- 1 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH 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. 100039 OF 2018 (PAR) BETWEEN: 1. SHRI. BHAGAWANT BHIMA NAGANUR AGE: 46 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 2. SHRI. ARIHANT BHIMA NAGANUR AGE: 44 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 3. SMT. CHANDRAWWA W/O BHIMA NAGANUR AGE: 63 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 4. SMT. GANGAWWA W/O RAYAPPA PARAMAGOND AGE: 39 YEARS, OCC: HOUSEHOLD R/O: ALAGUR, TAL: JAMAKHANDI, DIST:BAGALKOT-587301. 5. VENKATESH BHAGWANT NAGANUR AGE: 24 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 6. ABHINANDAN ARIHANT NAGANUR AGE: 18 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 7. AYUSH ARIHANT NAGANUR AGE: 09 YEARS, R/BY HIS MINOR GUARDIAN FATHER ARIHANT NAGANUR AGE: 44 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. …APPELLANTS (BY SMT. SHEETAL V. KILLEKAR AND SRI. PRASHANT F GOUDAR, ADVS ) AND: 1. SRI. MALLAPPA JINNAPPA NAGANUR AGE: 57 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 2. SRI. NEMANNA JINNAPPA NAGANUR SINCE DECEASED BY LR’S. 2A. SMT. PADMAVVA NEMMANNA NAGANUR, AGE: 54 YEARS, OCC: HOUSEHOLD, 2B. SHRI. BAHUBALI S/O NEMMANNA NAGANUR, AGE: 36 YEARS, OCC: SERVICE, 2C. SHRI. BHARATESH S/O NEMMANNA NAGANUR, AGE: 32 YEARS, OCC: SERVICE, RESPONDENTS NO.2(A TO C) ARE R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 3. SRI. BHUJAPPA JINAPPA NAGANUR AGE: 50 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 4. SMT. SHANTAWWA W/O ANNAPPA ALAGUR AGE: 66 YEARS, OCC: HOUSEHOLD, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 5. SRI. NEMANNA AVVANNA ALAGUR SINCE DEAD. BY LR’S., 5A. SRI. BHUPAL S/O NEMMANNA ALAGUR AGE: 64 YEARS, OCC: RETIRED, 5B. SMT. CHAMPAKKA W/O MANOHAR ARAGI AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: NANDGAON, TAL: ATHANI. 5C. SHRI. NARASAPPA S/O NEMMANNA ALAGUR, AGE: 58 YEARS, OCC: AGRICULTURE, 5D. SHRI. BHUJAPPA S/O NEMMANNA ALAGUR, AGE: 56 YEARS, OCC: AGRICULTURE, 5E. SHRI. CHANDRASHEKHAR S/O NEMMANNA ALAGUR, AGE: 50 YEARS, OCC: AGRICULTURE, 5F. SMT. SHOBHA W/O MALLAPPA KORIGERI AGE: 49 YEARS, OCC: HOUSEHOLD, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. 5G. SHRI. BAHUBALI S/O NEMMANNA ALAGUR, AGE: 48 YEARS, OCC: BANK EMPLOYEE, 5H. SMT. SAROJINI W/O MALAGOUDA PATIL, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: HEBBAL, TAL: HUKKERI. - 4 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 RESPONDENT NO. 5A, 5C, 5D, 5E, 5G ARE R/O: HARUGERI, TAL: RAIBAG DIST. BELAGAVI-591220. 6. SRI. NARASAPPA NEMANNA ALAGUR AGE: 36 YEARS, OCC: AGRICULTURE, R/O: HARUGERI, TAL: RAIBAG, DIST: BELAGAVI-591220. …RESPONDENTS (BY SRI. RAJASHEKHAR BURJI, ADV FOR C/R1 & R3 & R2 (A TO C), SRI. ANAND AHSTEKAR, ADV FOR R5 (A TO H), V/O DATED 18.02.2021 NOTICE TO R4 IS HELD SUFFICIENT, RESPONDENT NO.6 SERVED) THIS RFA IS FILED UNDER SEC. 96 OF CPC AGAINST THE JUDGMENT AND DECREE DTD:30.10.2017 PASSED IN O.S.NO.81/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC RAIBAG, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. 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 - 5 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and preliminary decree dated 30.10.2017 passed in O.S. No.81/2016 by the learned Senior Civil Judge and JMFC, Raibag. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellants were defendant Nos.1 to 7, respondent Nos.1 to 4 were the plaintiffs and the other respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that one Jinnappa was the original propositus. The said Jinnappa had 2 wives i.e. Gangavva (1st wife) and Gangavva (2nd wife). Jinnappa had a son through 1st wife Gangavva by name Bhimappa. Bhimappa married to - 6 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 Chandravva i.e. defendant No.3 and out of their wedlock, defendant Nos.1, 2 and 4 were born. The plaintiffs are the children born out of the wedlock of Jinappa and 2nd wife Gangavva. He had purchased the suit properties bearing R.S. No.58/2, 58/3 and 338/4 in the name of his minor son Bhimappa i.e. the father of defendant Nos.1, 2 and 4 from one Sundrawwa out of the joint family