- 1 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100433 OF 2019 (PAR-) BETWEEN: 1. SMT. TULASAWWA W/O. PRABHU @ PARAPPA BIRADAR PATIL, AGE: ABOUT 59 YEARS, OCC: HOUSE HOLD WORK & AGRICULTURE, R/O. SHANKRATTI, TQ: ATHANI. 2. SMT. SARASWETEWWA W/O. VENKAPPA PUJARI, AGE: ABOUT 57 YEARS OCC: HOUSE HOLD WORK, R/O. TULASIGERI, TQ: BAGALKOT. …APPELLANTS (BY SRI. ARAVIND D. KULKARNI, ADVOCATE) AND: 1. TIMMAPPA S/O. HANAMAPPA HALAKI, AGE: ABOUT 72 YEARS, OCC: RETIRED ENGINEER, R/O. NTTF, RAMANAGAR, 5TH CROSS DHARWAD. 2. BASAPPA S/O. HANAMAPPA HALAKI, AGE: ABOUT 63 YEARS, OCC: AGRICULTURE, 3. LAXMAPPA S/O. HANAMAPPA HALAKI, SINCE DECEASED BY LR’S. 3(A) ANNAKKA W/O. LAXMAN HALAKI, AGE: 57 YEARS, YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 OCC: HOUSEHOLD WORK & AGRICULTURE, 3(B) RAVI S/O. LAXMAN HALAKI, AGE: 38 YEARS, OCC: AGRICULTURE, 3(C) LAXMI W/O. VENKANGOUDA PATIL, D/O. LAXMAN HALAKI, AGE: 36 YEARS, OCC: HOUSEHOLD WORK & AGRICULTURE, 3(D) MANJUNATH S/O. LAXMAN HALAKI, AGE: 57 YEARS, OCC: AGRICULTURE, RESPONDENT NOS.#(A) TO (D) ARE R/O. LOKAPUR, TQ: MUDHOL, DIST: BAGALKOT. 4. ARJUN S/O. HANAMAPPA HALAKI, AGE: ABOUT 58 YEARS, OCC: AGRICULTURE, 5. SMT. PARVETEWWA W/O. AJJAPPA HALAKI, AGE: ABOUT 65 YEARS OCC: HOUSE HOLD WORK & AGRICULTURE, 6. SMT. MAHADEVI W/O. VITHAL DALAWAI, AGE: ABOUT 41 YEARS, OCC: SERVICE, RESPONDENT NOS.2 TO 6 R/O. LAXANATTI, TQ: MUDHOL. 7. SMT. PREMA W/O. TIMMAPPA HALAKI, AGE: MAJOR OCC: AGRIOCULTURE & HOUSEHOLD WORK, R/O. NTTF, RAMANAGAR, 5TH CROSS, DHARWAD. - 3 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 8. KRISHNA S/O. TIMMAPPA HALAKI, AGE: MAJOR, OCC: AGRICULTURE, R/O. NTTF, RAMANAGAR, 5TH CROSS, DHARWAD. 9. SMT. TIMMAWWA W/O. BASAPPA HALAKI, AGE: MAJOR, OCC: AGRICULTURE & HOUSEHOLD WORK, R/O. LAXANATTI, TQ: MUDHOL. …RESPONDENTS (BY SRI. JAGADISH PATIL, ADVOCATE FOR C/R1 & R4; SRI. L.M. KURAHATTI, ADVOCATE FOR R3(A-D); SRI. ANAND DESAI, ADVOCATE FOR R2 & R9; SRI. GIRISH YADWAD, ADVOCATE FOR R5 & R6) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO THAT PRESENT APPEAL BE ALLOWED AND SETTING ASIDE THE JUDGMENT & DECREE IN R.A.NO.51/2014 DATED 01.04.2019 PASSED BY 1ST ADDITIONAL DISTRICT AND SESSION JUDGE, BAGALKOT (SITTING IN JAMKHANDI) AND BY CONFIRMING JUDGMENT AND DECREE IN O.S.NO.02/2010 DATED 02.06.2014 PASSED BY SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL; THE SUIT O.S. NO.2/2010 BE DECREED. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 4 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 ORAL JUDGMENT This appeal is preferred by the plaintiffs assailing the Judgment and Decree dated 01.04.2019 in R.A.No.51/2014 on the file of I Addl. District and Sessions Judge, Bagalkot (Sitting at Jamakhandi), allowing the appeal and setting aside the Judgment and Decree dated 02.06.2014 in O.S.No.2/2010 on the file of Senior Civil Judge and JMFC, Mudhol, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that, plaintiffs and defendant No.1 to 4 and another deceased brother Ajjappa (husband of defendant No.5) were children of late Hanamappa. It is stated that, the father of the plaintiffs – Hanamappa died during 1975 and thereafter, their mother died during 2003, leaving behind the suit schedule properties to be succeeded by the plaintiffs and defendants. It is also stated that, the defendant No.1 has filed O.S.No.66/1999 against the defendant Nos.2 to 6 which came to be compromised and it is contended that the same is not binding on the plaintiffs. Hence, plaintiffs - 5 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 filed O.S.No.2/2010, seeking partition and separate possession in respect of the suit schedule properties. 4. On service of notice, the defendant Nos.1, 4, 7 and 8 filed written statement, admitting the relationship with the plaintiffs, however, took up a contention that, the schedule properties have been devolved as per compromise decree in O.S.No.66/1999 and accordingly, sought for dismissal of the petition. Defendant No.2, 3, 5, 6 and 9 filed separate written statement by contending that some of the properties are separate properties of defendants and accordingly, sought for dismissal of the suit. 5. The Trial Court, after considering the material on record, formulated the issues for its consideration. 