- 1 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 03RD DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100144 OF 2014 (PAR) BETWEEN: 1. SMT. CHANNAWWA W/O. BASALINGAYYA HIREMATH, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. 2. SMT. SHOBHA W/O. GURUPADAYYA HALAGIMATH, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.623, 2ND MAIN, 4TH CROSS, BASAV NAGAR, BENGALURU-37. 3. SMT. MAHANANDA W/O. NAMASAYYA HIREMATH, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: SULDHAL VILLAGE, TQ: GOKAK, DIST: BELAGAVI-590001. 4. SHRI MAHANTESH S/O. BASALINGAYYA HIREMATH, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: RUDRAPUR,TQ: SAUNDATTI, DIST: BELAGAVI-590001. 5. SHRI MANJUNATH S/O. BASALINGAYYA HIREMATH, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 6. SHRI SHIVAYOGI S/O. BASALINGAYYA HIREMATH, AGE: 32 YEARS, OCC: AGRICULTURE, R/O: RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. 7. SMT. VEERAWWA W/O. VIJAY HIREMATH @ UJJAYYANAVAR, AGE: 34 YEARS, OCC: HOUSEHOLD WORK, R/O: UGARKHOD, TQ: BAILHONGAL, DIST: BELAGAVI-590001. …APPELLANTS (BY SRI P.G. NAIK, ADVOCATE FOR SRI G.B. NAIK, ADVOCATE.) AND: 1. SHRI VEERABHADRAYYA S/O. MADIVALAYYA HIREMATH, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. 2. SMT. SHIVALEELA W/O. RAJASHEKHARAYYA HIREMATH, AGE: 62 YEARS, OCC: HOUSEHOLD WORK, R/O: RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. 3. SMT. NIRMALA @ ANUSUYA W/O. JAGADISH AMARAGOLMATH, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O. NEGINHAL VILLAGE, TQ: BAILHONGAL, DIST: BELAGAVI-590001. 4. SHRI BASAVARAJ S/O. RAJASHEKHARAYYA HIREMATH, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: RUDRAPUR TQ: SAUNDATTI, DIST: BELAGAVI-590001. 5. SHRI MRUTYUNJAYA S/O. RAJASHEKHARAYYA HIREMATH, AGE: 38 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 R/O: RUDRAPUR, TQ: SAUNDATTI, DIST: BELAGAVI-590001. …RESPONDENTS (BY SMT. SURABHI KULKARNI, ADVOCATE FOR SRI CHETAN MUNNOLI, ADVOCATE FOR R1; R2 TO R5 – NOTICE SERVED.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.07.2014, PASSED IN O.S.NO.19/2012 BY THE PRINCIPAL SENIOR CIVIL JUDGE, SAUNDATTI AND THE SUIT OF THE PLAINTIFF MAY KINDLY BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This regular first appeal is filed by defendants No.1 to 7 challenging the judgment and decree dated 28.07.2014, passed in O.S.No.19/2012, by the Principal Senior Civil Judge, Saundatti, so far as being aggrieved that all the properties are not included in the suit. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. - 4 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 3. The plaintiff has filed suit for partition and separate possession claiming 1/3rd share in the suit properties by contending that the suit schedule properties are ancestral properties. The trial Court decreed the suit by granting 1/3rd share in all the suit schedule properties to the plaintiff. 4. Learned counsel for the appellants/defendants No.1 to 7 submitted that the defendants are not aggrieved by the quantum of share allotted in the decree, but other three properties are not included in the suit, though a specific contention is taken in paragraph No.8 of the written statement, which are Sy.No.69, 71 and 85/1. Though defendants have not taken pleading in paragraph No.9 and 10 that these properties were not included in the suit, but the defendants/appellants have taken contention at paragraph No.8 in the written statement that these three properties are also ancestral properties. Therefore the trial Court while passing the decree has not ordered anything about these survey numbers. When it is the fact that these survey numbers are ancestral properties, then all the - 5 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 coparceners are also entitled for their respective shares. This is the grievance made out by the counsel for the appellants/defendants No.1 to 7 and also it is grievance that the property bearing Sy.No.153/1 is self acquired property of Basalingayya. 5. Learned counsel for respondents submitted that the property bearing Sy.No.153/1 was purchased in the year 1978 by joint nuclease fund in the name of Basalingayya, since he was manager and karta of the family. This fact is also admitted by DW.2 in his evidence. Therefore, submitted that Sy.No.153/1 is joint family property. Further submitted that though the lands bearing Sy.No.69, 71, 85/1 are not included in the suit, the respondent/plaintiff does not have any objection to give his 1/3rd share in these properties by moulding the relief granted in the suit, which may be given effect to in the final decree proceedings without setting aside the entire judgment and decree of the trial Court as it would cause hardship to the coparceners to get share in the properties. Therefore, regarding these three properties, plaintiff and defendants could work out shares in the FDP - 6 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 proceedings. Therefore, prays for necessary modification of the judgment and decree. 6. Having heard the submissions of the learned counsel for appellants/defendants No.1 to 7 and respondent/plaintiff and perusing the records, the following points arise for consideration in this appeal. i) Whether, under the facts and circumstances involved in the case, the plaintiff proves that the land bearing Sy.No.153/1 situated in Murgod village, measuring 06 acres 04 guntas is joint family property? ii) Whether, under the facts and circumstances involved in the case, appellants/defendants No.1 to 7 prove that the land bearing Sy.No.153/1 is self acquired property of Basalingayya who is husband of defendant No.1 and father of defendants No.3 to 7? iii) Whether, under the facts and circumstances involved in the case, so far as the properties bearing Sy.No.69, 71 and 85/1 situated at Rudrapur village, a decree could be passed in FDP proceedings without remanding the case to the trial Court? iv) Whether, under the facts and circumstances involved in the case, the judgment and decree passed by the trial Court requires interference by this Court? - 7 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 7. The appellants/defendants No.1 to 7 are aggrieved as per their submission on two folds: (i) The schedule property bearing Sy.No.153/1 is self acquired property of Basalingayya, hence partition effected by the decree is not correct and (ii) the lands bearing Sy.No.69, 71 and 85/1 are ancestral properties, but not included in the suit. Therefore, the suit for partial partition is not maintainable. 8. Regarding the suit schedule land bearing Sy.No.153/1 of Murgod village, it is the defence taken by the defendants No.1 to 7 that Basalingayya had purchased the said property out of his self earning as he was working as Postman in the Postal Department. Admittedly this property was purchased in the year 1978. The defendants No.1 to 7 have not pleaded that when Basalingayya had joined service of Postal Department, what was his salary and how he has invested the amount for purchasing this property. Absolutely there is no pleading in this regard. But the fact proved that Basalingayya had relinquished 02 acres 02 guntas of land in favour of defendant No.10 who is son of Rajashekharayya. If - 8 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 Basalingayya had purchased the land bearing Sy.No.153/1 out of his self earning, then there is no explanation as to why he has relinquished 02 acres 02 guntas of land to defendant No.10 who is son of Rajashekharayya. Therefore, this fact that relinquishment made by Basalingayya during his lifetime in favour of defendant No.10 who is son of another branch Rajashekharayya itself probabalize the fact that the land bearing Sy.No.153/1 was purchased out of joint nuclease fund. 9. Furthermore, at the same time defendants No.1 to 7 have not pleaded when Basalingayya had joined service in the Postal Department, what was his salary and what was his savings and how he has invested. Therefore, upon appreciating the evidence on record in this regard, it probabalizes in all its prudent approach that Sy.No.153/1 is joint family property, but purchased in the name of Basalingayya, since he was the eldest son in the family being manager and karta of the family. Therefore the trial Court is correct in decreeing the suit insofar as Sy.No.153/1 is - 9 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 concerned. Accordingly I answer point No.1 in the affirmative and point No.2 in the negative. 10. So far as lands bearing Sy.No.69, 71 and 85/1 are concerned, defendants No.1 to 7 have pleaded in the written statement that these are also ancestral properties and got partitioned in the year 1981 and 1984 in the family. Though defendants No.1 to 7 might not have specifically pleaded at paragraph No.9 of the written statement that these were not included in the suit, but the fact remains proved that these three survey numbers are also ancestral properties. But the plaintiff has not included these three properties in the suit. Therefore, the plaintiff and defendants No.1 to 7 are not aggrieved even in these all the properties share is given to them according to their respective entitlement. 11. Therefore, in this regard though non inclusion of all the properties in the suit for partition, the suit filed for partition is not maintainable, however on this ground if the judgment and decree is set aside and remanded to the trial Court, then it would be causing more hardship to both - 10 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 plaintiff and defendants No.1 to 7 that once again they have to undergo for trial. Therefore, instead of this, the Court is of the opinion to work out the remedy in the final decree proceedings. Therefore, when final decree proceedings is initiated in respect of making division in the suit schedule property, which are already mentioned, then liberty is given to both the plaintiff and defendants No.1 to 7 to file application to make division of these properties in Sy.Nos.69, 71, 85/1 situated in Rudrapur village and then FDP Court shall also make division of properties in all these three properties along with other property as per the decree. 12. Therefore, if this direction is issued as above stated, that would meet the ends of justice to the parties in the suit. Accordingly I answer point No.3 in the affirmative and point No.4 partly in the affirmative, modifying the judgment and decree passed by the trial Court. Hence the appeal is liable to be allowed in part. Accordingly I pass the following: - 11 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 ORDER i) The appeal is allowed in part. ii) The judgment and decree dated 28.07.2014, passed in O.S.No.19/2012, by the Principal Senior Civil Judge, Saundatti, is modified to the extent that so far as land bearing Sy.No.69, 71, 85/1 situated at Rudrapur village be subject matter in the final decree proceedings in the FDP Court. iii) The FDP Court is directed to make division of these three properties as per law according to the shares to be allotted to the coparceners by following the principles of law laid down in the case of Vineeta Sharma vs. Rakesh Sharma and others, reported in (2020) 9 SCC 1. iv) It is submitted that the land bearing Sy.No.17 has been sold by the plaintiff though it is ancestral property. Therefore, this sale is not binding on the shares of defendants No.1 to 7 to their respective shares. The trial Court is correct in decreeing that plaintiff is entitled to 1/3rd - 12 - NC: 2025:KHC-D:2095 RFA No. 100144 of 2014 share in Sy.No.17. This shall be worked out as set off in the final decree proceedings. v) The FDP Court is directed to work out 1/3rd share to the plaintiff in the land bearing Sy.No.17 as set off without effecting the share of defendants No.1 to 11. vi) No order as to costs. vii) Draw decree accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD. List No.: 1 Sl No.: 13