- 1 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST 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. 100034 OF 2021 (PAR/POS) BETWEEN: SRI. BASAVARAJ S/O. TOTAPPA PYATI AGED ABOUT 63 YEARS, OCC: AGRICULTURE, R/O: DAMBAL VILLAGE, TQ: MUNDARAGI, NOW HE IS R/AT: C/O. V.P. JAKKANGOUDAR, RANGANATH NILAYA, SECTOR NO.40, PLOT NO.25(D)., NEAR STADIUM, NAVANAGAR, BAGALKOT, TQ AND DIST BAGALKOTE-587103. …APPELLANTS (BY SRI. P.R. BENTUR AND SRI. SHIVAPRASAD S. PATIL, ADVOCATES) AND: 1. SRI. SHIDLINGAPPA S/O. TOTAPPA PYATI AGED ABOUT 47 YEARS, OCC: AGRICULTURE, R/AT: DAMBAL VILLAGE, TQ: MUNDARGI, DIST: GADAG-582113. 2. SMT. ANASUYA W/O. BASAVARAJ PYATI AGED ABOUT 54 YEARS, OCC: HOUSEHOLD, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 R/O: DAMBAL VILLAGE, TQ: MUNDARAGI, NOW HE IS R/AT: C/O. V.P. JAKKANGOUDAR, RANGANATH NILAYA, SECTOR NO.40, PLOT NO.25(D) NEAR STADIUM, NAVANAGAR, BAGALKOTE, TQ AND DIST BAGALKOTE-587103. 3. SRI. MAHESH S/O. BASAVARAJ PYATI AGED ABOUT 31 YEARS, OCC: PRIVATE JOB, R/O: DAMBAL VILLAGE, TQ: MUNDARAGI, NOW HE IS R/AT: C/O. V.P. JAKKANGOUDAR, RANGANATH NILAYA, SECTOR NO.40, PLOT NO.25(D) NEAR STADIUM, NAVANAGAR, BAGALKOT, TQ AND DIST: BAGALKOT-587103. …RESPONDENTS (BY SRI C.S. SHETTAR, ADVOCATE FOR R1; SRI. A.R. PATIL, ADVOCATE FOR R2 AND R3) THIS RFA IS FILED UNDER SEC. 96 OF CPC., PRAYING TO, THE JUDGMENT AND DECREE DATED 06.03.2021 PASSED IN O.S.NO.210/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE, MUNDARGI, 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 - 3 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is by the defendant No.1 against the judgment and decree dated 06.03.2021 passed in OS No.210/2017. Respondent No.1/plaintiff has filed the suit in OS No.210/2017 for the relief of partition against the appellant and respondent Nos.2 and 3. The said suit was decreed by the trial court by the impugned judgment and the same is challenged by the defendant No.1 in the present appeal. 2. We refer to the parties according to their ranking before the trial Court. 3. Brief facts of the case of both the parties before the trial court are as under: It is case of plaintiff that the plaint ‘A’ and ‘B’ schedule properties are joint family properties and they are in joint possession and enjoyment of the plaintiff and defendant No.1. Defendant No.2 is the wife of defendant No.1 and defendant No.3 is the son of defendants No.1 - 4 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 and 2. He further contends that their father Totappa Basappa Pyati succeeded to the following properties from his ancestors. Sl.No. Survey No. Measurement 1. 692/1+2B 3 Acres 2. 696/2 7 Acres 3. 593/2 16 Guntas 4. During the life time of his father, there was a partition between father of plaintiff and defendant No.1. It appears that a report was given in this regard to the revenue authority. Accordingly, ME No.187 dated 04.01.1996 was passed by the Revenue Department as per Ex.P.12. In the said partition, Sy.No.145/1A measuring 6 acres 9 guntas, Sy.No.193/1 measuring 8 acres 32 guntas, Sy.No.201/3B measuring 4 acres 4 guntas, Sy.No.249/1+2 measuring 3 acres 17 guntas and Sy.No.700/1A/1B+2+3+4/7B measuring 3 acres 36 gutnas, totally 26 acres 13 guntas were allotted to the share of the plaintiff. 5. Sy.No.145/1B measuring 6 acres 2 guntas, Sy.No.193/2 measuring 8 acres 32 guntas, Sy.No.201/3A - 5 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 measuring 4 acres 3 guntas, Sy.No.700/1A+ 1B+2+3+4/7A measuring 3 acres 36 gutnas, Sy. No.241/2C measuring 15 guntas and Sy.No.249/1+2 measuring 1 acre 9 guntas, totally 26 acres 11 guntas were allotted to the share of defendant No.1. 6. Father of the plaintiff and defendant No.1, i.e., deceased Totappa retained Sy.No.692/1+2B measuring 3 acres 3 guntas. Sy.No.696/2 measuring 7 acres and Sy.No.593/2 measuring 16 guntas. 7. In the said partition, Sy.No.249/1+2 measuring 4 acres 26 guntas was jointly retained in the name of plaintiff and defendant No.1. From the materials available on record, it also appears that House.No.963 and House.No.986 are also joint family properties. 8. It was also agreed between the parties during life time of their father that in the properties retained by the Totappa, after his death it shall be equally divided between plaintiff and defendant No.1. - 6 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 9. It is further contention of the plaintiff that their father died on 26.09.1995. Thereafter, defendant No.1 obtained the signature of plaintiff by misrepresenting him that he would mutate revenue records and to secure bus pass and railway pass. The defendant No.1 with the help of said signed papers created false records and reported to the revenue authorities that there was a partition in respect of properties retained by his father; and on the basis of the said application, revenue records were mutated on 30.06.1997 in ME No.1398. Plaintiff also contends that defendant No.1 on the basis of falsely created partition deed transferred