funds under registered sale deed dated 10.07.1948 and thereafter Jinnappa had thrown the properties into a common stock. Jinnapppa, the plaintiffs and father of defendant Nos.1, 2 and 4 were and are in possession of the suit schedule properties and there was no partition by metes and bounds between the plaintiffs and the defendants. It is contended that Bhimappa is an influential person and taking advantage of being the eldest son of Jinnappa, managed to create sham and colorable sale deeds in favour of defendant Nos.8 and 9, who are strangers to the family of the plaintiffs and defendant Nos.1 to 7, who managed to get their names entered in the Record of Rights concerning some of the properties. The plaintiffs and defendant Nos.1 to 7 are the members of Hindu - 7 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 undivided joint family and no partition is effected. The plaintiffs requested defendant Nos.1 to 7 to effect a partition but defendants Nos.1 to 7 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. Defendant Nos.1 to 7 filed a written statement denying the averments made in the plaint and it is contended that there was a partition between the plaintiffs and defendant Nos.1 to 7 in 1977. Father of defendant Nos.1, 2 and 4 sold the property bearing R.S.No.58/3 in favour of defendant No.8 under a registered sale deed dated 31.03.1987. Defendant No.8 is the owner and possessor of R.S. No.58/3. The suit filed by the plaintiffs is barred by limitation and is hit by non-joinder of necessary parties and prays to dismiss the suit against defendant Nos.1 to 7. 5. Defendant Nos.8 and 9 filed a written statement denying the averments made in the plaint. It is denied that the plaintiffs and defendant Nos.1 to 7 are the - 8 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 members of a Hindu undivided joint family and it is contended that the father of defendant Nos.1, 2 and 4 have alienated the suit property bearing R.S. No.58/3 for a valuable consideration under a registered sale deed dated 31.03.1987. Since the date of purchase, they have been in the possession and enjoyment of R.S. No.58/3. It is further contended that land bearing Sy.No.58/2 measuring 2 acres 22 guntas was the property of Ajit Dharmanna Aski and Ashoka Dharmanna Aski and they sold R.S. No.58/2 in favour of defendant No.9 for valuable consideration under a registered sale deed dated 15.07.2005. Defendant No.9 is in possession of R.S. No.58/2. Defendant Nos.8 and 9 are the bona fide purchasers for value of the suit properties bearing R.S. No.58/3 and 58/2, respectively. Hence, prays to dismiss the suit. 6. The trial Court based on the pleadings of the parties, framed the following issues and additional issues: ISSUES 1. Whether the plaintiffs prove that, the property in R.S.Nos.58/2, 58/3 and 338/4 - 9 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 purchased in the year 1984, by Jinnappa in the name of his minor son Bhimappa? 2. Whether the plaintiffs prove that, the properties are joint family properties? 3. Whether the plaintiffs prove that, they are children of 2nd wife of Jinappa by name Gangavva? 4. Whether the 2nd defendant proves that, there was a partition in the year 1977 as pleaded in para No.7 of written statement? 5. Whether the 2nd defendant proves that, his father Bhimappa sold the land in R.S.No.58/3 and 58/4 in favour of defendant No.8 on 31.03.1987? 6. Whether the suit is barred by law of limitation? 7. Whether the plaintiffs are entitled for share ? If so, what extent? 8. What order or decree ? ADDL. ISSUES 1. Whether the partition of the 1977 as acted upon ? 2. Whether the defendant Nos.8 and 9 are the bonafide purchasers of the properties as mentioned in their written statement ? 3. Whether the suit of the plaintiff is maintainable? 4. Whether the suit of the plaintiffs is bad for non-joinder and mis-joinder of the parties? - 10 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 5. Whether the plaintiffs have not included all the joint family properties in the plaint schedule ? 