- 1 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.100480 OF 2021 BETWEEN: RAMESH S/O MAHALINGAPPA TELI, AGE. 48 YEARS, OCC. AGRICULTURE, R/O. MUDHOL, TQ. MUDHOL, DIST. BAGALKOT-587101. …APPELLANT (BY SRI. PAVAN B. DODDATTI, ADVOCATE) AND: 1. SMT. TUNGAWWA W/O ANNAPPA TELI AGE. 53 YEARS, OCC. AGRICULTURE, R/O.MUDHOL, TQ. MUDHOL, DIST.BAGALKOT-587101. 2. SMT. LAXMI @ RENUKA W/O JAGADISH TELI AGE. 53 YEARS, OCC. AGRICULTURE, R/O.MUDHOL, TQ. MUDHOL, DIST.BAGALKOT-587101. 3. BHUVANESHWARI D/O JAGADISH TELI AGE. 23 YEARS, OCC. STUDENT, R/O.MUDHOL, TQ. MUDHOL, DIST.BAGALKOT-587101. 4. SAHANA D/O JAGADISH TELI AGE. 21 YEARS, OCC. STUDENT, R/O.MUDHOL, TQ. MUDHOL, DIST.BAGALKOT-587101. …RESPONDENTS (BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE FOR R2 TO R4; NOTICE TO R1 IS SERVED & UNREPRESENTED) THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.10.2021 PASSED IN R.A.NO.9/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BAGALKOT SITTING AT JAMAKHANDI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.08.2019 PASSED IN O.S. NO.5/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC. Digitally signed by YASHAVANT NARAYANKAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 THIS APPEAL, COMING ON FOR FINAL HEARING, 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 – appellant challenging the judgment and decree dated 21.10.2021 in R.A.No.9/2020 on the file of the I Additional District and Sessions Judge, Bagalkot, Sitting at Jamkhandi1 allowing the appeal and setting aside the judgment and decree dated 07.08.2019 in O.S.No.5/2018 on the file of the Principal Senior Civil Judge and JMFC, Mudhol2 rejecting the counter claim of defendants No.2 to 4 in respect of Item Nos.1 and 3 of the counter claim schedule properties. 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 that the plaintiff, defendant No.1 and one Jagadish are the children 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 of Mahalingappa and Gurawwa. Defendant No.2 is the wife of late Jagadish and defendants No.3 and 4 are the children of late Jagadish and defendant No.2. It is stated that Jagadish died on 30.04.2007. Mahalingappa died during 2007 and his wife Gurawwa died during 2012. The plaintiff has filed suit seeking relief of partition and separate possession claiming 1/3rd share in schedule ‘B’ property. It is also stated in the plaint that, there is no partition in the joint family properties and as such the plaintiff and defendant No.1 are entitled for 1/3rd share each and defendants No.2 to 4 are together entitled for 1/3rd share in the suit schedule properties. 4. After service of notice, the defendant No.1 served, remained absent and accordingly placed ex-parte. Defendants No.2 to 4 have entered appearance and filed detailed written statement admitting the relationship between the parties and also stated that, the suit properties are the ancestral properties of the parties. Defendants No.2 to 4 have filed counter claim and - 4 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 contended that Item Nos.1 to 5 of the counter claim schedule properties are also required to be considered as the joint family properties. It is the case of the defendants No.2 to 4 that counter claim Item Nos.1 and 3 properties were purchased in the name of the plaintiff out of joint family nucleus and further Item Nos.2, 4 and 5 properties are standing in the name of joint name of plaintiff, Defendants No.1 and 2 and therefore sought for allotment of the respective shares in terms of the prayer made in the counter claim, hence the defendants No.2 to 4 sought for appropriate relief in the suit. 5. 5. The plaintiff has filed rejoinder to the counter claim filed by defendants No.2 to 4 and stated that the plaintiff has purchased counter claim Item Nos.1 and 3 through his independent income and further the counter claim Item No.2 property stand in the name of the plaintiff and the husband of the defendant No.2 – Jagadish and the said Jagadish has relinquished his share in respect of Item No.2 of the property and accordingly sought for rejection - 5 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 of the counter claim vis-a-vis, decreeing the suit as averred in the plaint. 6. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined 2 witnesses as PW.1 and PW.2 and produced 3 documents and same were marked as Exs.P.1 to P.3. The defendant No.2 was examined as DW.1 and got marked 5 documents as Exs.D.1 to D.5. 7. The Trial Court after considering the material on record, by its judgment and decree dated 07.08.2019 decreed the suit and rejected the counter claim in respect of Item Nos.1 and 3 of the counter claim schedule properties. Feeling aggrieved by the same, the defendants No.2 to 4 have preferred R.A.No.9/2020 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 21.10.2021, allowed the appeal, consequently, set aside - 6 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 the judgment and decree in O.S.No.5/2018 and further held that the plaintiff and defendant No.1 are entitled for 1/3rd share each and defendants No.2 to 4 are together entitled for 1/3rd share in the counter claim Item Nos.1 and 3 properties also. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. 8. This Court, vide order dated 21.12.2021, has formulated the following substantial question of law: “Whether the First Appellate Court was justified in allowing the Counter Claim of respondents no.2 to 4 in respect of item no.1 land bearing R.S.No.203/2B and item no.3 CTS No.551/B, when respondents no.2 to 4 have failed to prove that their family has got sufficient source of income from suit properties?” 