Sy.No.692/1+2 measuring 3 acres 3 guntas and Sy.No.696/2 measuring 7 acres in the name of defendant No.2. The defendant No.2 transferred the very same property in favour of defendant No.3. All these transfers made by the revenue authorities are totally false and illegal. They were created without the plaintiff’s knowledge. - 7 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 10. The plaintiff also contended that VPC No.857/B, VPC No.761/A and VPC No.1435 are the properties purchased by his father in the name of defendant No.1 out of the joint family funds. Therefore, said properties also belong to the joint family. It is also contended that father of the plaintiff had purchased tractor and trailer bearing Regn.No.4492 and 4493. After the death of his father, defendant No.1 illegally transferred the said vehicles in his name and he sold the said vehicles and miss appropriated said proceeds and not divided it between himself and the plaintiff and when the plaintiff demanded for partition in the properties belonging to his father including the value of tractor and trailer sold by the defendant No.1, defendant No.1 went on postponing to share the same. Due to said reasons, plaintiff filed the suit in OS No.45/2015 in the court of Senior Civil Judge at Gadag. After filing of the said suit, defendant No.1 and elders of the village requested the plaintiff to withdraw the said suit and not to continue the proceedings so that they would hold panchayath for effecting partition. On the assurance - 8 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 of elders of the village, he withdrew the said suit. But, thereafter, defendants did not agree to effect partition and were holding the shares of the plaintiff. Hence, he was constrained to file the suit. With these reasons, he prayed for partition and separate possession of his half share in the suit ‘A’ and ‘B’ schedule properties. 11. At the time of filing of the suit, plaintiff has mentioned plaint ‘A’ and ‘B’ schedule properties, they are as under: DESCRIPTION OF SUIT PROPERTIES ANNEXURE-‘A’ Properties situated at Dambal village, Tq.Mundargi Re.Sy.No. Area Assessment 696/2 7 acres 10.85 692/1+2B 3 acres 3 guntas 03.25 593/2 16 guntas 00.74 249/1+2 4 acres 26 guntas - 9 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 ANNEXURE-‘B’ House and backyard situated at Dambal village, Tq.Mundargi Re.Sy.No. Area Assessment 857/B 26X46 2,50,000-00 761/A 21X30 1,50,000-00 1435 50X60 3,00,000-00 963 20X50 2,50,000-00 986 15X20 1,00,000-00 Total 10,50,000-00 12. The plaintiff filed two applications to amend the plaint and got deleted Sl.Nos.3 and 4 properties in the plaint ‘A’ schedule and entire ’B’ schedule properties from the plaint. Therefore, as on the date of passing of the judgment only item Nos.1 and 2 in plaint ‘A’ schedule were the subject matter of the suit. 13. Defendant No.1 in his written statement, admitted genealogy of the family and also admitted that the properties mentioned in Ex.P12 i.e. ME No.187 were joint family properties belonging to his father, plaintiff and defendant No.1. He also admitted that the partition of the year 1997 as mentioned in ME No.187 and allotment of the properties belonging to his father. It is also not in - 10 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 dispute that the properties as narrated in the plaint were allotted to the share of father of the plaintiff and defendant No.1. He denied other averments stated in the plaint. 14. It is the contention of the defendant No.1 that on 24.05.1997, the partition was effected between himself and plaintiff and he agreed to the said partition. Defendant No.1 gave up his right in respect of house and backyard bearing VPC Nos.963 and 989 in favour of the plaintiff and plaintiff has relinquished his right in respect of property bearing Sy.No.696/2 and Sy.No.692/1+2B. According to the said partition, report was given to revenue authorities to mutate the revenue records. The revenue authorities issued notice to plaintiff and after obtaining his consent passed mutation entry No.1398 dated 30.06.1997. Subsequent to the partition, defendant No.1 transferred his right over Sy.No.692/1+2 measuring 3 acres 3 guntas and Sy.No.696/2 measuring 7 acres in favour of defendant - 11 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 No.2 and thereafter, defendant No.2 transferred the said property in favour of defendant No.3. 15. Defendants further contended that after his father’s death, defendant No.1 purchased VPC No.857/B in the year 1998 from one Kulkarni and he obtained a land and constructed a house in the said land. He has been residing in the said house property along with his wife and children. It is not a joint family property. He further contended that in the partition of the year 1997, property bearing Sy.No.201/3B measuring 4 acres 4 guntas was given to the share of plaintiff and plaintiff sold the said property during the year 2000-2001 to one Bheemappa Kuvalli and he suppressed the said fact in the present suit. 16. Defendant No.1 has also contended that Sy.No.247/6 measuring 1 acre 34 guntas and Sy.No.247/8 measuring 15 guntas are also joint family properties and they are not included in the present suit. Therefore, suit is bad for not including all the joint family properties in the - 12 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 suit. With these reasons, he prays to dismiss the suit with costs. 