6. In order to establish their case, plaintiffs have examined two witnesses as P.W.1 and P.W.2 and produced 20 documents as Exs.P1 to P20. Defendants have examined four witnesses as D.W.1 to D.W.4 and marked 64 documents as Exs.D1 to D64. 7. The Trial Court, by its Judgment and Decree dated 02.06.2014, decreed the suit and being aggrieved by the same, - 6 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 the defendant Nos.1, 4, 7 and 8 have preferred R.A.No.51/2014 before the First Appellate Court and the same was contested by the plaintiffs. The First Appellate Court after considering the material on record, by its Judgment and Decree dated 01.04.2019, allowed the appeal and set aside the Judgment and Decree in O.S.No.2/2010. Feeling aggrieved by the same, the plaintiffs have preferred this appeal. 8. This Court, vide order dated 27.01.2021 formulated the following substantial question of law: “1. Whether the First Appellate Court is justified in reversing the judgment and decree passed by the Trial Court and dismissing the suit on the ground of limitation? 2. Whether Appellate Court is justified in holding plaintiffs/present appellants are bound by compromise decree in O.S.No.66/1999 even though they were not parties to that suit and decree?” 9. I have heard Sri. Aravind D. Kulkarni, learned counsel appearing for the appellants, Sri. Jagadish Patil, learned counsel appearing for Caveators/respondent No.1 and - 7 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 respondent No.4, Sri. L.M.Kurahatti, learned counsel appearing for the respondent No.3(A to D), Sri. Anand Desai, learned counsel appearing for the respondent Nos.2 and 9, and Sri. Girish A. Yadwad, learned counsel appearing for the respondent Nos.5 and 6. 10. It is contended by Sri. Aravind D. Kulakarni, learned counsel appearing for the appellants that First Appellate Court has committed an error in dismissing the suit without considering the fact that the suit schedule properties are the joint family properties of the plaintiffs and defendants and further the plaintiffs were not the parties in O.S.No.66/1999 and the said aspect of the matter was not considered by the First Appellate Court. 11. Per contra, Sri.Jagadish Patil, learned counsel appearing for the respondents contended that, certain properties, namely, Item No.5 and 8 of land property and Sl.No.9 and 10 of house properties are the self-acquired properties of the defendant No.1 and his son – Krishna and also purchased by his wife. He further contended that defendant No.1 retired as Assistant Executive Engineer on 31.07.2005 and - 8 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 the retirement benefits of defendant No.1 was invested for purchase of Item No.5 and 8 of land property and Sl.No.9 and 10 of house properties and therefore those properties have to be excluded from the joint family properties and accordingly sought to justify the impugned judgment and decree passed by Courts below. 12. In order to buttress his arguments, Sri.Jagadish Patil, learned counsel appearing for the respondents places reliance on the judgment of the Hon’ble Supreme Court in the case of Marabasappa (Dead) by LRs. and Others vs. Ningappa (Dead) by LRs. and Others reported in (2011) 9 SCC 451 and in the case of Bhagwat Sharan (Dead through LRs.) vs. Purushottam and Others reported in (2020) 6 SCC 387. 13. In the light of the submissions made by the learned counsel for the parties, I have carefully examined the finding recorded by both the Courts below and perused the original records. 