- 1 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100281 OF 2020 (PAR-) BETWEEN: MALLIKARJUNAPPA S/O. CHANNAPPA BIDARI, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: KONANATALI, TQ : RANEBENNUR, DIST: HAVERI-581115. …APPELLANT (BY SRI. S.G. KADADAKATTI, ADVOCATE) AND: 1. SMT. SUSHILAMMA W/O. BASAPPA KONDAJJI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: HOLEANVERI, TQ: RANEBENNUR, DIST: HAVERI-581115. RUDRAPPA S/O. DYAVAPPA BIDARI, SINCE DEAD BY HIS LRS 2. SMT. LATHA W/O. RUDRAPPA BIDARI, AGE: 42 YEARS, OCC: COOLIE, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. 3. KUM. KAVYA D/O. RUDRAPPA BIDARI, AGE: 27 YEARS, OCC: STUDENT, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. 4. KUM. KARTIK S/O. RUDRAPPA BIDARI, AGE: 22 YEARS, OCC: STUDENT, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:17 +0530 - 2 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 5. KUM. KOUSHALYA D/O. RUDRAPPA BIDARI, AGE: 24 YEARS, OCC: STUDENT, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. (SINCE RESPONDENT NO.4 AND 5 ARE MINORS R/BY THEIR M/G MOTHER SMT. LATHA W/O. RUDRAPPA BIDARI, AGE: 42 YEARS, OCC: COOLIE, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115.) 6. SMT. SHANTAVVA W/O. DYAVAPPA BIDARI, AGE: 66 YEARS, OCC: HOTEL BUSINESS, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. 7. HOLABASAPPA S/O. CHANNAPPA BIDARI, AGE: 64 YEARS, OCC: AGRICULTURE, R/O: KONANATALI, TQ: RANEBENNUR, DIST: HAVERI-581115. …RESPONDENTS (BY SRI. S.N. BANAKAR, ADVOCATE FOR R1-R6; SRI. GIRISH S. HIREMATH, ADVOCATE FOR R7) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 02.01.2020 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR IN R.A.NO.112/2013 BY MODIFYING THE JUDGMENT AND DECREE DATED 30.09.2013 PASSED BY THE PRINCIPAL CIVIL JUDGE AND I ADDITIONAL JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR IN O.S. NO.34/2008 AS PRAYED FOR BY ALLOWING THIS APPEAL. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 ORAL JUDGMENT This appeal is preferred by the defendant No.3 assailing the judgment and decree dated 02.01.2020 in R.A.No.112/2013 on the file of the Principal Senior Civil Judge and JMFC, Ranebennur (for short “the First Appellate Court”) modifying the shares and confirming the judgment and decree dated 30.09.2013 in O.S.No.34/2008 on the file of the Principal Civil Judge and Additional JMFC Court, Ranebennur decreeing the suit of the plaintiff in part. 2. The parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiffs that the plaintiff No.3 is the legally wedded wife of defendant No.1. Plaintiff No.1 and 2 are the children of defendant No.1 and plaintiff No.3. Defendant No.2 and 3 are the brothers of defendant No.1. It is the case of the plaintiffs that, the suit properties are the joint family properties of the plaintiffs and defendant No.1, which fallen to the share of defendant No.1 in partition. It is also stated that originally suit schedule properties are belonging to the original propositus/Channappa Bidari (father of the - 4 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 defendants). It is stated that the defendant No.1, at the instigation of defendant No.2 and 3, has neglected to look after the plaintiffs and accordingly, defendant No.2 and 3 to defraud the share of the plaintiffs, instigated the defendant No.1 to mortgage the suit schedule properties in favour of the bank and societies. It is also stated that the defendant No.3 has illegally purchased the suit schedule properties from defendant No.1 as per the registered sale deed dated 09.03.2007 and the said sale deed is not binding on the plaintiffs and accordingly, the plaintiffs have filed O.S.No.34/2008 seeking relief of partition and separate possession in respect of the suit schedule properties. 3.1. After service of notice, the defendants entered appearance. Defendant No.1 filed a separate written statement admitting the relationship with the plaintiffs. It is the case of the defendant No.1 that plaintiff No.3 was never residing with the defendant No.1 and has not taken care of the needs of the defendant No.1. Accordingly, defendant No.1 sought for dismissal of the suit. - 5 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 3.2. Defendant No.2 and 3 have filed written statement contending that the defendant No.1 was neglected by the plaintiffs and that apart, defendant No.1 has sold the suit schedule properties in favour of defendant No.3 for legal necessity and therefore, sought for dismissal of the suit. 3.3. The Trial Court based on the pleadings of the parties, formulated issues for consideration. In order to establish their case, the plaintiffs examined two witnesses as PW1 and PW2 and produced 6 documents, which were marked as Ex.P1 to Ex.P6. The defendants have examined 4 witnesses as DW1 to DW4 and produced 14 documents, which were marked as Ex.D1 to Ex.D14. The Trial Court, after considering the material on record, by its judgment and decree dated 03.09.2013 decreed the suit in part. Feeling aggrieved by the same, the defendant No.2 and 3 have filed R.A.No.112/2013 and the said appeal was resisted by the plaintiffs. 