17. Defendants No.2 and 3 adopted the written statement filed by the defendant No.1. 18. From the rival contentions of the parties, the trial Court framed the following issues: ISSUES 1. Whether the plaintiff proves that he and defendant No.1 are the members of Hindu un- divided family? 2. Whether the plaintiff further proves that mutation No. 1398 dated 30-06-1997 is created one? 3. Whether the defendant No.1 to 3 prove that suit is bad for non-inclusion of property as contended in para No.9 of their written statement? 4. Whether the defendant No.1 to 3 prove that there was already partition held in respect of all the joint family properties? - 13 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 5. Whether the plaintiff is entitled for the share in the property as claimed in plaint? 6. What order or decree? 19. Plaintiff to prove his contention examined himself as PW 1 and got marked 12 documents as Ex.P1 to P12. Defendants on their behalf got examined DW1 to DW3 and got marked thirty one documents as Ex.D1 to D31. 20. Learned trial judge after hearing the arguments of both the parties, appreciating the pleading and evidence on record, answered issue Nos.1, 3 and 4 in the negative and issue Nos.2 and 5 in the affirmative and granted the decree in favour of plaintiff and ordered that plaintiff is entitled for half share in the suit schedule properties. Same is challenged by the defendant No.1 in the present appeal. 21. During the pendency of this appeal, appellant- defendant No.1 has filed IA No.3/2022 under Order 41 Rule 27 of CPC., seeking permission to produce additional - 14 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 evidence and produced list with five documents. Respondent No.1/plaintiff has not filed any objection to the said application. 22. We have heard the arguments of learned counsel appearing for the appellant as well as respondent No.1. 23. The learned counsel for the appellant submits that at the time of filing of the suit, plaintiff has mentioned four items of properties in ‘A’ schedule and 5 item of properties in ‘B’ schedule. Thereafter, he filed two applications for amendment of the plaint and said applications were allowed by the trial Court without considering that the suit is for partition and according to the plaint averments, all the said properties are joint family properties. Accordingly, plaintiff got deleted properties at Sl.Nos.3 and 4 in the plaint ‘A’ schedule and deleted all the properties mentioned in the ‘B’ schedule. It was the contention of the defendant No.1 that after the death of his father, there was a partition between the - 15 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 plaintiff and defendant No.1. In the said partition, plaintiff has given up his right in respect of properties bearing Sy.No.696/2, 692/1+2B in favour of defendant No.1 and in turn defendant No.1 relinquished his right over the house properties bearing VPC No.963 and backyard bearing No.989 which was worth more than 50 to 60 lakhs at that point of time. According to the case of the plaintiff, Sy.No.593/2 and Sy.No.249/1+2 were joint family properties of plaintiff and defendant No.1, those properties were also deleted by way of amendment to the plaint including house property which was allotted to his share; plaintiff retained only Sy.No.696/2 and Sy.No.692/1+2B which are belonging to the defendant No.1 and the said two properties were allotted to the share of defendant No.1 in the partition of the year 1997. In fact plaintiff has relinquished all his right over the suit properties in favour of defendant No.1 by taking house property and backyard as stated above. Partition was sought only in respect of the properties allotted to the - 16 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 share of defendant No.1 in the partition of the year 1997. Therefore, the findings of the trial Court is erroneous. 24. Learned counsel for the appellant further submits that he has filed IA No.3/2022 seeking permission to lead additional evidence. In the affidavit filed in support of said application, the appellant has mentioned in detail the reasons for non-production of the said documents before the trial Court and also mischief played by the plaintiff by amending the plaint that was not disclosed before the trial Court. In view of these reasons, the said documents are very relevant to pass effective judgment. Hence, prayed to allow the said application and permit the appellant to lead additional evidence both oral and documentary and prays to allow the appeal as well as applications. 