7. The plaintiffs to substantiate their case, plaintiff No.2 examined himself as PW.1, examined one witness as PW.2 and marked 7 documents as Exs.P-1 to P-7. In rebuttal, defendant No.2 was examined as DW.1 and defendant No.9 was examined as DW.2 and marked 65 documents as Exs.D-1 to D-65. 8. The trial Court after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue Nos.1, 3, 5 and additional issue No.2 in the affirmative, issue No.2 partly in the affirmative, issue Nos.4, 6 and additional issue Nos.1 and 3 to 5 in the negative, on issue No.7 held that plaintiff Nos.1 to 3 are entitled to 1/4th share each in the land bearing R.S. No.58/4 and R.S.No.266/2 of Harugeri village and issue No.8 as per the final order. The suit of the plaintiffs was partly decreed vide judgment dated 30.10.2017. It is declared that plaintiff Nos.1 to 3 are entitled to 1/4th share each and defendant Nos.1 to 4 are - 11 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 entitled to 1/16th share each in land bearing R.S. No.58/4 and 266/2 situated at Harugeri village. 9. Defendant Nos.1 to 7 aggrieved by the judgment and decree dated 30.10.2017 passed in O.S. No.81/2016, filed this regular first appeal. 10. Heard the learned counsel for defendant Nos.1 to 7 and the learned counsel for the plaintiffs. 11. Learned counsel Smt. Sheetal V. Killekar for defendant Nos.1 to 7 submits that there is a pleading in the plaint regarding R.S. No.58/4 and R.S. No.266/2 that the suit schedule properties are not the ancestral properties of the plaintiffs and the defendants. She also submits that there was a partition effected between the plaintiffs and the defendants in 1977 and the plaintiffs have sold the property fallen to their share i.e. in respect of R.S. No.266/2 measuring 11 acre 8 guntas to one Housavva Shankar Aski and Hanamant Parish Naganur. She submits that the said aspect was not considered by the Court below and committed an error in granting a share in R.S.No.58/4 and 266/2. She submits that R.S. - 12 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 Nos.58/4 and 266/2 are not the joint family properties as of the date of filing of the suit. She further submits that the plaintiffs have not included the properties bearing R.S. Nos.266, 267, 233, 234 and 231 which were owned and possessed by Jinnappa, the original propositus. She submits that the suit for partial partition is not maintainable. She further places reliance on the judgment of the Hon’ble Apex Court in S. Satnam Singh and Ors vs. Surnder Kaur and Anr1. She also further submits that the partition effected between the plaintiffs and the defendants was acted upon and their names were entered as per Mutation Entry dated 01.05.1977 and said mutation entry is not challenged by the plaintiffs. The said aspect was not considered by the Court below. Hence, the trial Court committed an error in passing the impugned judgment. Hence, on these grounds, she prays to allow the appeal. 12. Per contra, the learned counsel for the plaintiffs submits that Sy.Nos.58/4 and 266/2 are the joint family properties of the plaintiffs and the defendants and no 1 AIRAIR 2009 SUPREME COURT 1089 - 13 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 partition is effected between the plaintiffs and the defendants and they are the members of Hindu undivided joint family. The trial Court has rightly passed the impugned judgment. Hence, prays to dismiss the appeal. 13. Perused the records and considered the submissions of the learned counsel for the parties. 14. The points that arise for our consideration are: i) Whether the plaintiffs prove that R.S. Nos.58/4 and 266/2 are the joint family properties of the plaintiffs and the defendants? ii) Whether defendant Nos.1 to 7 prove that there was a prior partition between the plaintiffs and defendants and the parties have acted upon the partition? iii) Whether defendant Nos.1 to 7 prove that the judgment and decree passed by the trial Court is perverse and arbitrary? iv) What order or decree? 