3.4. The First Appellate Court, after considering the material on record, by its judgment and decree dated 02.01.2020 dismissed the appeal consequently confirming the judgment and decree in O.S.No.34/2008, however, modified - 6 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 the shares of the parties. Feeling aggrieved by the same, the defendant No.3 has preferred this Regular Second Appeal. 4. I have heard Sri. S.G.Kadadakatti, learned counsel appearing for the appellants and Sri. S.N.Banakar learned counsel for respondent No.1 to 6 and Sri.Girish S Hiremath, learned counsel appearing for the respondent No.7. 5. Sri. S.G.Kadadakatti, learned counsel appearing for the appellant-defendant No.3 contended that the defendant No.1 sold the suit schedule properties in favour of defendant No.3 for valuable consideration and sale was made for legal necessities of the family and therefore, sought for interference of this Court. It is also contended by the learned counsel for the appellant that the plaintiffs never took care of the needs of the defendant No.1 and therefore, the suit itself is not maintainable and accordingly, sought for dismissal of the suit. 6. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and award passed by the Courts below. 7. In the light of the submissions made by the learned counsel appearing for the parties, the plaintiffs have filed suit - 7 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 seeking relief of partition and separate possession in respect of the suit schedule properties. In order to understand the relationship between the parties, the genealogy of the parties is re-produced, which reads as under: Channappa Bidari 1) Dyavappa 2) Holebasappa 3) Mallikarjunappa (D-1) (D-2) (D-3) Shantavva (wife of D-1) (Plft-3) 1)Sushilavva 2) Rudrappa (Dead) (Plft-1) (Plft-2) 1) Smt. Lata 2) Kavya 3) Kartik 4) Koushalya (Pltf-2A) (Pltf-2B) (Pltf-2C) (Pltf-2D) 8. Perusal of the genealogy would indicate that the defendants are the brothers. Plaintiff No.1 and 2 were born in wedlock of defendant No.1 and plaintiff No.3. It is also to be noted that the suit schedule properties are originally belonging to Channappa Bidari and there was a partition in the joint family properties of Channappa Bidari and his children and the schedule properties were fallen to the share of defendant No.1. - 8 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 It is also forthcoming from the finding recorded by both the Courts below that the plaintiffs were residing separately from defendant No.1. In that view of the matter, taking into consideration as the defendant No.1 was residing separately, it is the case of the plaintiffs that, the defendant No.1 has sold the suit schedule properties in favour of defendant No.3 illegally to deprive the rights of the plaintiffs and the same is established by the plaintiffs through oral and documentary evidence. Taking into consideration the factual aspects on record as defendant No.1 has sold the suit schedule properties in favour of defendant No.3 as per the registered sale deed dated 09.03.2007, however the defendants have failed to establish the fact that the said sale deed was made for the family necessity of defendant No.1, virtually the family of defendant No.1 were not residing with defendant No.1 and there was no occasion for defendant No.1 to sell the suit schedule properties in favour of defendant No.3 for family necessity. In that view of the matter, both the Courts below, after considering the material on record, have rightly decreed the suit of the plaintiffs herein holding that the plaintiffs are entitled for 1/3rd share together in the suit schedule properties. - 9 - NC: 2025:KHC-D:5139 RSA No. 100281 of 2020 Accordingly, I find no substance in the appeal and accordingly the appeal stands dismissed as there is no case made out by the appellant herein for formulation of substantial question of law as required under Section 100 of CPC. Accordingly the appeal stands dismissed at the stage of admission itself. 9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK List No.: 1 Sl No.: 24