- 1 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100118 OF 2023 (DEC/INJ-) BETWEEN: KRISHNA S/O. HEMALAPPA LAMANI @ CHAVAN, AGE: 81 YEARS, OCC: BUSINESS, R/O. BAGALKOT, TAL AND DIST: BAGALKOT-587101. …APPELLANT (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. GOPAL S/O. HEMALAPPA LAMANI @ CHAVAN, AGE: 63 YEARS, OCC: AGRICULTURE, R/O. GULABAL TANDA, TAL: BAGALKOT-587101. 2. CHINNAWWA W/O. ISHWARAPPA KALE, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O. NEAR DURGA VIHAR, BAGALKOT-587101. 3. ANAND ISHWARAPPA KALE, AGE: 48 YEARS, OCC: AGRICULTURE, R/O. NEAR DURGA VIHAR, BAGALKOT-587101. 4. SANJAYKUMAR S/O. ISHWARAPPA KALE, AGE: 43 YEARS, OCC: BUSINESS, R/O. NEAR DURGA VIHAR, BAGALKOT-587101. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.07 16:18:44 +0530 - 2 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 5. PADMA W/O. BABU RATHOD @ LAMANI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. MUCHKHANDI TANDA NO.1, TAL AND DIST: BAGALKOT-587101. …RESPONDENTS (BY SRI. SRINIVAS B. NAIK, ADVOCATE FOR R2-R4; SRI. MRUTYUNJAYA S. HALLIKERI, ADVOCATE FOR R5; R1-SERVED & UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.87/2022 (OLD R.A.NO.178/2010) DATED 19.01.2023 PASSED BY THE PRINCIPAL JUDGE, FAMILY COURT, BAGALKOTE, AND THE JUDGMENT AND DECREE IN O.S. NO.91/2007 BY THE PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOTE, DATED 06.10.2010, AS NULL AND VOID AND TO DECREE THE SUIT AS PRAYED FOR AND ETC. 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 appeal is filed by the plaintiff, challenging the judgment and decree dated 19.01.2023 in R.A.No.87/2022 (Old R.A.No.178/2010) on the file of the Principal Judge, Family Court, Bagalkot (for short “First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 06.10.2010 in O.S.No.91/2007 on the file the Principal Senior Civil Judge, Bagalkot (for short “the Trial Court”) dismissing the suit of the plaintiff. - 3 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 2. For the sake of convenience, parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that plaintiff and defendant No.1 are the brothers. It is stated that the plaintiff is in exclusive possession of the property bearing T.P.No.121/A/8 of Ward No.10 as per oral partition held between the plaintiff and the defendant No.1. The defendant No.1 has sold portion of the suit schedule property in favour of the defendant No.2 to 4 as per registered sale deed dated 20.06.2007 and it is contended by the plaintiff that the said sale deed is not binding on the plaintiff. It is also stated in the plaint that the defendant No.1 was a student and the plaintiff was a licensed PWD contractor and out of his income, plaintiff has purchased the suit schedule property in the name of the defendant No.1 as per the registered sale deed dated 11.11.1980 for valuable consideration of ₹8,000/- and therefore, the plaintiff has sought for declaration with consequential relief of injunction. 3.1. The defendants entered appearance after service of notice. Defendant No.1 contended that the averments made in the plaint is false and the defendant No.1 is the absolute owner - 4 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 in possession of the suit schedule property as per the registered sale deed dated 11.11.1980 and thereafter he sold portion of the same in favour of defendants 2 to 4 as per the registered sale deed dated 20.06.2007. Hence, the defendant No.1 sought for dismissal of the suit. 3.2. Defendant No.2 to 4 have filed separate written statement stating that they have purchased the suit property from defendant No.1 for valuable consideration and therefore, sought for dismissal of the suit. 3.3. The Trial Court, based on pleadings on record, formulated issues for its consideration. In order to establish his case, plaintiff has examined 4 witnesses as PW1 to PW4 and produced 30 documents as Ex.P1 to Ex.P30. Defendants have examined two witnesses as DW1 and DW2 and produced six documents, which were marked as Ex.D1 to Ex.D6. 4. The Trial Court, after considering the material on record, by its judgment and decree 06.10.2010, dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.87/2022 and the same was resisted by the defendants. The First Appellate Court, after considering the - 5 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 material on record, by its judgment and decree dated 19.01.2023 dismissed the appeal, consequently, confirmed the judgment and decree in O.S.No.91/2007. Feeling aggrieved by the same the plaintiff has preferred this appeal. 5. I have heard, Sri. Dinesh M Kulkarni, learned counsel appearing for the appellant and Sri. Srinivas Naik, learned counsel appearing for respondents 2 to 4, and Sri. Mrutyunjaya S Hallikeri, learned counsel appearing for respondent No.5. 6. It is contended by the learned counsel appearing for the appellant that both the Courts below have failed to consider Ex.P10 registered sale deed in which it is stated that the defendant No.1 is a student and therefore, the defendant No.1 had no means to purchase the suit property as per the registered sale deed at Ex.P10 and accordingly, sought for interference of this Court. It is also argued that the DW1 has admitted about the oral partition during 1985 and therefore, sought for interference of this Court. - 6 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 7. Per contra, learned counsel appearing for respondent No.5 sought to justify the impugned judgment and decree. 8. In the light of the submissions made by learned counsel appearing for the parties, it is not in dispute that the plaintiff and defendant No.1 are the brothers. The suit schedule property has been purchased by the Defendant No.1 as per Ex.P10 on 11.11.1980 for valuable consideration. It is the case of the plaintiff that, the plaintiff is a PWD contractor and suit property was purchased in the name of the plaintiff and the joint family was in existence during 1980 as the partition took place during 1985 and further the entire sale consideration was paid by the plaintiff. However, the entire pleadings and the evidence on record would indicate that the defendant No.1 has paid the sale consideration amount at the time of purchasing the suit schedule property and therefore, the contention of the plaintiff that the defendant No.1 had agreed to relinquish his right in favour of the plaintiff by taking ₹40,000/- The said aspect of the matter was not proved by the plaintiff as the onus is on the plaintiff to prove that the sale consideration, as per Ex.P10, has been paid by him. Since the plaintiff has failed to - 7 - NC: 2025:KHC-D:4213 RSA No. 100118 of 2023 establish that the sale consideration was paid by the plaintiff and that apart if the plaintiff has paid the sale consideration amount, the same ought have been reflected in the Income Tax Returns filed by him during said assessment year. In the absence of the same, the finding recorded by both the Courts below is just and proper and no interference is called for in this appeal. Both the Courts below have appreciated the documents on record in the right perspective and dismissed the suit on merits and therefore, I do not find any merit in the appeal. Accordingly, the appeal is dismissed at the stage of admission itself as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. In the result, the appeal fails. 9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed off accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN CT-MCK List No.: 1 Sl No.: 33