14. In order to understand the relationship between the parties, the genealogy of the parties is set out as below: - 9 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 * Propositus Hanamappa (D) Smt. Venkawwa(W)(D) Ajjappa(D) Timmappa Basappa Laxamappa Arjun Smt. Tulasawwa Smt. Saraswatewwa (Deft-1) (Deft-2) (Deft-3) (Deft-4) (Plff-1) (Plff-2) Partwatewwa(W) Prema(W) Timmawwa(W) (Deft-5) (Deft-7) (Deft-9) Mahadevi Krishna (Deft-6) (Deft-8) * 15. Perusal of the genealogy would indicate that, plaintiffs and defendant Nos.1 to 4 along with late Ajjappa (husband of defendant No.5) are the children of Hanamappa who died during 1975. The mother of the plaintiffs died during 2003. Perusal of the record would indicate that, there is no division of joint family properties, however, a suit in O.S.No.66/1999 was filed by defendant Nos.1 to 6 and in the said suit, the plaintiffs were not parties to the said suit. The said suit came to be decreed in terms of Compromise Decree. Perusal of the finding recorded by both the Courts below would indicate that, the said suit has been filed by the defendants to deprive the legitimate right of the plaintiffs. *Retyped and replaced vide court order dated 08.04.2025 Sd/- (ESIJ) - 10 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 16. Though the learned counsel appearing for the respondents submitted that Item No.5 and 8 of land property and Sl.No.9 and 10 of house properties are purchased in the name of the wife and son of defendant No.1 through the retirement benefits of defendant No.1, I have carefully examined the records which makes it clear that Item No.5 – land bearing Sy.No.22/2 was purchased in the name of the son of defendant No.1 and land bearing Sy.No.22/3 was purchased on 27.08.2005 in the name of the wife of defendant No.1, however, the source of income for purchasing the same, is from the joint family nucleus as the defendant no.1 has failed to prove that the source of income is derived from his salary and retirement benefits. 17. 17. It is also to be noted that Sl.No.9 and 10 of house properties were purchased on 12.03.1996 and 04.01.1993 in the name of the wife of defendant No.1 and his son, however, as on 1996 and 1993, the defendant No.1 was working as Engineer in the Government service and has not shown any records before the Courts below that he had invested independently from his salary and if at all the defendant No.1 has invested for purchase of the aforementioned properties, - 11 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 same would have been intimated to the employer – Government under the provisions of KCSR. In the absence of the same, I do not find merit in the submission of the learned counsel appearing for the respondents. In view of the observations made above, the judgments referred to above by the learned counsel appearing for the respondents, are not applicable to the facts of the present case and therefore the submission is not accepted. 18. Accordingly, I find force in the submission made by the learned counsel for the appellants that the judgment and decree in O.S.No.66/1999 is not binding on the plaintiffs as the plaintiffs are not parties in the said suit. Following the declaration of law made by the Hon'ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others1, the plaintiffs and defendant Nos.1 to 4 are entitled for equal share i.e., *1/7th share each in the suit schedule property, *and defendant Nos. 5 & 6 together are entitled for 1/7th share in the suit schedule properties. 19. Accordingly, the substantial question of law famed above favours the plaintiffs since the suit schedule properties are not partitioned and are the joint family property and 1 AIR 2020 SC 3717 *Corrected vide court order dated 08.04.2025 Sd/- (ESIJ) - 12 - NC: 2025:KHC-D:5699 RSA No. 100433 of 2019 therefore, the finding recorded by the Family Court, in dismissing the suit on the ground of limitation is incorrect. It is also to be noted that, the compromise decree in O.S.No.66/1999 is not binding on the plaintiff and therefore, the First Appellate Court has committed an error in interfering with the suit schedule properties. 20. In the result, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 01.04.2019 in R.A. No.51/2014 on the file of I Additional District and Sessions Judge, Bagalkote (sitting at Jamakhandi), is set aside. iii) Suit in O.S. No.2/2010 is decreed holding that, the plaintiffs and defendant Nos.1 to 4 are entitled for *1/7th share each in the suit schedule properties, *and defendant Nos.5 & 6 together are entitled for 1/7th share in the suit schedule properties. Sd/- (E.S.INDIRESH) JUDGE SAC CT-MCK List No.: 1 Sl No.: 44 *Corrected vide court order dated 08.04.2025 Sd/- (ESIJ)