- 1 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100217 OF 2025 (PAR/POS-) BETWEEN: BANADA HULUGAPPA S/O. BANADA KANIMEVVA, AGE: 73 YEARS, OCC: AGRICULTURE, R/O. JAMBUNAHTANAHALLI VILLAGE, TQ: HOSAPETE, DIST: VIJAYANAGARA. …APPELLANT (BY SRI. AVINASH MALIPATIL & SRI. AVINASH BANAKAR, ADVOCATES) AND: 1. BANADA VADAKAPPA S/O. LATE KANIMEVVA, AGE: 71 YEARS, OCC: AGRICULTURE, R/O. NO.16/108, WARD NO.32, BANADA KERE, TQ: HOSAPETE, DIST: VIJAYANAGARA. 2. SMT. LAKSHMI W/O. BANADA VADAKAPPA, AGE: 62 YEARS, OCC: AGRICULTURE, R/O. NO.16/108, WARD NO.32, BANADA KERE, TQ: HOSAPETE, DIST: VIJAYANAGARA. 3. B.H. KANIVEPPA S/O. SOMAVVA, AGE: 75 YEARS, OCC: AGRICULTURE, R/O. NO.273AB, WARD NO.34, NEAR NIJALINGAMMA TEMPLE, BANADAKERE, HOSAPETE, VIJAYANAGARA DISTRICT. …RESPONDENTS (BY SRI. SATISH M.S., ADVOCATE FOR C/R2 & R3) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE BALLARI SITTING AT HOSAPETE IN R.A. NO.5028/2023 Digitally signed by YASHAVANT NARAYANKAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 DATED 31.01.2025 CONFIRMING THE IMPUGNED JUDGMENT AND DECREE IN O.S. NO.103/2018 DATED 24.02.2023 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC HOSAPETE AND ALLOW THE SUIT OF THE PLAINTIFF, IN THE INTEREST OF JUSTICE AND EQUITY. 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 1. This appeal is preferred by the plaintiff challenging the judgment and decree dated 31.01.2025 in R.A.No.5028/2023 on the file of the III Additional District and Sessions Judge, Ballari (Sitting at Hosapete)1 dismissing the appeal and confirming the judgment and decree dated 24.02.2023 in O.S.No.103/2018 on the file of the Additional Senior Civil Judge and JMFC, Hosapete2 dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that one Banada Kanimevppa, Muddappa, Somavva, Hanumavva, 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 Hulugappa, Thimmavva and Kanakavva are the brothers and sisters. It is sated that Hulugappa, Somavva, Thimmavva and Kanakavva died without issues. It is stated that Kaniveppa and his wife Durugavva died issueless. Muddappa died leaving behind his son Hanumanthappa. It is also stated that Hunumavva had a daughter by name Kanimevva. Plaintiff and defendant No.1 are the children of Kanimevva. It is also stated that, the defendant No.2 is the wife of defendant No.1. It is further averred in the plaint that, the Kaniveppa had purchased the land bearing Sy.No.25 measuring 5.47 acres of Jambunathanahalli village as per the registered Sale Deed dated 05.07.1944 and thereafter same was partitioned amongst his wife – Durugavva, Kanimevva and Hanumanthappa (son of Mudakappa) as per the registered partition deed 28.04.1972. In the said partition, Durugavva got 1.47 acres and land to an extent of 2 acres had fallen to the share of Kanimevva as ‘B’ schedule and remaining 2 acres had fallen to the share of Hanumanthappa as ‘C’ schedule. It is also stated that, the - 4 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 share of Hanumanthappa was purchased by the plaintiff as per the registered Sale Deed dated 11.05.1994. It is also stated that, mutation has been effected accordingly. 4. Further, it is averred that Durugavva wife of Kaniveppa died without issues and as such the share of the said Durugavva was partitioned between the Hanumanthappa and Kanimevva. It is further stated in the plaint that the defendant No.1 without considering the revenue records, had gifted the land bearing Sy.No.25/B measuring 1.86 acres in favour of his wife defendant No.2 as per the registered gift deed dated 04.12.2016. Hence, it is the case of the plaintiff that, the said gift deed dated 04.12.2016 and the registered Sale Deed has been made without the consent of the plaintiff and same is not binding on the plaintiff, hence filed O.S.No.103/2018 seeking partition and separate possession of suit schedule property. 5. After service of notice, the defendants entered appearance and filed detailed written statement denying - 5 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 the averments made in the plaint. It is the specific case of the defendant No.1 that, there was a partition on 24.07.1998 in respect of the suit schedule property and same has been acted upon by the parties and therefore it is the contention of defendant No.1 that the defendant No.1 had executed registered gift deed dated 04.12.2016 in favour of his wife - defendant No.2 and revenue records have been mutated subsequently and therefore contended that the plaintiff has suppressed the earlier partition effected in the family and suit is filed after lapse of 18 years and therefore sought for dismissal of the suit. Thereafter, the plaint was amended and additional written statement was filed in addition to the same. 6. The Trial Court based on the pleadings on record, has framed issues and additional issues for its consideration. In order to establish their case, the plaintiff has examined 2 witnesses as PW.1 and PW.2 and produced 36 documents and same were marked as Exs.P.1 to P.36. The defendants have examined 2 witnesses as - 6 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 DW.1 to DW.2 and got marked 24 documents as Exs.D.1 to D.24. 