- 1 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR REGULAR FIRST APPEAL NO. 100170 OF 2022 (PAR/POS) BETWEEN: 1. DANAPPA S/O. BHIMAPPA MALAPPANAVAR AGE. 44 YEARS, OCC. AGRICULTURE, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. 2. CHANNAPPA S/O. BHIMAPPA MALAPPANNAVAR AGE. 39 YEARS, OCC. AGRICULTURE, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. …APPELLANTS (BY SRI. ABHILASH HANAMMANAVAR, ADVOCATE FOR A2; SRI. D.M. MALLI, ADVOCATE FOR A1) AND: 1. SMT. SHARAWWA W/O. BHIMAPPA MALAPPANAVAR AGE. 69 YEARS, OCC. HOUSEHOLD WORK, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. 2. SADASHIVA S/O. BHIMAPPA MALAPPANAVAR AGE. 34 YEARS, OCC. AGRICULTURE, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.01.28 10:16:07 +0530 - 2 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 3. RAMAPPA S/O. BHIMAPPA MALAPPANNAVAR AGE. 74 YEARS, OCC. AGRICULTURE, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. 4. BASAPPA S/O. DANAPPA MALAPPANNAVAR AGE. 74 YEARS, OCC. AGRICULTURE, R/O. ARALIMATTI, TQ. GOKAK, DIST. BELAGAVI 591307. 5. SMT. CHANNAWWA W/O. DANAPPA MALAPPANNAVAR AGE. 34 YEARS, OCC. HOUSEHOLD WORK, R/O. ARALIMATTI, MUDALGI, TQ. GOKAK, DIST. BELAGAVI 591312. 6. SMT. PARAVVA W/O. DANAPPA MALAPPANAVAR AGE. 25 YEARS, OCC. HOUSEHOLD WORK, R/O. ARALIMATTI, MUDALGI, TQ. GOKAK, DIST. BELAGAVI 591307. …RESPONDENTS (BY SRI. SHRIDHAR HIREMATH, ADVOCATE FOR R1 AND C/R2; SRI. S.L. LINGANGOUDAR, ADVOCATE FOR R5; NOTICE TO R4 SERVED; R3-NOTICE DISPENSED WITH) THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.04.2021 PASSED IN O.S.NO.407/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE GOKAK, PARTLY 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 RAMACHANDRA D. HUDDAR - 3 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by appellants, challenging the judgment and preliminary decree dated 05.04.2021, passed in O.S.No.407/2017, by the learned I Addl. Senior Civil Judge, Gokak (for short, ‘trial Court’). 2. For convenience, the parties are referred to as per their ranking before the trial Court. The appellants were the defendants No.1 and 2, the respondents No.1 and 2 were the plaintiffs, and respondents No. 3 to 6 were the other defendants. The plaintiffs filed a suit against the defendants for partition and separate possession in respect of suit schedule properties. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: 4. It is the case of the plaintiffs that one Danappa was the original propositus. He had a wife by name Nilawwa, who died on 17.11.1995, leaving behind the plaintiffs and defendants No. 1 and 2 as class I legal heirs. - 4 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 It is contended that item No.6 and 7 of the suit schedule properties are the ancestral properties of the plaintiffs and defendants and item No.1 to 5 are acquired out of the joint family nucleus. It is contended that suit schedule properties are the undivided joint family properties of plaintiffs and defendants. It is contended that no partition is effected between the plaintiffs and defendants. The plaintiffs requested the defendants to effect the partition, but the defendants refused to effect the same. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement. Defendant No.2 filed a memo adopting the written statement filed by defendant No.1. Defendants No.1 and 2 contended that item No.5 of the suit schedule property is the self acquired property of defendants No.1 and 2. The said property was purchased by them under a registered Sale Deed dated 23.10.2003. It is contended that plaintiffs - 5 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 and other defendants have no right to claim a share in item No.5 of the suit schedule property. It is further contended that plaintiffs and defendants are in joint possession of the other suit schedule properties, except item No.5 of the suit schedule property. Hence, pray to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the following issues and additional issues: ISSUES 1. Whether the plaintiffs proves that suit schedule properties are ancestral joint family properties of themselves defendants? 2. Whether the defendant No.1 and 2 proves that Sy.No.78/2 measuring 04 acres situated at Aralimatti village is their self acquired property? 3. Whether the plaintiffs are entitled for the reliefs claimed in the suit? 4. What order or decree? ADDL. ISSUES 1. Whether the defendants No.5 and 6 proves that item No.8 is exclusive property of defendant No.5 and item No.9 and 10 are self acquired properties of defendant No.6? - 6 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 7. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1 and marked 31 documents as Exs.P.1 to P.31 and examined one witness as PW.2. In rebuttal, defendant No.2 was examined as DW.1 and examined two witnesses as DW.2 and DW.3 and marked 10 documents as Exs.D1 to D.10. The trial Court, after recording the evidence, hearing both sides and on assessment of oral and documentary evidence, answered Issue No.1 in the affirmative, Issue No. 2 and additional Issue No.1 in the negative, Issue No.3 partly in the affirmative and Issue No.4 as per the final order, and partly decreed the suit of the plaintiffs. It is declared that plaintiffs and defendants No.1 and 2 are entitled to 1/12th share each in item No.6 and 7, 1/4th share each in Sl.No.1 to 5 and 8 to 10, and also in respect of house properties bearing GPC.No.609 & GPC.No.770. It is also declared that defendants No.3 and 4 are entitled to 1/3rd share each in Sl.No.6 and 7 properties. Plaintiffs are directed to include house properties bearing GPC.No.607 and GPC.No.770 in Final Decree Proceedings. The defendant Nos.1 and 2 - 7 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 aggrieved by the judgment and preliminary decree passed in O.S.No.407/2017 filed this Regular First Appeal only in respect of item No.5 of the suit schedule property. 8. Heard the learned counsel appearing for the defendants No.1 and 2 and the learned counsel for the plaintiffs. 