- 1 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH 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. 100003 OF 2020 (PAR) BETWEEN: 1. SHRI. ABAY S/O ANANTH UPADHYA, AGE: 60 YEARS, OCC: ARCHAKA, C/O: AJEET S/O BABURAO UPADHAYA NEAR JAIN MANDIR HARUGERI, TQ: RAIBAG, DIST: BELAGAVI. 2. SHRI. SATISH S/O ANANTH UPADHYA, AGE: 56 YEARS, OCC: ARCHAKA, R/O: HAIRWADI COLONY, KOLHAPUR ROAD, NEAR JAIN MANDIR, JAYSHINGPUR, TQ: SHIROL, DIST: KOLHAPUR, STATE: MAHARASHTRA. …APPELLANTS (BY SRI. VIJAYKUMAR B. HORATTI, ADVOCATE) AND: 1. RAJENDRA S/O SANANTHKUMAR UPADHYA, AGE: 58 YEARS, OCC: AGRICULTURE AND ARCHACA, Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:08:30 +0530 - 2 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 R/O: TERDAL, NOW AT HARUGERI, TQ: RAIBAG, DIST: BELAGAVI. 2. MAHAVEER S/O BABURAO UPADHYA, AGE: 78 YEARS, OCC: AGRICULTURE AND ARCHACA, R/O: RAJARAMPURI, NOW AT KOLHAPUR (MAHARASHTRA). 3. SHRI. AJEET S/O BABURAO UPADHYA, SINCE DECEASED REPRESENTED BY HIS LR’S 3A) SOWMYA W/O BABURAO UPADHYA AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR JAIN MANDIR, HARUGERI-591317. AT/PO: HARUGERI, TAL RAIBAGH, DIST: BELAGAVI. 3B) ADITYA S/O BABURAO UPADHYA AGE: 15 YEARS, OCC: STUDENT, R/O: NEAR JAIN MANDIR, HARUGERI-591317. AT/PO: HARUGERI, TAL RAIBAGH, DIST: BELAGAVI. 3C) ADARSH S/O BABURAO UPADHYA AGE: 10 YEARS, OCC: STUDENT, R/O: NEAR JAIN MANDIR, HARUGERI-591317. AT/PO: HARUGERI, TAL RAIBAGH, DIST: BELAGAVI. (RESPONDENT NO.3B AND 3C ARE MINORS REPRESENTED BY MINOR GUARDIAN RESPONDENT NO.3A) - 3 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 4. SHRI. ASHOK S/O BABURAO UPADHYA, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: NEAR JAIN MANDIR, UCHAGAON, TQ: KARIVEER, DIST: KOLHAPUR (MAHARASHTRA). 5. SMT. MADNAVALI W/O BHARAMAPPA UPADHYA, AGE: 66 YEARS, OCC: HOUSE HOLD WORK, R/O: DARUR, TQ: ATHANI, DIST: BELAGAVI. 6. SMT. TRISHALA W/O ANANTH UPADHYA, AGE: 68 YEARS, OCC: HOUSE HOLD WORK, R/O: C/O: SANJAY S/O ANANTH UPADHAYA 1049 E WARD SHAHUPRI, 6TH LANE, KOLHAPUR (MAHARASHTRA). 7. SHRI. VARADHMAN S/O ANANTH UPADHYA, AGE: 58 YEARS, OCC: ARCHAKA, R/O: 1001/A/2/2. TRISHLANANT NIVAS YASHWANT NAGAR, DESHMUKH SCHOOL, RADHANAGAR ROAD, KOLHAPUR (MAHARASHTRA). 8. SMT. SMITA W/O DHANNYAKUMAR UPADHYA, AGE: 35 YEARS, OCC: HOUSE HOLD WORK, R/O: GULVADI ROAD MAHADA COLONY, ROOM NO. 16, BARAMATI, DIST: PUNE, MAHARASHTRA. 9. SHRI. BABURAO @ SANJAY S/O ANANITH UPADHYA, AGE: 38 YEARS, OCC: ARCHAKA, C/O: SANJAY S/O ANANTH UPADHYA 1049 E WARD, SHAHUPURI, 6TH LANE, KOLHAPUR. (MAHARASHTRA). - 4 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 10. SMT. SUNANDA W/O NABIRAJ UPADHYA, AGE: 75 YEARS, OCC: HOUSE HOLD WORK, R/O: KRISHEN KANNAYA APARTMENT, PLOT NO.5, 1ST FLOOR DHAMODAHAR SHIVRAM MARG TANE BELAPUR ROAD, POST: VERAVAR TANE, MUMBAI. 11. SHRI. SAGAR S/O. NABIRAJ UPADHYA, AGE: 48 YEARS, OCC: ARCHAKA, R/O: KRISHEN KANNAYA APARTMENT, PLOT NO.5, 1ST FLOOR DHAMODAHAR SHIVRAM MARG TANE, BELAPUR ROAD, POST: VERAVAR TANE, MUMBAI. 12. SMT. VIDYA W/O NABIRAJ UPADHYA, AGE: 50 YEARS, OCC: HOUSE HOLD WORK, R/O: KRISHEN KANNAYA APARTMENT, PLOT NO.5, 1ST FLOOR DHAMODAHAR SHIVRAM MARG TANE, BELAPUR ROAD, POST: VERAVAR TANE, MUMBAI. 13. SMT. SUSHILA W/O SANANTHKUMAR UPADHYA, (SINCE DEAD REPRESENTED BY HER LR’S R1 AND R14) 14. SMT. SHESHIKALA W/O SURENDRA UPADHYA, AGE: 48 YEARS, OCC: HOUSE HOLD WORK, R/O: DAVALI, TQ: MIRAJ, DIST: SANGALI. 15. SMT. SOPPANA D/O SURENDRA UPADHYA, AGE: 27 YEARS, OCC: HOUSE HOLD WORK, R/O: DAVALI, TQ: MIRAJ, DIST: SANGALI. - 5 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 16. SMT. SHNEHA W/O BHARTH UPADHYA AGE: 25 YEARS, OCC: HOUSE HOLD WORK, R/O: SHAH JAIN MANDIR, JAYSHINGPUR, TQ: SHIROL, DIST: KOLHAPUR. 