15. Point No.i): It is the case of the plaintiffs that one Jinnappa was the original propositus of the plaintiffs’ family and defendant Nos.1 to 7. He owned the properties - 14 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 bearing R.S. Nos.58/2, 58/3, 58/4 and 266/2 of Harugeri village, Raibag taluk. It is contended that Jinnappa died leaving behind the plaintiffs and the defendants and there is no partition effected between the plaintiffs and defendant Nos.1 to 7. 16. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1. He reiterated the plaint averments in the examination-in-chief and produced the documents, Exs.P-1 to 4 are the record of rights, Ex.P- 5 to 7 are the Mutation entry. During the course of cross-examination, it was suggested to PW.1 that there was a partition between the plaintiffs and defendant Nos.1 to 7 in 1977 and based on the oral partition, the mutation was effected and it was also suggested that the plaintiffs have sold R.S. No.266/2 in favour of Housavva Shankar Aski and Hanamant Parish Naganur. Though, PW.1 has denied that there was a prior partition between the plaintiffs and the defendants but admitted regarding the execution of a registered sale deed in favour of Housavva Shankar Aski and Hanamant Parish Naganur, however, PW.1 has not explained, in what capacity the plaintiffs - 15 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 have executed a registered sale deed in respect of Sy.No.266/2 in favour of Housavva Shankar Aski and Hanamant Parish Naganur. Further, PW.2 in the course of cross-examination had admitted that there was a prior partition in 1977 and by the partition, the respective parties were put in possession of their respective shares. 17. From the perusal of the contents of the plaint, the plaintiffs have not pleaded regarding the partition that took place between the plaintiffs and the defendants. Further, the plaintiffs have not pleaded as to how their family acquired R.S. No.58/4. In the absence of the pleadings, the trial Court has decreed the suit regarding R.S. No.58/4. The plaintiffs failed to prove that as on the date of filing of the suit, the plaintiffs and the defendants were members of the Hindu undivided joint family and further failed to establish that R.S. Nos.58/4 and 266/2 are the ancestral joint family properties of the plaintiffs and the defendants as there was severance of status. 18. In view of the above discussion, we answer point No.(i) in the negative. - 16 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 19. Point No.(ii): Defendant Nos.1 to 7 have taken a defence that there was a prior partition between the plaintiffs and defendant Nos.1 to 7. To establish that there was a prior partition, defendant No.2 was examined as DW.1. He reiterated the plaint averments and deposed that there was a prior partition between the plaintiffs and defendant Nos.1 to 7 and in the said partition, R.S. No.266/2 was allotted to the share of the plaintiffs and the plaintiffs sold R.S. No.266/2 in favour of Housavva Shankar Aski and Hanamant Parish Naganur. He has also deposed that based on the oral partition, the mutation was effected as per Ex.D-63. Further, to prove the defense of the defendants, the defendants produced the Record of Rights marked as Exs.D-1 to D-14 and mutation entry as per Exs.P-15 to P-19, Exs.D-20 to 23 are the certified copies of the registered sale deeds executed by defendants in favour of defendant Nos.8 and 9 and Exs.D- 24 to 45 are the record of rights, Ex.D-46 to 48 are the sale deeds, Exs.P-49 and 50 are the mutation entries, Exs.51 to 54 are the land revenue receipts, Exs.D-55 and 56 are the boundary certificates, Exs.D-57 and 58 are the - 17 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 KEB bills, Exs.59 and 60 are the photographs Ex.P-61 is the C.D., Ex.P-62 is the receipt, Ex.D-63 is ME No.610, Ex.D-64 is ME No.1825 and Ex.D-65 is MR No. 42/2005- 06. The father of defendant Nos.1, 2 and 4 sold R.S. No.58/3 in favour of defendant No.8 and defendant No.9 purchased the property bearing R.S. No.58/2. Defendant Nos.8 and 9 after verifying the records, they have purchased the properties. 