25. The learned counsel for the respondent No.1 vehemently contended that the contention of the appellant is not tenable. The amendment applications were filed and after hearing his objections, they were allowed by the - 17 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 trial court. There is no illegality in the said order. Admittedly, the said two agricultural lands were allotted to the share of father of plaintiff and defendant No.1, in the partition of the year 1991 and accordingly ME No.187 was passed. The alleged relinquishment of right over the properties by the plaintiff is nothing but a created document by the defendants. This was a specific contention of the plaintiff before the trial Court that there was no such partition effected as contended, during the year 1997. The defendant No.1 having worldly knowledge obtained signature of the plaintiff on a blank white paper by misrepresenting him that he would file an application to mutate the revenue records and also he would secure the pass from the KSRTC (Karnataka State Road Transport Corporation) as well as from railway authority for the benefit of plaintiff. He further contends that believing his brother (defendant No.1), he signed on the blank white paper. Misusing the same defendant No.1 created the said records. Therefore, the learned trial judge has rightly not accepted the said contention of the defendant No.1 about - 18 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 the partition of the year 1997. He further contends that the judgment passed by the trial Court is proper and justifiable and there are no reasons to interfere in the said finding. 26. He further contends that reasons assigned in support of IA No.2/2022 are not tenable. The matter was pending before the trial Court and he could have produced the documents before the trial Court. Therefore, the contention of the appellant is not sustainable and hence, prays to dismiss the appeal as well as application. 27. The following points emerge for our determination: 1) Whether the learned trial Judge erred in permitting the plaintiff to amend the plaint by deleting some of the items of the suit ‘A’ and ‘B’ schedule properties? 2) Whether the learned trial judge erred in decreeing the suit in respect of only two items of the suit - 19 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 properties leaving other properties which were admitted to be a joint family properties? 3) Whether the additional evidence sought to be produced under Order 41 Rule 27 of CPC are necessary for passing effective judgment by this Court? 4) What order? Point No.1 and 2: Both the points are interconnected and therefore, they are taken up together. 28. In the plaint, plaintiff has mentioned in detail about the properties allotted to the share of plaintiff, defendant No.1 and their father which are clearly mentioned in ME No.187, it is produced at Ex.P.12. It is an undisputed document and both the sides rely on the said document. According to the Ex.P.12, Sy.No.692/1+2B measuring 3 acres 3 guntas, Sy.No.696/2 measuring 7 acres and Sy.No.593/2 measuring 16 guntas were allotted to the share of Totappa - the father of plaintiff and - 20 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 defendant No.1. It appears that at the time of said partition, it was also agreed that after the death of Totappa, the said properties allotted to the share of Totappa shall be divided equally between the plaintiff and defendant No.1 and revenue records shall be amended accordingly. Ex.P12 also reveals that Sy.No.249/1+2 measuring 4 acres 26 guntas was jointly kept in the name of plaintiff and defendant No.1. At the time of filing of the suit all these properties were shown in the plaint ‘A’ schedule. 29. According to the contention of the defendant No.1 during the year 1997, there was a partition between plaintiff and defendant No.1 and in the said partition, plaintiff and defendant No.1 were exchanged house property and backyard bearing Nos.963 and 986 (at Sl.NO.4 and 5 of the ‘B’ schedule) and it’s value was more than 50-60 lakhs as on the date of relinquishment of the right and in turn plaintiff agreed to relinquish his right in respect to Sy.No.696/2 and 692/1+2B. Plaintiff took house - 21 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 property and defendant No.1 took agricultural property stated above. Accordingly, the revenue records were mutated. The revenue records produced by both the parties reveal that there were entries made by the revenue authorities on the applications of the parties. The said entries were disputed and denied by the plaintiff. 