17. SHRI. BHARAMDEV S/O SURENDRA UPADHYA, AGE: 21 YEARS, OCC: ARCHAKA, R/O: DAVALI, TQ: MIRAJ, DIST: SANGALI. …RESPONDENTS (BY SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR R1, R2, C/R4, R6 TO R12, R14 TO R17; R5 HELD SUFFICIENT; PROPOSED R3(A) SERVED; PROPOSED R3(B) AND R3(C) ARE MINOR REPRESENTED BY PROPOSED R3(A) V/O. DATED 28.08.2023 R1 AND R14 ARE TREATED AS LRS OF DECEASED R13) THIS RFA FILED UNDER SEC. 96 OF CPC., PRAYING TO, THE JUDGMENT AND DECREE DATED:14.10.2019 PASSED IN O.S.NO.219/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BANAHATTI, 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 - 6 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 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 14.10.2019 passed in OS No.219/2016 by the Senior Civil Judge and JMFC., Banahatti. 2. For convenience, the parties are referred to, as per their ranking before the trial Court. The appellants were defendants No.6 and 8, respondent No.1 was the plaintiff and the other respondents were the other defendants. 3. Brief facts leading rise to filing of this Regular First Appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession of 1/6th share together with defendants No.14 to 18 regarding the suit schedule properties. It is the case of the plaintiff that one Baburao was the original propositus. He died in 1967, leaving behind his wife Padmavati, she died in 1982, leaving - 7 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 behind six sons i.e. defendants No.1 to 3, late Ananth, Nabiraj and Sanathkumar, and one daughter i.e. defendant No.4. Ananth died on 04.10.2014. He had two wives viz., Madanavali and Trishala (defendant No.5). Ananth has three sons i.e. defendants No.6, 7 and 8 and a daughter through Smt.Madanavali and three sons defendants No.9 and 10 through Trishala. Both the wives of Ananth died and Nabiraj died leaving behind his wife i.e defendant No.11 and daughters’ defendant Nos.12 and 13. The third son of Baburao i.e. Sanath kumar died leaving behind his wife defendant No.12 and two sons viz., Rajendra and Surendra. Rajendra is the plaintiff and second son Surendra died leaving behind his wife defendant No.13, son and two daughters i.e. defendants No.16 to 18. It is contended that a suit ‘A’ schedule property bearing R.s.No.272/1 measuring 34 guntas out of 7 acres 39 guntas of Terdal village, the occupancy right was granted in the name of Ananth the elder son of propositus Baburao. The said land was granted for the benefit of the entire family. Another property bearing - 8 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 R.S.No.109/8 measuring 6 acres 39 guntas of Terdal village, which is also a Devastan Inam land, was granted in favour of Ananth as a joint family manager. Re.Sy.No.52/A/4 measuring 3 acres 22 guntas is a ancestral property of propositus Baburao, who obtained the same under the registered partition effected between his siblings on 13.12.1956, which was certified under ME No.6946 dated 02.06.1957. It is contended that suit ‘A’ and ‘B’ schedule properties are joint family properties of plaintiff and defendants No.1 to 18. They are the members of the Hindu Undivided Family, and no partition is effected. The plaintiff demanded partition and separate possession. The defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendants No.1 to 3 filed a written statement and defendants No.11 and 12 filed a memo adopting the written statement filed by defendant No.1. Defendants No. - 9 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 1 and 3 have denied the averments made in the plaint, and it is contended that schedule ‘A’ and ‘B’ properties are the joint family properties of the plaintiff and defendants. After the demise of Baburao, the plaintiff and defendants succeeded to the suit schedule properties. Defendants No.1 to 3 are entitled to 1/6th share, and defendants No.5 to 10 are entitled to 1/6th share, and defendants No.11 to 13 are jointly entitled to 1/6th share. Defendant Nos.14 to 18 and plaintiff are jointly entitled to 1/6th share. Defendants No.5 to 10 on the strength of revenue records obstructing the joint possession and enjoyment of the plaintiff and defendants. Hence, prays to decree the suit. 5. Defendants No.5, 9 and 10 have filed a separate written statements denying the averments made in the plaint and admitting the relationship between the plaintiff and defendants. It is contended that the land in R.S.No.272/1 was tenanted and granted in favour of the deceased Ananth, who was the elder son of propositus Baburao. Occupancy rights were granted exclusively in - 10 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 favour of Ananth exclusively and in his individual capacity, and not for the benefit of the family. It is contended that, another land bearing RS.No.109/8 was also granted the occupancy rights to the deceased Ananth Baburao Upadhya by the land Tribunal in this individual capacity. It is contended that the plaintiff has not included the properties bearing municipal No.600/1 and Municipal No.600/2. Hence, he contended that the suit for partial partition is not maintainable. Hence, on this ground prays to dismiss the suit. Defendants No.5, 9 and 10 have filed additional written statement, contending that, the plaintiff has not included the other properties acquired by defendant No.3, 11, 12, 13 and 14 which are also the joint family properties, in the suit and accordingly prays to dismiss the suit. 6. The trial court, based on the pleadings of the parties, framed the following issues and additional issue: ISSUES 1. Whether the plaintiff proves that suit schedule ‘A’ and ‘B’ properties are - 11 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 joint family properties of plaintiff and defendants No.1 to 18? 2. Whether the defendant No.5, 9 and 10 proves that the land bearing R.S.No.272/1 measuring 34 guntas out of which 7 acres 39 guntas and land bearing R.S.No.109/8 measuring 6 acres 39 guntas of Terdal village ‘A’ landed properties are individual property of deceased Anand Baburao Upadhya and he became absolute owner of the said properties? 3. Whether the defendant No.5 to 10 proves that ‘B’ schedule properties are stands in the name of propositus Baburao Upadhya, the said properties are joint family properties and deceased Anant Upadhya having 1/6th share in respect of ‘B’ schedule properties? 4. Whether the defendant No.5 to 10 proves that suit is bad for non including properties mentioned in the para-12 of written statement? 5. Whether the plaintiff prove that he is having 1/6th share in suit schedule A & B properties along with defendant No.15 to 18? 6. Whether the defendant No.1 to 3 proves that they are entitled for 1/6th share each in respect of A & B schedule properties? 7. Whether the plaintiff is entitled for relief sought? 8. What order or decree? - 12 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 Addl. Issues 1. Whether of defendant No.5 and 10 proves that during the life time of Anant Upadhye and his brother orally partitioned in the said oral partition joint family property allotted the share to plaintiff as alleged in para-3 of Additional written statement? 7. The plaintiff, to substantiate his case, examined himself as PW1 and marked 13 documents as Ex.P1 to P13. On the other hand, defendant No.3 was examined as DW1, defendant No.10 was examined as DW2, examined one witness as DW3, and marked 30 documents as Ex.D1 to D30. 8. The trial court, after recording the evidence, on hearing on both sides, and on assessment of oral and documentary evidence, answered issue Nos.1, 3, 5 and 6 in the affirmative, issue Nos.2, 4, and additional issue No.1 in the negative and issue No.7 as per final order. The suit of the plaintiff was decreed vide judgment dated 14.10.2019. It is declared that, the plaintiff and defendants No.14 to 18 are together entitled to a grant of - 13 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 1/6th share in respect of suit schedule ‘A’ and ‘B’ properties. It is further declared that defendants No.1 to 3 are entitled to 1/6th share each in respect of suit ‘A’ and ‘B’ schedule properties. 9. Heard the arguments of the learned counsel for defendants No.6, 8 and the plaintiff. 