7. The Trial Court after considering the material on record, by its judgment and decree dated 24.02.2023 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.5028/2023 on the file of the First Appellate Court and same was resisted by the defendants. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 31.01.2025, dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.103/2018. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. 8. I have heard Sri.Avinash Malipatil, learned counsel appearing for the appellant and Sri.Satish M.S., learned counsel appearing for the respondents. 9. Learned counsel appearing for the appellant contended that both the Courts below have failed to - 7 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 consider the fact that circumstances in which the partition deed said to have been executed on 24.07.1998 has been stated and the said document is not binding on the plaintiff as the said partition deed is concocted by the defendants to get the signature of the plaintiff illegally and accordingly sought for interference of this Court. 10. It is also contended by the learned counsel appearing for the appellant that both the Courts below have not properly appreciate the original Sale Deed (Ex.P.10) where the plaintiff had purchased the property bearing Sy.No.25/B measuring 1.75 acres from Banada Hulagamma and therefore sought for interference of this Court. 11. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by both the Courts below. It is also contended by the learned counsel appearing for the respondents that, as per Ex.D.9 dated 24.07.1998 family property has been devolved between the plaintiff and - 8 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 defendant No.1 and said aspect was suppressed by the plaintiff in the suit and accordingly, it is contended that the appeal deserves to be dismissed on merits. 12. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below. In order to understand the relationship between the parties, genealogy is reproduced as under: Devadas Kaniveppa Mudakappa Somavva Hanumavva Hulagappa Timmavva Kanakavva Duragavva Hanumanth (Died) Kanimevva(D) (Died Issue less) (Died Issue less) (Died) Hulagappa Vadakappa (Plaintiff) (Defendant No.1) Lakshmi (Wife) (Defendant No.2) 13. perusal of the same would indicate that original propositus Devadas had seven children - Banada Kanimevppa, Muddappa, Somavva, Hanumavva, - 9 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 Hulugappa, Thimmavva and Kanakavva are the brothers and sisters. It is sated that Hulugappa, Somavva, Thimmavva and Kanakavva died without issues. It is stated that Kaniveppa and his wife Durugavva died issueless. Muddappa died leaving behind his son Hanumanthappa. It is also stated that Hunumavva had daughter by name Kanimevva. Plaintiff and defendant No.1 are the children of Kanimevva. It is also stated that, the defendant No.2 is the wife of defendant No.1. 14. Perusal of the finding recorded by both the Courts below would indicate that the wife of Kaniveppa – Durugavva retained 1.47 acres along with Hanumanthappa and Kanimevva (Mother of plaintiff and defendant No.1) wherein 2 acres each was allotted to them as per the partition deed dated 28.04.1972. It is also forthcoming from the finding recorded by the Trial Court as per Ex.P.10 that the plaintiff had purchased the portion of the land from Hanumanthappa son of Mudakappa. Perusal of the finding recorded by the Trial Court would establish the - 10 - NC: 2025:KHC-D:6027 RSA No. 100217 of 2025 fact that there was a partition on 24.07.1998 (Ex.D.9) between the plaintiff and defendant No.1 and thereafter the said partition was acted upon by the parties by entering the respective names in the revenue records in respect of the suit schedule property (Ex.D.10 and D.11). In that view of the matter, as the parties have acted upon by the partition deed 24.07.1998 and the suit is filed during 2018 after lapse of 20 years, I do not find merit in the submission made by the learned counsel appearing for the appellant that there is perversity in the judgment and decree passed by Courts below. 15. Accordingly, the appeal is dismissed at the stage of admission as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 28