUT 57 YEARS. 7. SMT NINGAMMA W/O LATE MAHADEVAPPA, AGED ABOUT 66 YEARS. SINCE DECEASED, R8 TO 12 ARE TREATED AS L.Rs OF R7. (AMENDED ON 4.6.2024) (VIDE ORDER DATED 16.08.2019) 8. SRI GURUBASAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 56 YEARS. 9. SRI KOTRAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 51 YEARS. 10. SRI HALESHAPPA W/O LATE MAHADEVAPPA, AGED ABOUT 66 YEARS. 11. SRI ANNAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 47 YEARS. 12. SRI DUNDI BASAPPA S/O LATE MAHADEVAPPA, AGED ABOUT 45 YEARS. - 4 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 R-5 TO R-12 ARE R/O KODIYALA HOSPET VILLAGE, RANEBENNUR TALUK-581115, HAVERI DISTRICT. 13. SRI DYAVAPPA S/O HANUMANTHAPPA, AGED ABOUT 75 YEARS, R/O HALASABALU VILLAGE, HARIHAR TALUKA-577601, DAVANAGERE DISTRICT. 14. SMT BASAMMA W/O BASAPPA, AGED ABOUT 67 YEARS, R/O HALASABALU VILLAGE, HARIHAR TALUKA-577601, DAVANAGERE DISTRICT. …RESPONDENTS (BY SRI G.M.CHANDRASHEKAR, ADVOCATE FOR R1, RESPONDENTS No.2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13 & 14 ARE SERVED, VIDE ORDER DATED 16.08.2019 R8-12 ARE TREATED AS L.Rs. OF DECEASED R7) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.07.2015 PASSED IN R.A.NO.50/2013 ON THE FILE OF THE II ADDL. DISTRICT & SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMED THE ORDER DATED 02.04.2013 PASSED IN O.S.NO.49/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 5 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 ORAL JUDGMENT This appeal is preferred by the defendants No.3 to 8 assailing the judgment and decree dated 06.07.2015 in RA No.50/2013 on the file of the II Addl. District and Sessions Judge at Davanagere, dismissing the appeal and confirming the judgment and decree dated 02.04.2013 in OS No.49/2008 on the file of the Senior Civil Judge, Harihar, decreeing the suit of the plaintiff in part. 2. For the sake of convenience, the parties are referred to their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff and defendants No.1 to 3, and the father of the defendant No.5 - Shambulingappa, and father of the defendants No.7 and 8 - Karibasappa are the children of Goudaplar Hanumanthappa and Dyavamma. It is further stated that the plaintiff is having a share in the suit schedule property, which belonged to the mother of the plaintiff - Dyavamma, and as such, the plaintiff has filed OS No.49/2008 before the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties. - 6 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 4. After service of notice, the defendants entered appearance and filed detailed written statement, and have taken up a specific plea with regard to the earlier partition said to have been executed between the father of the defendants No.1 to 3 and the plaintiff on 23.11.1998, and thereafter, there was subsequent interse partition between defendants No.2 and 3 on 21.05.2002. Accordingly, sought for dismissal of the suit. 5. The Trial Court based on pleadings on record formulated the issues and additional issues for its consideration. 6. In order to establish their case, the plaintiff examined herself as PW.1 and got marked twelve documents as Exs.P1 to P12. The defendants have examined one witness as DW1 and got marked 29 documents as Exs.D1 to D29. 7. The Trial Court after considering the material on record, by judgment and decree dated 02.04.2013, decreed the suit in part. Feeling aggrieved by the same, the defendants have preferred RA No.50/2013 before the First Appellate Court. The said appeal was resisted by the plaintiff and the remaining defendants before the First Appellate Court. - 7 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 The First Appellate Court after re-appreciating the material on record, by judgment and decree dated 06.07.2015, dismissed the appeal. Feeling aggrieved by the same, the defendants No.3 to 8 have preferred this Regular Second Appeal. 8. This Court, vide order dated 11.01.2017, has formulated the following substantial question of law: "Whether the First Appellate Court has committed any serious legal error in disposing of the appeal without passing any order on the application filed by the appellant therein, to bring the LRs. of the 7th respondent on record? 9. Heard Sri V B Siddaramaiah, learned counsel appearing for the appellants herein, and Sri G M Chandrashekar, learned counsel appearing for the respondent No.1 herein. 