10. Learned counsel for defendants No.6 and 8 submits that properties bearing municipal Nos.600/1 and 600/2 are the ancestral properties of the plaintiff, and defendants, and the said properties are not included in the suit for partition and separate possession. He submits that the suit for partial partition is not maintainable. He further submits that the direction be given to the plaintiff to include properties bearing municipal Nos.600/1 and 600/2 in the FDP proceedings and hence, prays to dispose of the appeal. 11. Per contra, the learned counsel for the plaintiff submits that, he is ready to include properties bearing - 14 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 municipal Nos.600/1 and 600/2 in the FDP proceedings and share be allotted for the aforesaid properties. Hence, he submits that the appeal may be disposed of. 12. Perused the records, and considered the submission of the learned counsel for the parties. 13. The points, that arose for our consideration are: 1) Whether the plaintiff can be permitted to include existing ancestral properties in the Final Decree Proceedings? 2) What order or decree? 14. The Plaintiff, to substantiate his case, examined himself as PW1. He reiterated the plaint averments in the examination in chief and to prove that suit schedule properties are ancestral joint family properties of the plaintiff and defendants produced documents marked as Ex.P1 to P13. However, the DW.1 in the course of cross examination elicited that, the plaintiff did not include properties bearing municipal Nos.600/1 and 600/2. - 15 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 However, the PW1 admitted that the properties bearing municipal Nos.600/1 and 600/2 are also the ancestral joint family properties of the plaintiff and defendants. 15. On the other hand, the defendant No.3 was examined as DW1. He reiterated the written statement averments in the examination in chief, and to prove the defense of the defendants, they marked 30 documents as Ex.D1 to D30. Defendant No.10 was also examined as DW2, and examined one witness as DW.3. 16. On perusal of the entire records, it is clear that the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants, and they are the members of the Hindu Undivided Family, and no partition is effected. 17. The defense of the defendants is that the properties bearing municipal Nos.600/1 and 600/2 are the ancestral joint family properties of the plaintiff and defendants. The said properties are not included in the - 16 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 suit. As the learned counsel for the plaintiff submits that the plaintiff is ready to include the said properties in the FDP proceedings and the shares may be allotted in this appeal regarding the properties bearing municipal Nos.600/1 and 600/2. The FDP proceeding is a confirmation of the suit. 18. In view of the above discussions, we answer Point No.1 in the affirmative in favour of the defendants, as the plaintiff has already undertaken to include the properties bearing municipal Nos.600/1 and 600/2 in the FDP proceedings. 19. Accordingly, we proceed to pass the following: ORDER The Appeal is allowed in part. The judgment and decree passed by the Senior Civil Judge and JMFC, Banahatti in OS No.219/2016 dated 14.10.2019 is modified. The plaintiff and defendants No.14 to 18 are entitled together to 1/6th share regarding suit - 17 - NC: 2025:KHC-D:3772-DB RFA No. 100003 of 2020 schedule ‘A’ and ‘B’ properties and properties bearing municipal Nos.600/1 and 600/2. The defendants No.1 to 3 are entitled to a 1/6th share each in suit schedule ‘A’ and ‘B’ properties and properties bearing municipal Nos.600/1 and 600/2. The Office is directed to draw a preliminary decree. The Plaintiff is directed to include properties bearing municipal Nos.600/1 and 600/2 in the FDP proceedings. If such an application is filed, the FDP court is directed to allow the application. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB LIST NO.: 1 SL NO.: 3