20. From the perusal of the records, it disclose that there was a prior partition between the plaintiffs and the defendants and the parties have acted upon the partition and their names have been entered in the revenue records. The revenue records disclose prior partition and the said entries are corroborated by the evidence of PW.2, who has admitted that there was a prior partition between the plaintiffs and defendant Nos.1 to 7. The said aspect was not considered by the trial Court. Further, the plaintiffs have not pleaded as to how the family acquired Sy.No.58/4. The entries in the record of rights regarding the factum of partition is a relevant piece of documentary evidence in support of oral evidence given by PW.2. The - 18 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 said view is supported by the decision of the Hon’ble Apex Court in the case of Digambar Adhar Patil v. Devram Giridhar Patil (D) reported in AIR 1995 SC 1728. Defendant Nos.1 to 7 have proved that there was a prior partition between the plaintiffs and the defendants. The defendants have also proved that as of the date of the filing of the suit, the suit schedule properties were not the ancestral and joint family properties and the plaintiffs and defendants were not the members of Hindu undivided joint family. 21. In a suit for partition and separate possession, initially the burden is always on the plaintiffs to prove that the suit schedule properties are the ancestral/joint family properties. Admittedly, in the instant case, the plaintiffs have not produced any records to demonstrate that R.S.No.58/4 was the joint family property of the plaintiffs and defendant Nos.1 to 7. Insofar as Sy.No.266/2 is concerned, though the defendants have admitted that R.S.No.266/2 was the ancestral property of the plaintiffs and the defendants, as observed above, the defendants - 19 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 have proved that there was a prior partition between the plaintiffs and the defendants in 1977 and the plaintiffs have sold the property i.e. R.S. No.266/2 fallen to their share in favour of Housavva Shankar Aski and Hanamant Parish Naganur the said fact has not been disputed by the plaintiffs. Hence, Sy.No.266/2 was not available for partition. The plaintiffs have not approached the Court with clean hands. The plaintiffs colluded and suppressed all the material facts. The trial Court, without considering the said aspect has proceeded to pass the impugned judgment. The impugned judgment passed by the trial Court is contrary to the records produced by the defendants. The defendants by producing the mutation extracts and revenue records and the admission of PW.2 prove that there was a prior partition between the plaintiffs and the defendants and defendants 8 and 9 are the bona fide purchasers for value in respect of Sy.Nos.58/2 and 58/3. The trial Court has not granted any share regarding Sy.No.58/2 and 58/3. The plaintiffs have not challenged the impugned judgment passed by - 20 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 the trial Court and the finding recorded by the trial court regarding Sy.No.58/2 and 58/3 has attained finality. 22. In view of the above discussion, we answer point No.(ii) in the affirmative. 23. Point No.(iii): The trial Court without considering the documents produced by the defendants to establish that there was a prior partition between the plaintiffs and defendants 1 to 7 and also without considering the fact that how the family of the plaintiffs and defendants 1 to 7 have acquired Sy.No.58/4 and also the revenue records, committed an error in decreeing the suit regarding R.S. Nos.58/4 and 266/2. The judgment and decree passed by the trial Court is arbitrary, erroneous and contrary to the records and the impugned judgment is liable to be set aside. 24. In view of the above discussion, we answer point No.(iii) in the affirmative. 25. Point No.(iv): As we have already discussed point Nos.(i) to (iii) in favour of the defendants, we proceed to pass the following: - 21 - NC: 2025:KHC-D:1444-DB RFA No. 100039 of 2018 ORDER The appeal is allowed. The judgment and preliminary decree dated 30.10.2017 passed in O.S. No.81/2016 by the learned Senior Civil Judge and JMFC, Raibag, is set aside. Consequently, the suit of the plaintiffs is dismissed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB