- 1 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 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. 100759 OF 2023 (PAR/DEC-) BETWEEN: SHIVAPPA S/O. CHANDRAPPA GHANTI, DIED BY HIS LRS 1. SMT. GOURAMMA W/O. SHIVAPPA GHANTI, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, 2. DYAMAVVA D/O. SHIVAPPA GHANTI, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, 3. NEELAMMA D/O. SHIVAPPA GHANTI, AGE: 52 YEARS, OCC: JOB, 4. GANGAMMA D/O. SHIVAPPA GHANTI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, 5. RENUKA D/O. SHIVAPPA GHANTI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, 6. SHIVALINGAPPA S/O. VIRUPAKSHAPPA GHANTI, AGE: 59 YEARS, OCC: AGRICULTURE, ALL APPELLANTS ARE R/O. BODANAYAKADINNI-587115 TQ: DIST: BAGALKOTE. …APPELLANTS (BY SMT. SHAILA BELLIKATTI, ADVOCATE) AND: SMT. GIRIJA D/O. JAMBANNA GHANTI, DIED DURING PENDENCY OF SUIT AND THE LEGAL HEIRS ARE ALREADY ON RECORD AS PLAINTIFF NO.2 TO 4. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 1. SMT. UMA D/O. JAMBANNA GHANTI, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O. MUDARAGI CHAWL, DORA GALLI, GADAG-582101, TQ: & DIST: GADAG. 2. MALLESHI S/O. JAMBANNA GHANTI, AGE: 54 YEARS, OCC: DAIRY MILK, R/O. MUDARAGI CHAWL, DORA GALLI, GADAG-582101, TQ: & DIST: GADAG. 3. UMADEVI D/O. SHIVAPPA GHANTI, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O. BODANAYAKADINNI-587115, TQ: DIST: BAGAKOTE. 4. LIMBAVVA D/O. SHIVAPPA GHANTI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. BODANAYAKADINNI-587115, TQ: DIST: BAGAKOTE. 5. BASAVVA D/O. SHIVAPPA GHANTI, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O. BODANAYAKADINNI-587115, TQ: DIST: BAGAKOTE. 6. SARASWATI D/O. SHIVAPAP GHANTI, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. BODANAYAKADINNI-587115, TQ: DIST: BAGAKOTE. 7. SHANTAVVA D/O. SHIVAPPA GHANTI, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O. BODANAYAKADINNI-587115, TQ: DIST: BAGAKOTE. 8. SMT. PREMA W/O. BASAPPA NAGANAGOUDAR, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, - 3 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 R/O. ALABANNUR-584128, TQ: SINDHANUR, DIST: RAICHUR. 9. ASHOK S/O. PARAPPA GHANTI, AGE: 42 YEARS, OCC: DAIRY WORK, R/O. MUDARAGI CHAWL, DORA GALLI, GADAG-582101, TQ: AND DIST: GADAG. 10. SMT. CHANNABASAVVA W/O. HUCHACHAPPA GHANTI, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O. MUDARAGI CHAWL, DORA GALLI, GADAG-582101, TQ: AND DIST: GADAG. 11. MALLAVVA D/O. HUCHCHAPPA GHANTI, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O. MUDARAGI CHAWL, DORA GALLI, GADAG-582101, TQ: AND DIST: GADAG. NOTE: PLAINTIFF NO.4/ RESPONDENT NO.4 SMT. SHARADA W/O. KAMATAR, AGE: 56 YEARS, OCC: HOUSEHOLD WORK, R/O. NARAGUND, TQ: NARAGUND, DIST: GADAG IS DEAD AND LEGAL HERIS ARE NOT BROUGHT ON RECORD. …RESPONDENTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR C/R1) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PLEASE TO ALLOW THIS SECOND APPEAL BY SETTING ASIDE THE JUDGMENT DATED 21.04.2023 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE BAGALKOTE IN R.A.NO. 147/2019 BY ALLOWING THE APPEAL FILED BY THE APPELLANTS BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.07.2019 IN O.S.NO.38/2012 PASSED BY IST ADDITIONAL SENIOR CIVIL JUDGE BAGALKOTE AND BE PLEASED TO DISMISS THE SUIT BEARING O.S.NO.38/2012 PASSED BY IST ADDITIONAL - 4 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 SENIOR CIVIL JUDGE BAGALKOTE HOLDING THAT THE SUIT IN RESPECT OF SY.NO.153/3 IS DISMISSED AND DECREE THAT THE DEFENDANT NO. 1 (A) TO 1(D) 1(H) AND DEFENDANT NO.2 ARE OWNERS OF THE SY NO.153/3 BY WAY OF POSSESSION IN THE INTEREST AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the legal representatives of defendant Nos.1 and 2, assailing the judgment and decree dated 21.04.2023 passed in RA No.147/2019 on the file of Principal District and Sessions Judge, Bagalkote (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 16.07.2019 passed in OS No.38/2012 on the file of I Additional Senior Civil Judge, Bagalkote (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. - 5 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. It is the case of the plaintiffs that, the plaintiffs are the children of Jambanna and Gouramma. The original propositus – Basappa had four children namely Parappa (father of D3 and D4), Bhimappa (died as bachelor), Jambanna (father of the plaintiffs) and Huchchappa (husband of D5 and father of D6). It is the case of the plaintiffs that, the suit schedule properties are belongs to original propositus-Basappa and as such, the plaintiffs have right over the suit schedule properties. It is the specific contention of the plaintiffs that, the defendant Nos.1 and 2 are not the family members of the plaintiffs and the defendant Nos.1 and 2 have fabricated revenue records and got their name entered in respect of the land bearing Sy.No.153/3. Hence, the plaintiffs have filed suit seeking relief of partition and specific performance. 