10. Sri V B Siddaramaiah, learned counsel appearing for the appellants argued that, the partition had taken place in the joint family of plaintiff and defendants on 23.11.1998 as per Ex.D1. The said aspect was ignored by both the Courts below, and accordingly sought for interference of this Court. It is also argued by the learned counsel appearing for the appellants herein, by inviting attention of the Court to the application in - 8 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 I.A.No.3/2024 by referring to the documents produced with regard to the earlier partition between the plaintiff and the defendants. It is also argued by the learned counsel appearing for the appellants herein by referring to the application filed before the First Appellate Court to bring the L.Rs of the deceased respondent No.7 - Mahadevappa/defendant No.12 in the suit. 11. It is argued that despite the application is filed to bring the L.Rs of the deceased defendant No.12 before the Trial Court (respondent No.7 in RA No.50/2013), however, the said application has not been considered by the First Appellate Court, and therefore, it is contended by the learned counsel appearing for the appellants that the finding recorded by the First Appellate Court requires to be interfered with in this appeal. 12. Per contra, Sri G M Chandrashekar, learned counsel for the respondent No.1 sought to justify the impugned judgment and decree passed by the First Appellate Court. 13. Having taken note of the submissions of the learned counsel appearing for the parties, and the substantial question - 9 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 of law referred to above, wherein I have carefully examined the records of the First Appellate Court. The appellants therein filed an application to bring the L.Rs of the deceased defendant No.12 in the suit, on 31.10.2014, and a memo was filed to that effect on 17.01.2015. It is also forthcoming from the records that notice was ordered to the L.Rs of the respondent No.7 in RA No.50/2013. Having taken note of the factual aspect of the suit filed by the plaintiff seeking relief of partition and separate possession in respect of the suit schedule properties, and the contesting defendants have taken up a plea with regard to the earlier partition said to have been held on 23.11.1998 (Ex.D1), and the subsequent interse partition taken place between defendant No.3 and the legal heirs of Karibasappa on 21.05.2002 (Ex.D2), I am of the opinion that the First Appellate Court ought to have passed an order with regard to the application filed by the appellants therein to bring the L.Rs of the deceased defendant No.12 (respondent No.7 in RA No.50/2013). 14. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellants herein, and without going into the merits of the - 10 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 case, it is a fit case to remand the matter to the First Appellate Court to re-consider the matter afresh after allowing the application filed by the appellants therein to bring the L.Rs of the deceased defendant No.12 (respondent No.7 in RA No.50/2013) and pass appropriate order in accordance with law. Therefore, the substantial question of law referred to above favours the appellants herein. In the result, I pass the following: ORDER i) The appeal is allowed; ii) The judgment and decree dated 06.07.2015 passed in RA No.50/2013 on the file of the II Addl. District and Sessions Judge at Davanagere is hereby set aside, and the matter is remitted to the First Appellate Court for reconsidering the appeal on merits along with the application filed by the appellants herein in view of I.A.No.3/2024 filed by the appellants under Order 41 Rule 27 of CPC. iii) The First Appellate Court is directed to take a decision in the matter in accordance with law. In view of allowing the appeal by remitting the matter to the First - 11 - HC-KAR NC: 2025:KHC:34261 RSA No. 1718 of 2015 Appellate Court for fresh consideration, no further order requires to be made on I.A.No.2/2024. Since the parties are served and represented through their learned counsel, and in order to avoid further delay in the matter, they are directed to appear before the First Appellate Court on 15.10.2025 at 11.00 a.m. SD/- (E.S.INDIRESH) JUDGE BKM List No.: 1 Sl No.: 46