- 1 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100065 OF 2023 (PAR/POS-) BETWEEN: 1. SMT. SARASWATI W/O. GURUNATH SAVANUR @ MACHIGAR, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O. VIDYA NAGAR, EAST ‘C’ BLOCK, HAVERI, TQ AND DIST: HAVERI-581110. 2. SRI. MANJUNATH S/O. GURUNATH SAVANUR @ MACHIGAR, AGE: 45 YEARS, OCC: DRIVER, R/O. D.C.OFFICE, HAVERI, TQ AND DIST: HAVERI-581110. 3. SRI. GANESH S/O. GURUNATH SAVANUR @ MACHIGAR, AGE: 46 YEARS, OCC: DRIVER, R/O. MUNDARGI, TQ: MUNDARGI, DIST: GADAG-581110. 4. SRI. BASAVARAJ S/O. GURUNATH SAVANUR @ MACHIGAR AGE: 58 YEARS, OCC: BUSINESS, R/O. VIDYA NAGAR, EAST ‘C’ BLOCK, HAVERI, TQ AND DIST: HAVERI-581110. …APPELLANTS (BY SRI. SHIVRAJ S. BALLOLI, ADVOCATE) AND: 1. SMT. SHANKUTALA W/O. MOHAN JADEKAR, AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O. HEGGERI COLONY, H.NO.48/2, OLD HUBBALLI, HUBBALLI-580 000. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 2. SRI. ASHOK S/O. NINGAPPA SAVANUR @ MACHIGAR, AGE: 60 YEARS, OCC: TRAFFIC INSPECTOR, R/O. BENGALURU DEPOT NO.3, SHANTI NAGAR, BENGALURU-560025. 3. SMT. SUNANDA W/O. MANJUNATH, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. H.NO.18, HOSANAGAR, BHADRAVATI, TQ: BHADRAVATI, DIST: SHIVAMOGGA. 4. SMT. SAVITRAWWA W/O. DEVENDRA SAVANUR @ MACHIGAR, AGE: 58 YEARS, OCC: SERVICE, R/O. VIDYANAGAR, ABHISHEKHA SADAN, HAVERI-581110. 5. SMT. PREMAWWA W/O. KRISHNAPPA HOSAMANI, AGED ABOUT 58 YEARS, OCC: HOUSEHOLD WORK, R/O. C-BLOCK, BEHIND LIONS ENGLISH MEDIUM SCHOOL, HAVERI-581110. 6. SRI. PARASHURAM S/O. NINGAPPA SAVANUR @ MACHIGAR, AGE: 68 YEARS, OCC: RETD., R/O. RAVIRAJ EDUCATION & KALYANA TRUST, NEAR VIDYA CHETAN, MRUTYUNJAYA NAGAR, RANEBENNUR-5800080, TQ: RANEBENNUR, DIST: HAVERI. 7. SRI. MALATESH S/O. NINGAPPA SAVANUR @ MACHIGAR, AGE: 63 YEARS, OCC: CONDUCTOR, R/O. H.NO.41, BASAVANAGAR, ANANDNAGAR ROAD, OLD HUBBALLI, HUBBALLI-580001, TQ: HUBBALLI, DIST: DHARWAD. …RESPONDENTS (BY SRI. HARSH DESAI, SRI. RONALD J.H. AND V.P. VADAVI, ADVOCATES FOR R1-R3; - 3 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 R4-HELD SUFFICIENT; R5 & R6 SERVED, UNPRESENTED; R7-HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 29.10.2022 PASSED BY THE LEARNED PRINCIPAL DISTRICT AND SESSIONS JUDGE, HAVERI IN R.A.NO.87/2015 AND CONSEQUENTLY AFFIRM THE JUDGMENT AND DECREE DATED 17.10.2015 PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE, HAVERI IN O.S. NO.35/2013 AND ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the defendant Nos.1 to 4, challenging the judgment and decree dated 29.10.2022 passed in RA No.87/2015 on the file of Principal District and Sessions Judge, Haveri (for short, hereinafter referred to as ‘First Appellate Court’), allowed the appeal in part, consequently, set aside the judgment and decree dated 17.10.2015 passed in OS No.35/2013 on the file of Additional Senior Civil Judge, Haveri (for short, - 4 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the trial Court. 3. It is the case of the plaintiffs that, the father of the plaintiffs - Ningappa died on 27.05.1989. Mother of the plaintiffs died on 08.08.1989. It is also stated in the plaint that, the original propositus – Malleshappa Savanur died on 22.09.1960 leaving behind six children namely, Parasappa, Fakkirappa, Venkappa (grandfather of defendant No.2 to 4), Ningappa (father of the plaintiffs), Yallappa and Laxmavva. It is stated that, land bearing Sy. No.13/3 measuring 05 acres 10 guntas of Ijarilakmapur, Haveri Taluk had fallen to the share of joint share of the father of the plaintiffs – Ningappa and accordingly, the plaintiffs have filed OS No.35/2013 seeking relief of partition and separate possession in respect of the suit schedule property so also seeking declaration that, Apsat - 5 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 Watni and mutation entry in respect of the land bearing Sy.No.13/3 is not binding on the plaintiffs. 4. After service of summons, the defendants entered appearance and filed detailed written statement. It is the specific case of the defendant No.2 that, the suit is not maintainable as the plaintiffs have not included all the joint family properties in the present suit. It is also contended by the defendants that, there was no partition as on the death of the original propositus-Malleshappa Hibbanna Savanur and therefore, sought for dismissal of the suit by contending that, there is no partition in the joint family of plaintiffs and defendants. 5. On the basis of the rival pleadings, the Trial Court has formulated issues and additional issue for its consideration. 6. In order to establish their case, plaintiffs have examined five witnesses as PW1 to PW5 and got marked 25 documents as Exs.P1 to P.25. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 01 document as Exs.D1. - 6 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 7. The Trial Court, after considering the material on record, by its judgment and decree dated 17.10.2015 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA No.87/2015 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 29.10.2022 allowed the appeal and set aside the judgment and decree passed by the Trial Court in OS No.35/2013. Being aggrieved by the same, the appellants/defendants have preferred this Regular Second Appeal. 