9. Learned counsel for the defendants No.1 and 2 submits that item No.5 is the self-acquired property of defendants No.1 and 2 and the same was acquired out of their own income. It is submitted that the plaintiffs have no right to claim a share in item No.5 of the suit schedule property. It is further submitted that the trial Court has not properly appreciated the material placed on record and committed an error in granting the share in item No.5 of the suit schedule property. Hence, on these grounds, they prayed to allow the appeal. 10. Per contra, learned counsel for the plaintiffs submits that the family was possessing agricultural lands - 8 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 i.e., Sl.No.6 and 7. Defendants No.1 and 2 had purchased item No.5 of the suit schedule property out of the income derived from the properties at Sl.Nos.6 and 7 and he submits that, item No.5 is the joint family property of the plaintiffs and defendants. He submits that, defendants No.1 and 2 have not produced any documents, to show that they had separate source of income for purchasing item No.5 of suit schedule property. He submits that the trial Court was justified in granting a share in item No.5 of the suit schedule property. Hence, on these grounds, he prays to dismiss the appeal. 11. Perused the records and considered the submissions of the learned counsel for the parties. 12. The points that arise for our consideration are: Point No.1: Whether the defendant No.1 and 2 prove that item No.5 is the self acquired property of defendants No.1 and 2 ? Point No.2: What order or decree? - 9 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 13. Point No.1: It is the case of the plaintiffs that Danappa had a wife by name, Nilawwa. They had three children namely Bhimappa, Ramappa, and Basappa. Bhimappa died leaving behind Sharawwa. Sharawwa is Plaintiff.No.1. They had three children named Danappa, Channappa, and Sadashiva. Danappa is defendant No.1, Chanappa is defendant No.2, Sadashiva is plaintiff No.2. Basappa is defendant No.4 and Ramappa is defendant No.3. 14. It is the case of the plaintiffs that item No.6 and 7 are the ancestral properties of the plaintiffs and defendants, and out of the income derived from the item No.6 and 7, the plaintiffs and defendants have purchased the properties jointly. The suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. The plaintiffs and defendants are members of the Hindu Undivided Family and no partition is effected between the plaintiffs and defendants. The plaintiffs demanded partition and separate possession, but the - 10 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 defendants refused to the same. The plaintiffs to substantiate their case, examined plaintiff No.2 as PW.1. He reiterated the plaint averments in his examination-in- chief and produced the documents marked as Exs.P.1 to P.31 and also examined one witness as PW.2. In rebuttal, defendant No.2 was examined as DW.1. He has reiterated the written statement averments in the examination-in- chief and he has deposed that item No.5 of the suit schedule property is the self-acquired property of defendant Nos.1 and 2 and they had purchased the item No.5 of the suit schedule property out of their own income. The defendants have produced the documents marked as Ex.D1 to D.10 and examined the attesting witnesses as DW.2 and DW.3. They have deposed that defendants No.1 and 2 purchased the suit schedule properties out of their income and it is their self-acquired property. 15. From the perusal of the entire evidence based on the record, though it is the defense of defendants No.1 - 11 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 and 2 that item No.5 is the self acquired property, admittedly item No.6 and 7 are the ancestral properties and family had a joint family nucleus. It is well established principle of law that in a suit for partition and separate possession, the initial burden is on the plaintiff to establish the nature of the suit schedule properties. Once the plaintiff establishes the nature of suit schedule properties, the burden shifts on the other side to establish that the property is the self-acquired property. In the instant case, the defendants except leading oral evidence, have not produced any records to establish that they were having separate source of income for purchasing item No.5 of the suit schedule property. During the cross-examination, DW.1 has admitted that except the agricultural income, he had no other avocation. Hence, defendants No.1 and 2 have failed to establish that they have purchased item No.5 of the suit schedule property out of their own income. The trial Court considering the admission of DW.1 and documents produced by the plaintiffs, has rightly - 12 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 concluded that defendants No.1 and 2 have failed to establish that it was acquired out of their own income. 16. As observed above, the defendants have failed to produce the materials, to show that other than agriculture, they have other occupations and income, to purchase the item No.5 of the suit schedule property. The defendants have failed to establish that it was purchased out of their own income. On the contrary, the plaintiffs have produced the records to show that it was purchased out of the income derived from item No.6 and 7 of the suit schedule properties. 17. Hence, we hold that defendants No.1 and 2 have failed to establish that item No.5 of the suit schedule property was purchased out of their own income and item No.5 is the joint family property of the plaintiffs and defendants. The trial Court was justified in granting share to the plaintiffs and defendants other than in item No.5 of the suit schedule property. We do not find any error in the impugned judgment. - 13 - NC: 2025:KHC-D:527-DB RFA No. 100170 of 2022 18. In view of the above discussions, we answer Point No.1 in the negative. Accordingly, we proceed to pass the following: 19. Point No.2: Accordingly we proceed to pass following: ORDER i) The Appeal is dismissed. ii) The judgment and preliminary decree dated 05.04.2021, passed in O.S.No.407/2017, by the learned I Addl. Senior Civil Judge, Gokak, is confirmed. iii) No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE VB/Ct-cmu/LIST NO.: 2 SL NO.: 10