- 1 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF FEBRUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100195 OF 2021 (PAR/POS) BETWEEN: 1. CHANDRAGOUDA SHIVANAGOUDA PARVATAGOUDAR, AGE. 43 YEARS, OCC. BUSINESS, R/O. CHANDAN JEWELERS, JALVALI BAZAR, GADAG-582101. …APPELLANT (BY SRI. C.S SHETTAR, ADV) AND: 1. MEENAKASHI W/O. SHIVAKUMAR KATTIMANI AGE. 46 YEARS, OCC. HOMEMAKER, R/O. HOLAGUNDI-583219, TQ. HUVINAHADAGALI, DIST. BALLARI. 2. LINGANAGOUDA SHIVANAGOUDA PARVATAGOUDAR, AGE. 60 YEARS, OCC. BUSINESS, R/O. NALAWAD GALLI, GADAG-582101. 3. KUBERAGOUDA SHIVANAGOUDA PARVATAGOUDAR, AGE. 57 YEARS, OCC. BUSINESS, R/O. NALAWAD GALLI, GADAG-582101. 4. SHRIKANTAGOUDA SHIVANAGOUDA PARVATAGOUDAR AGE. 44 YEARS, OCC. BUSINESS, R/O. NALAWAD GALLI, GADAG-582101. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:09:57 +0530 - 2 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 5. SULOCHANA W/O. GANGADHAR KALASANAGOUDAR, AGE. 62 YEARS, OCC. HOMEMAKER, R/O. NEAR AGASI MUNAVALLI-591126, TQ. SAUNDATTI, DIST. BELAGAVI. 6. ANNAPURNA W/O. SHIVAPUTRAPPA NANDIKOL AGE. 54 YEARS, OCC. HOMEMAKER, R/O. HIREWADDATTI-582113, TQ. MUNDARAGI, DIST. GADAG. 7. SHIVALEELA W/O. SRISHAILAGOUDA PATIL AGE. 52 YEARS, OCC. HOMEMAKER, R/O. ABBIGERI-582111, TQ. RON, DIST. GADAG. 8. JAYASHRI W/O. BASALINGAPPA SORATUR AGE. 46 YEARS, OCC. HOMEMAKER, R/O. EWS 97, HUDCO COLONY, GADAG-582101. 9. JAYASHRI W/O. LINGANAGOUDA PARVATAGOUDAR, AGE. 51 YEARS, OCC. HOMEMAKER, R/O. NALAWAD GALLI, GADAG-582101. 10. VIJAYALAXMI W/O. KUBERAGOUDA PARVATAGOUDAR, AGE. 47 YEARS, OCC. HOMEMAKER, R/O. NALAWAD GALLI, GADAG-582101. …RESPONDENTS (BY SRI. S.S. KOLIWAD, ADV FOR R3, SRI. SUNIL S. DESAI, ADV FOR R8, NOTICE TO R1, R5, R6, R7, R10 ARE SERVED, NOTICE TO R2, R4 & R9 HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.09.2017 PASSED IN O.S.NO.111/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL - 3 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 JUDGE AND CHIEF JUDICIAL MAGISTRATE , GADAG, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGEMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and preliminary decree dated 15.09.2017 passed in O.S. No.111/2011 by the learned Principal Senior Civil Judge and CJM, Gadag. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was defendant No.4, respondent No.1 was the plaintiff and the other respondents were the other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession regarding the suit properties by metes and bounds. It is the case of the plaintiff that the suit schedule - 4 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 properties consist of agricultural lands, plots, non-agricultural land, shop premises and a house property. The original propositus is one Shivanagouda. He expired on 02.06.2009. His wife Mallawwa pre-deceased Shivanagouda on 15.09.2006. After the demise of Shivanagouda, the plaintiff and the defendants have succeeded to the suit schedule properties. It is stated that Shivanagouda started cloth business in partnership at Javali Bazar, Gadag, in the name and style of M/s Vijaya Javali Stores. In 1974-75, the other partners of the said firm retired from the firm and Shivanagouda, alone, continued the said business in his individual capacity and continued the business till 31.03.2006. Shivanagouda sold the coparcenary ancestral agricultural land bearing R.S. No.83 measuring 18 acres 8 guntas in Hadali village under a registered sale deed dated 27.11.1995 to 4 different persons which was allotted to his share in the partition effected among his siblings and invested the sale consideration amount in expanding the business of the aforesaid store and started a new business in the name of Shri Sari Mandir and Chandan Jewelry at Gadag. After the demise of Shivanagouda, the plaintiffs demanded for a partition and separate possession but - 5 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 the defendants 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 3 filed a written statement denying the averments made in the plaint. It is denied that Shivanagouda sold the agricultural land bearing R.S. No.83 measuring 18 acres 8 guntas of Hadli village. It is contended that Shivanagouda started a cloth business in the name and style of Vijaya Javali stores. They also worked with said Shivanagouda and they were doing private cloth business and also agriculture on lavani basis. They denied that, Sri. Sari Mandir business was established by the sale consideration amount of Hadli land. It is contended that defendant No.2 purchased CTS No.1789 in 2003 out of his own income. Defendant No.2 is running Sri.Sari Mandir business as an absolute owner by raising a loan of Rs.35,00,000/- from Merchant Liberal Co-operative Bank Limited, Gadag by mortgaging his property i.e. CTS No.1789. The said property is the self acquired property of defendant No.2. It is further contended that CTS No.1893/10 is also the self-acquired property of defendant No.2. It is denied that, Shivanagouda - 6 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 acquired all the suit schedule properties in his own name and in the name of his wife, sons and daughters. It is contended that defendant No.1 purchased agricultural land situate at Betageri bearing R.S. No.195/3 from one Mahadevappa son of Basavantappa Mudenagudi under a registered sale deed dated 28.08.2003 and he converted the said land into non- agricultural land and started a petrol bunk business. They further contended that suit R.S. No.644/2B/1 is also the self- acquired property. Hence, they pray to dismiss the suit on these grounds. 