4. After service of summons, the defendant No.2 entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the - 6 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 contesting defendant that, the defendants are in possession of suit schedule property and the suit schedule property was given to the defendant Nos.1 and 2 by the original propositus-Basappa as the defendant Nos.1 and 2 are cultivating the land in possession and based on the Vardi given to that effect, the defendant Nos.1 and 2 are in possession of the land bearing Sy.No.1593 and accordingly, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiffs have examined one witness as PW1 and got marked 23 documents as Exs.P1 to P23. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 61 documents as Exs.D1 to D61. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 16.07.2019 decreed the suit and feeling aggrieved by the same, the defendant Nos.1 and 2 have preferred Regular Appeal in RA No.147/2019 on the file of First Appellate Court and the said appeal was resisted by the plaintiffs. The First Appellate Court after re- - 7 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 appreciating the facts on record, by its judgment and decree dated 21.04.2023 dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in OS No.38/2012. Being aggrieved by the same, the legal representatives of defendant Nos.1 and 2 have preferred this Regular Second Appeal. 8. I have heard Smt. Shaila Bellikatti, learned counsel appearing for the appellants and Sri. Hanumanthreddey Sahukar, learned counsel appearing for the caveator / respondent No.1. 9. Smt. Shaila Bellikatti, learned counsel appearing for the appellants contended that, the finding recorded by both the Courts below in respect of the suit property bearing Sy.No.153/3 is incorrect and the appellants herein are in possession of suit schedule property as the said property was given to the defendant Nos.1 and 2 by Basappa as per the Vardi and therefore, sought for interference of this Court. 10. Per Contra, Sri. Hanumanthreddey Sahukar, learned counsel appearing for the caveator / respondent No.1 sought to justify the impugned judgment and decree passed by both the - 8 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 Courts below and accordingly, request for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. In order to ascertain the relationship between the parties as averred in the plaint, the genealogy reads as under: Basappa (dead) Mallawwa(dead) Parappa Bhimappa Jambanna Huchchappa (dead) (dead without any issues) (dead) (dead) Neelamma Gouramma Chanabasawwa (dead) (dead) (D-5) Prema Sushila Ashok Mallawwa (D-3) (dead) (D-4) (D-6) Sharada Veerupaxappa Girija Uma Mallesh (P-5) (dead without marriage) (P-2) (P-3) (P-4) 12. On careful examination of the genealogy would indicate that, the original propositus – Basappa had four children namely Parappa, Bhimappa, Jambanna and Huchchappa. Plaintiffs are the children of Jambanna. Defendant Nos.1 and 2 are not the family members of the original - 9 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 propositus-Basappa. The entire case of the plaintiffs is that, the suit schedule properties are the joint family properties of the original propositus-Basappa. On the other hand, the specific contention of the defendant Nos.1 and 2 that, the Vardi has been given by said Basappa as per Ex.P4 (Ex.D6), where the name of the defendants was reflected in the revenue records and accordingly, sought for consideration of the appeal. 13. In the light of the submission made by the learned counsel appearing for the parties, as the suit property bearing Sy.No.153/3 has not been given to the defendant Nos.1 and 2 through a registered instrument and therefore, the submission made by the learned counsel appearing for the appellants cannot be accepted. Though the learned counsel appearing for the appellants submitted that, the appellants are in possession of the land bearing Sy.No.153/3, however, the said aspect cannot be considered as no title has been transferred from Basappa in favour of defendant Nos.1 and 2 in a manner known to law. 14. Hence, appeal is dismissed at the stage of admission as the defendants/appellants have not made out a - 10 - NC: 2025:KHC-D:5665 RSA No. 100759 of 2023 case for framing substantial question as required under Section 100 of CPC. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 21