30. During pendency of the suit, plaintiff filed an application and withdrew his contentions by deleting Sy.No.593/2 measuring 16 guntas and Sy.No.249/1+2 measuring 4 acres 26 guntas from the plaint schedule and entire properties mentioned in the plaint ‘B’ schedule. As rightly submitted by the learned counsel for the appellant / defendant No.1, the properties in which plaintiff has given up his right in favour of defendant No.1 in exchange of house property was retained for the partition and other properties which are said to be taken by the plaintiff from defendant No.1 were deleted from the plaint schedule. Plaintiff admitted that plaint ‘A’ and ‘B’ schedule properties were joint family properties and he was permitted to - 22 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 withdraw his admission determinant to the rights of defendant No.1. The partition is restricted to the properties said to be allotted to the share of defendant No.1. It also leads to technical defect of suit for partial partition. Therefore, the said amendment of the plaint was incorrect. Looking to the pleadings of the parties as well as documents, the contentions of the defendant No.1 cannot be ruled out. 31. The learned trial judge before allowing the application could have considered the said fact. It appears that the said pleading prior to amendment was a admission in favour of defendant No.1 regarding joint-ness of the four properties which were allotted to the share of father as well as jointly allotted to the share of plaintiff and defendant No.1. 32. Looking to the contentions of both the parties, the house properties mentioned in the item Nos.1 to 3 of the plaint ‘B’ schedule(prior to amendment of the plaint) were said to be self acquired properties of defendant No.1. - 23 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 In the affidavit filed in support of amendment application by the plaintiffs it was contended that in view of the decree passed in OS No.92/2014, said properties needs to be deleted from the plaint. The said contention was accepted by the trial court. 33. Defendant No.1 to prove his contentions intends to produce additional documents and lead additional evidence. In view of the contentions of both the parties, it appears that the said documents are relevant for passing of the effective judgment. 34. It is true that defendant did not seriously object for amendment of plaint and hence learned trial judge without considering the above facts proceeded to allow the application. The said amendments led to technical defects in the plaint. Suit is bad for non-inclusion of all the properties allotted to the share of Totappa without any pleading in this regard. This is a suit for partition. All the joint family properties need to be partitioned and the court has to pass effective judgment by keeping in mind the - 24 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 rights of both the parties. Therefore, it is just and necessary to permit the defendant No.1 to lead additional evidence to prove his contentions. In view of the said reasons, the application filed under Order 41 Rule 27 of CPC needs to be allowed. 35. Looking to the contentions of the appellant, as discussed above, reconsideration of the impugned judgment passed by the trial court is required. The trial court shall also consider additional evidence produced by the parties. The trial court shall also consider whether the properties which were deleted on the application of the plaintiff were/are joint family properties as on the date of the suit as per the pleadings of the plaintiff. To consider all these facts, it is necessary to relegate this matter to the trial court so that rights of both the parties can be decided fully and finally on merits. It also enables both the parties to lead additional evidence if any, in support of their contentions. For the aforesaid reasons, we are of the view that impugned judgment and decree passed by the trial - 25 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 court is incorrect and needs to be set aside and suit shall be restored so that the trial Court on considering the pleadings and additional evidence if any shall pass suitable orders. Accordingly, we answer point Nos.1 to 3 in the affirmative and proceed to pass the following: ORDER The appeal is allowed. No costs. The Judgment and decree dated 06.03.2021 passed in OS No.210/2017 by the learned Senior Civil Judge and JMFC., Laxmeshwar sitting at Mundargi is hereby set aside. IA No.3/2022 filed under Order 41 Rule 27 of CPC is allowed. Documents are taken on record. The suit is restored to file. The trial Court is directed to permit the parties to lead the evidence on additional documents and pass appropriate judgment after assigning the detailed reasons on issue No.4. - 26 - NC: 2025:KHC-D:2044-DB RFA No. 100034 of 2021 The parties are directed to appear before the trial Court on 07.04.2025 without awaiting further notice. This Court has not made any adjudication on merits on these issues. Therefore, without influencing on any reasons assigned above, the trial court shall consider the contentions of both the parties and pass appropriate orders. All the contentions of the parties are kept open. The Registry is directed to transmit the records forthwith to the trial court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB LIST NO.: 1 SL NO.: 8