5. Defendant No.4 filed a written statement admitting the contents of the plaint and prayed to decree the suit and award a share to defendant No.4 6. Defendant No.4 filed an additional written statement contending that defendant Nos.1 to 3 and 5 to 10 colluding with each other, to gulp the share of defendant No.4, have purchased a portion out of CTS No.3787/47+48A/11/3 of Gadag under two registered sale deeds dated 31.01.2013 from Shree Siddalingeshwar Chitra Mandir, Gadag, out of joint family income. Hence, prays to decree the suit. - 7 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 7. Defendant No.8 filed a written statement admitting the contents of the plaint and sought to decree the suit. It is also contended that defendant Nos.5 to 8 being the daughters of Shivanagouda, entitled for a share in the suit schedule properties. 8. The trial Court based on the aforesaid pleadings, framed the following issues and additional issues: ISSUES 1. Whether the plaintiff proves that suit schedule properties are joint family properties of herself and defendants and are available for partition? 2. Whether the plaintiff further proves that she is entitled to get 1/9th share in the suit schedule properties? 3. Whether the defendant No.5 proves that the properties shown in the para No.8 of the written statement are her self acquired properties as pleaded in the para No.8 of the written statement? 4. Whether the defendant No.6 proves that the property shown in the para No.9 of the written statement is her self acquired property as pleaded in the para No.9 of the written statement? 5. Whether the defendant No.7 proves that the properties shown in the para No. 10 of the written statement is his self acquired properties as pleaded in the para No.10 of the written statement? 6. Whether the defendant No.8 proves that the property shown in the para No.11 of the written statement is her self acquired property as pleaded in the para No.11 of the written statement? - 8 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 7. Whether the plaintiff is entitled to the relief as sought for? 8. What order or decree? Addl. Issue dated 17.12.2013 1. Whether the defendant No.2 proves that suit schedule properties CTS No.1789, 1893/10 are his self acquired properties and saree Mandir business his exclusive and individual business as pleaded in the written statement? 2. Whether the defendant No.1 proves that suit schedule property R.S.No. 195/3 is his self acquired property and petrol bunk his exclusive and individual business as pleaded in the written statement? Addl. Issue dated 17.01.2015 3. Whether the suit is not maintainable for non-inclusion of all the joint family properties in one hotchpotch? Addl. Issue dated 02.06.2015 4. Whether the defendant No.4 proves that, the properties shown in para No.9(a) of the written statement are joint family properties of himself and defendants No.1 to 3 and 5 to 8? 5. Whether defendant No.4 proves that, he is entitled to get his legitimate share in the properties shown in para No.9(a) of the written statement in the present suit without seeking relief by way of a counter claim and without payment of Court fee? 9. The plaintiff to substantiate her case, examined herself as PW.1 and marked 94 documents as Ex.P-1 to P-94. On the other hand, defendant No.4 examined himself as DW.1, defendant No.2 was examined himself as DW.2, defendant No.8 - 9 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 examined herself as DW.3, defendant No.7 examined herself as DW.4., defendant No.5 examined herself as DW.5, defendant No.6 examined herself as DW.6 and marked 290 documents as Exs.D-1 to D-290. 10. The trial Court, after recording the evidence, hearing on both sides and on the assessment of the oral and documentary evidence, answered issue Nos.1 to 7 and additional issue No.1 in the affirmative, additional issue No.2, 3 and 5 in the negative, additional issue No.4 partly in the affirmative and issue No.8 as per the final order. The suit of the plaintiff was decreed. It is declared that, the plaintiff is entitled to her 1/9th share in all the suit schedule properties. 11. Defendant No.4 aggrieved by the impugned judgment filed this regular first appeal. 12. Heard the learned counsel for defendant No.4 and learned counsel for the plaintiff. 