8. I have heard Sri. Shivraj S. Balloli, learned counsel appearing for the appellants and Sri. Harsh Desai, learned counsel appearing for the respondent Nos.1 to 3. 9. Sri. Shivraj S. Balloli, learned counsel for the appellants contended that, the suit filed by the plaintiff itself is not maintainable for non joinder of parties as all the legal heirs of deceased Malleshappa Hibbanna Savanur were not the parties to the suit. He further contended - 7 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 that, since the subject matter of the property is joint family properties and therefore, sought for interference of this Court. 10. Per Contra, Sri. Harsh Desai, learned counsel appearing for the respondent Nos.1 to 3 sought to justify the judgment and decree passed by the First Appellate Court and contended that, the Trial Court has not considered the material on record particularly Ex.P.24 and P.7 wherein, the remaining members of the joint family have taken the shares during 1964 and therefore, the Trial Court has committed an error in dismissing the suit however, the same was rectified by the First Appellate Court in the right perspective and accordingly, sought for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. In order to ascertain the relationship between the parties as averred in the plaint, the genealogy of the parties reads as under: - 8 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 PROPOSITUS Malleshappa Hibbanna Savanur @ Machager (Deceased) Yallavva Malleshappa Savanur @ Machager (Deceased) Parasappa Fakkirappa Venkappa @ Yankappa Ningappa Yallappa Laxmavva (Deceased) Chinnavva Kom.Ningappa Savanur @ Machager (Deceased) Shakunathala Malatesh Ashok Parashuram Suanda (Ist Plff.) (2nd Plff.) (3rd Plff.) (4th Plff.) (5th Plff.) Gurunath (Deceased) Devendra (Deceased) Premavva (6th Deft.) Saraswati (Ist Deft.) Wife Savaitravva (Wife) (5th Deft.) Manjunath Ganesh Basavaraj (2nd Deft.) (3rd Deft.) (4th Deft.) 12. On perusal of the genealogy would indicate that, the original propositus - Malleshappa Hibbanna Savanur died on 22.09.1960, leaving behind his children namely Parasappa, Fakkirappa, Venkappa (grandfather of defendant No.2 to 4), Ningappa (father of the plaintiffs), Yallappa and Laxmavva. I have carefully consider the - 9 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 finding recorded by the Trial Court, wherein the Trial Court taking into consideration with regard to the presumption of jointness of the plaintiffs and defendants and also arrived at a conclusion that the plaintiffs have failed to establish the division of properties as styled as ‘Kabuli Watni Patra’ and therefore, arrived at a conclusion to dismissed the suit. The said aspect of the matter was reappreciated by the First Appellate Court and set aside the judgment and decree passed by the Trial Court on the sole ground that, three children of Malleshappa Hibbanna Savanur namely Parsappa, Fakkirappa and Yallappa have divided the joint family properties during 1964 as per Ex.P.24 and the remaining properties stands in the name of remaining children namely Venkappa (grandfather of the defendant Nos.2 to 4), Ningappa (father of the plaintiffs). In this regard, I have carefully examined the recitals in Ex.P.24 co-relative with the Ex.P.7 wherein, all the children of the original propositus – Malleshappa Hibbanna Savanur have consented for division of properties between remaining two children namely Venkappa (grandfather of the - 10 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 defendant Nos.2 to 4) and Ningappa (father of the plaintiffs and defendant No.5) and the said mutation is as per Ex.P.7 is of the year 1965. If at all, the defendants were aggrieved by the same, to prove that the said property is the part of the joint family properties, there was no impediment for the defendants to question the mutation as per Ex.P.7 and P.24 before the Competent Revenue Court and further the suit is filed during 2013. 13. In that view of the matter, as the division property of original propositus - Malleshappa is forthcoming from long standing revenue records as per Ex.P.24 and P.7, the Trial Court committed an error in dismissing the suit. However, the First Appellate Court after considering the document on record and by exercising the jurisdiction confirmed under Order 41 Rule 31 of CPC, rightly interfered with the judgment and decree passed by the Trial Court, which requires to be confirmed in this appeal. 14. Accordingly, appeal fails as the appellants herein have not made out grounds for formulation of - 11 - NC: 2025:KHC-D:4467 RSA No. 100065 of 2023 substantial question of law as required under Section 100 of Code of Civil Procedure. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 34