9. I have heard Sri.Pavan B Doddatti, learned counsel appearing for the appellant and Sri.Shivaraj P Mudhol, learned counsel appearing for the respondents No.2 to 4. - 7 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 10. Learned counsel appearing for the appellant contended that the First Appellate Court has committed an error in interfering with the judgment of the Trial Court wherein the plaintiff has purchased Item Nos.1 and 3 of the counter claim schedule properties as per Ex.P.3 and P.2 respectively. He further contended by referring to the finding recorded by the Trial Court that the plaintiff and defendants are entitled for equitable share in suit schedule properties as well as Item Nos.2, 4 and 5 of counter claim schedule properties. 11. Nextly, it is contended by the learned counsel appearing for the appellant that it is the duty of defendants No.2 to 4 to prove that the Item Nos.1 and 3 of the counter claim schedule properties were purchased by the plaintiff through the nucleus of the joint family and as defendants No.2 to 4 have failed to prove the same as averred in the counter claim in the suit and therefore sought for interference of this Court. - 8 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 12. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court. It is also contended by the learned counsel appearing for the respondents that, the Item No.1 of the schedule properties was purchased as per the registered Sale Deed dated 16.05.2005 and Item No.3 of the counter claim schedule properties as per the registered Sale Deed dated 15.05.2010 (Ex.P.2) and these properties have been purchased in the name of the plaintiff from the income of the joint family and therefore sought for dismissal of the appeal holding that the defendants No.2 to 4 are also entitled for share in Item Nos.1 and 3 of the counter claim properties. 13. 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. - 9 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 14. On careful examination of the findings recorded by both the Courts below, it is relevant to extract the genealogy of the parties which reads as under: Mahalingappa (Propositus) (Died in the year 2007) Gurawwa (Died in the year 2012) Tungawwa Jagadish Ramesh (D-1) (Died on 30.04.2007) (Plaintiff) Laxmi (Wife)(D-2) Bhuvaneshwari Sahana (D-3) (D-4) 15. Perusal of the genealogy would indicate that plaintiff, defendant No.1 and one Jagadish are the children of late Mahalingappa and late Gurawwa. Jagadish died on 30.04.2007 leaving behind his legal representatives – defendant Nos.2 to 4. Plaintiff has filed suit seeking partition and separate possession in respect of the suit schedule properties and same came to be decreed by both - 10 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 the Courts below holding that plaintiff and defendant No.1 are entitled for 1/3rd share each and defendants No.2 to 4 are entitled for 1/3rd share together in the suit schedule properties. 16. There is no dispute with regard to the suit schedule properties, however, the defendant no.2 to 4 have preferred counter claim stating that there are five Items of the joint family in which the division has to be made as per law. The plaintiff has admitted with regard to Item Nos.2, 4 and 5 of the counter claim schedule properties as joint family properties, however, filed rejoinder to the counter claim stating that Item No.1 of the counter claim schedule property was purchased as per the registered Sale Deed dated 16.05.2005 (Ex.P.3). Undisputedly, it is the duty of defendants No.2 to 4 to substantiate their case that the Item No.1 of the counter claim schedule property as joint family property and in this regard no independent witness has been examined and further perusal of the Sale Deed date 16.05.2005 (Ex.P.3) - 11 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 makes it clear that the plaintiff has purchased the same through his independent income and therefore I am of the view that Item No.1 of the counter claim schedule property is exclusively belonged to the plaintiff. 17. 17. Insofar as the Item No.3 of the counter claim schedule properties is concerned, I have carefully examined the rejoinder to the counter claim filed by the plaintiff (Ramesh) and paragraph No.4 demonstrates that the plaintiff has admitted that Sl.Nos.3 to 5 are the ancestral properties of plaintiff and Defendants No.2 to 4. Following the declaration of law made by this Court in the case of Janatha Dal Party Bengaluru vs. The Indian National Congress and Others reported in ILR 2014 KAR 4726, wherein it is held that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. Since the plaintiff in the present case admits that paragraph No.4 of the rejoinder that the Item No.3 is also the joint family property and therefore the appellant herein cannot contend contrary to the pleadings - 12 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 before the Trial Court. In the result, the substantial question of law referred to above partly favours the plaintiff in respect of Item No.1 of the counter claim schedule properties. 18. In the result, I pass the following: ORDER i. Appeal is allowed in part. ii. Judgment and decree dated 21.10.2021 in R.A.No.9/2020 on the file of the I Additional District and Sessions Judge, Bagalkot, sitting at Jamkhandi is partly allowed in respect of Item No.1 of counter claim schedule properties. iii. Judgment and decree dated 07.08.2019 in O.S.No.5/2018 on the file of the Principal Senior Civil Judge and JMFC, Mudhol is decreed in part holding that the plaintiff and defendant No.1 are entitled for 1/3rd share each in the suit schedule - 13 - NC: 2025:KHC-D:6395 RSA No. 100480 of 2021 properties and Item Nos.2 to 5 of the counter claim properties. iv. Defendants No.2 to 4, togetherly entitled for 1/3rd share in the suit schedule properties and in Item Nos.2 to 5 of the counter claim properties. Sd/- (E.S.INDIRESH) JUDGE SH CT:VP LIST NO.: 1 SL NO.: 37