13. Learned counsel for defendant No.4 submits that the trial Court has not assigned any cogent or acceptable reasons for its judgment. He submits that the trial Court has completely erred in passing the impugned judgment. He - 10 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 submits that the trial Court has failed to consider Ex.D-153 i.e. relinquishment deed which evidences relinquishment of rights of the plaintiff as well as other sisters in favour of the brothers. He also submits that defendant No.4 filed an application for amendment of the written statement. He also submits that the plaintiff has not included the properties shown in the application for amendment of the written statement. He further submits that since all the properties are not included, the suit for partition and separate possession is not maintainable. Hence, he prays to allow the application in I.A.1/2025 and set aside the judgment and decree passed by the trial Court and remit the matter to the trial Court for fresh consideration in accordance with law. 14. Per contra, the learned counsel for the plaintiff submits no objection in allowing I.A.1/2025 and remitting the matter to the trial Court for fresh disposal. 15. Perused the records and considered the submissions of the learned counsel for the parties. 16. The points that arise for our consideration are: - 11 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 i) Whether defendant No.4 proves that the trial Court has not assigned any reasons while passing the impugned judgment? ii) Whether defendant No.4 has made out a ground to allow I.A.1/2025? iii) What order or decree? 17. Point No.(i): The plaintiff to substantiate her case examined herself as PW.1 and produced documents marked as Exs.P-1 to P-94. It is the defence of the defendants that the plaintiff has not included other existing joint family properties in the suit. Though the trial Court has recorded a finding in para No.51 that, the parties to the suit are at liberty to include those properties in the final decree proceedings and can seek a share in the same, it ought to have dismissed the suit on the ground that the suit for partial partition is not maintainable, but, on the contrary, the trial Court has decreed the suit and further the trial Court has not assigned any reasons while passing the impugned judgment. Hence, the matter requires reconsideration by the trial Court. In view of the above discussion, we answer Point No.(i) in the affirmative. - 12 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 18. Point No.(ii): Defendant No.4 filed an application for amendment of the written statement. In support of the application filed an affidavit contending that, he has 4 brothers and 5 sisters and defendant No.2 is the person who instigated the plaintiff to file a suit. The suit is filed showing his parents properties and the properties purchased jointly in the names of himself, his brothers and their wives. But the properties purchased by the joint family nucleus in the name of some of his sisters and other relatives are not at all shown as subject matter of the suit. Hence, he submits that a similar application was filed before the trial Court in I.A.XVIII and he has filed an application in I.A.IX for amendment of the written statement. I.A.XVIII was rejected. He submits that the trial Court has allowed the application I.A.No.IX for amendment of the written statement. Defendant No.4 did not furnish the particulars of the properties purchased in the names of family members of the parties to the suit. Now, by way of this application, defendant No.4 submitted the particulars of the properties purchased out of the joint family nucleus in the names of different members of the family. Hence, on these grounds, he prays to allow the application In I.A.1/2025. - 13 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 19. In a suit for partition and separate possession, all the existing ancestral/joint family properties are to be included in the suit. If the plaintiff omits to include other ancestral/joint family properties, then, the suit for partial partition is not maintainable. The trial Court without considering the said aspect has proceeded to pass the impugned judgment. The trial court has not assigned any proper reasons and committed an error in passing the impugned judgment. Defendant No.4 has made out a ground to allow I.A.1/2025. In view of amendment of the pleadings, the parties have to lead evidence to prove or disprove the said pleadings, i.e. more or less, it may amount to de novo trial which has to be considered by the trial court. In view of the aforesaid reasons, the matter requires to be remanded to the trial Court for fresh consideration. 20. In view of the above discussion, we answer point No.(ii) in the affirmative. - 14 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 21. Point No.(iii): Accordingly, we proceed to pass the following: ORDER The appeal is allowed. I.A.1/2025 is allowed. The judgment and decree passed by the trial Court is set aside. The suit is restored. I.A.XVIII is allowed. Defendant No.4 is permitted to carry out amendment in the written statement and furnish an amended written statement. Liberty is reserved for the plaintiff to file a replication to the additional written statement. Further, the trial Court is directed to provide an opportunity for both parties to adduce additional evidence on the plea of amended written statement. The parties are directed to appear before the trial court on 24.03.2025 without awaiting any further notice. This Court has not made any adjudication on the merits in issue. - 15 - NC: 2025:KHC-D:3303-DB RFA No. 100195 of 2021 All contentions of the parties are kept open. The Registry is directed to transmit the records forthwith. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB