- 1 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.100098 OF 2020 (PAR/POS) BETWEEN: 1. SRI. FAKIRAPPA S/O. GANGAPPA MALLANNAVAR, AGED 48 YEARS, OCC: COOLIE, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI- 591 2. SMT. MAHADEVI W/O. SATTEPPA DASANATTI, AGED 61 YEARS, OCC: COOLIE, R/O: KUTARANATTI, TQ: SAUNDATTI, DIST: BELAGAVI- 591 3. SMT. KAMALAVVA W/O. FAKIRAPPA OKALI, AGED 51 YEARS, OCC: HOUSEHOLD WORK, R/O: HOOLI, TQ: SAUNDATTI, DIST: BELAGAVI-591 4. SMT. BASAVVA W/O. MAHADEV KYAMANAKOL, AGED 50 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI-591 5. SMT. SHIVAKKA W/O. MAHADEV HAMMANNAVAR, AGED 61 YEARS, OCC: HOUSEHOLD WORK, R/O: MALLUR, TQ: SAUNDATTI, DIST: BELAGAVI – 591 Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 SMT. BHIMAVVA W/O FAKIRAPPA HABASI SINCE DECEASED BY HER LR’S., 6. SRI. SIDDAPPA S/O. FAKIRAPPA HABASI, AGED 41 YEARS, OCC: AGRICULTURE, R/O: HOOLI GAOUNTAN, TQ: SAUNDATTI, DIST: BELAGAVI – 591 7. SMT. MAHADEVI W/O. DYAMANNA ITI AGED 46 YEARS, OCC: HOUSEHOLD WORK, R/O: TALLUR, TQ: SAUNDATTI, DIST: BELAGAVI – 591 8. SMT. KAREVVA W/O. BASAPPA GAJI AGED 38 YEARS, OCC: HOUSEHOLD WORK, R/O: HARLAPUR, TQ: SAUNDATTI, DIST: BELAGAVI – 591 9. SMT. YAMANAVVA W/O. HANAMANT GULJAR AGED 50 YEARS, OCC: HOUSEHOLD WORK, R/O: GORAVANAKOLLA, TQ: SAUNDATTI, DIST: BELAGAVI- 591 10. SMT. JAYASHREE W/O. FAKIRAPPA MALLANNAVAR, AGED 44 YEARS, OCC: COOLIE, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI- 591 …APPELLANTS (BY SRI. G.I. GACHCHINAMATH, ADV) AND: 1. SMT. HANAMAVVA W/O. DYMAPPA MALLANNAVAR, AGED 76 YEARS, OCC: COOLIE, R/O: MADAMGERI, NOW RESIDING AT GOUNTHAN HOOLI, TQ: SAUNDATTI, DIST: BELAGAVI – 591 - 3 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 2. SRI. DEVENDRA S/O. DYAMAPPA MALLANNAVAR, AGED 46 YEARS, OCC: AGRICULTURE, R/O: HOOLI GAOUNTAN, TQ: SAUNDATTI, DIST: BELAGAVI – 591 HANAMANT S/O SHIVARAYAPPA MALLANAVAR SINCE DECEASED BY HIS LR’S., 3. SMT. DYAMAVVA W/O. HANAMANT MALLANNAVAR, AGED 61 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI- 5911 4. SMT. KASTURI W/O. MAHADEV KARALAKATTI AGED 41 YEARS, OCC: HOUSEHOLD WORK, R/O: INCHAL, TQ: SAUNDATTI, DIST: BELAGAVI – 5911 5. SMT. NAGAVVA W/O. SURESH PARAMESHANAVAR, AGED 40 YEARS, OCC: HOUSEHOLD WORK, R/O: INCHAL, TQ: SAUNDATTI, DIST: BELAGAVI- 5911 6. SRI. SHIVAPPA W/O. HANAMANT MALLANNAVAR, AGED 31 YEARS, OCC: AGRICULTURE, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI – 5911 7. SMT. TIPPAVVA W/O. BASAVARAJ YARAGATTI, AGED 36 YEARS, OCC: HOUSEHOLD WORK, R/O: HIRE-NANDI, TQ: GOKAK, DIST: BELAGAVI- 59111 - 4 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 8. SMT. MALLAVVA D/O. HANAMANT MALLANNAVAR, AGED 21 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI – 5911 9. SMT. KALLAVVA W/O. SHAMU VANNUR AGED 61 YEARS, OCC: HOUSEHOLD WORK, R/O: MADAMGERI, TQ: SAUNDATTI, DIST: BELAGAVI – 5911 …RESPONDENTS (BY SRI. K.S. PATIL, ADV FOR R1 TO R9) RFA FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:28.11.2019 PASSED IN O.S.NO.79/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, DISMISSING 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 UMESH M ADIGA - 5 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed by the appellants, challenging the judgment and decree dated 28.11.2019 passed in O.S.No.79/2014 by the learned Senior Civil Judge, Saundatti. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants are the plaintiffs, and the defendants are the respondents. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that one Fakirappa Mallannavar was the original propositus, and he had three children, named Shivarayappa, Gangappa and Mahadeva. The plaintiffs are the children of Gangappa and Mahadev. The defendants are the descendants of the deceased Shivarayappa. The - 6 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 suit schedule properties are the agricultural lands and the house properties. It is contended that, there is no partition effected between the family, and the suit schedule properties are the ancestral joint family properties. After the death of Shivarayappa, the husband and father of defendant No.1 and defendant No.2, Dyamappa colluding with defendant No.3, illegally mutated their names over the Khata of suit landed properties, and tried to alienate the suit properties, without the knowledge of the plaintiffs. Hence the plaintiffs demanded partition and separate possession. The defendants refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.2 filed a written statement admitting that the son of Shivarayappa, i.e., husband of defendant No.1 and father of defendant No.2, expired, leaving behind defendant Nos.1 and 2. It is also admitted that the second son of Shivarayappa and his wife, are no - 7 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 more. Defendant Nos.3 and 4 are the children of deceased Shivarayappa. The rest of the contents of the plaint are denied. It is contended that the block No.556, measuring 16 acres of 3 guntas, including 2 acres 16 guntas karab situated at Madangiri village, was the exclusive property of the Shivarayappa. 5. It is submitted that the property bearing block No.556 measuring 16 acres 3 guntas including karab 2 acres 16 guntas situated at Madangiri village was bearing Sy.No.237 and the said survey was clubbed in block No.556 and the said property was the exclusive property of Shivarayappa. The deceased Gangappa and Mahadev are no longer concerned about the said property. The property bearing block No.227 was originally bearing Sy.No.71A/1/5 measuring 6 acres situated at Madangiri village was in exclusive possession and enjoyment of Shivarayappa. The said property is nowhere concerned to Gangappa and Mahadev. Survey No.71A/1/5 was granted in favour of Shivarayappa as per the grant order dated - 8 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 14.12.1956. The said property is the exclusive property of the Shivarayappa, and Shivarayappa deposited the premium in favour of the Government. As of the date of the grant, Shivarayappa has resided separately and is enjoying the properties exclusively. Shivarayappa died, leaving behind Dyamappa and Hanumanthappa as his legal heirs, and they continued to be in possession of the suit schedule properties. The plaintiffs are nowhere concerned with the suit schedule properties. Hence, the suit filed by the plaintiffs is not maintainable and prays to dismiss the suit. 6. During the pendency of the suit, defendant No.3 passed away leaving behind his legal representatives i.e., defendant Nos.3(a), (d) and (f). They adopted the written statement filed defendant No.2 and defendant No.4 has been placed as exparte, as she failed to appear before the Court. 7. The trial Court based on the pleadings of the parties, framed the following: - 9 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 (1) Whether the plaintiffs prove that the suit schedule properties are ancestral and joint family properties of them and defendants and they are in joint possession of those properties ? (2) Whether the plaintiffs prove that the defendant No.3 and deceased Dyamappa have colluded each other and concocted the revenue documents ? (3) Whether the plaintiffs are entitled to the share in the suit schedule properties as sought ? (4) What order or decree ? 8. To substantiate their case, plaintiff No.1 was examined as PW.1 and marked 10 documents as Exs.P1 to P10. Defendant No.3(d) got examined himself as DW.1 and marked 10 documents as Exs.D1 to D10. After recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, the trial Court, answered issue Nos.1 to 3 in the negative, issue No.4 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 28.11.2019. The plaintiffs, - 10 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 aggrieved by the judgment and decree passed in O.S.No.79/2014, filed this regular first appeal. 9. Heard the learned counsel for the plaintiffs, and learned counsel for the defendants. 10. Learned counsel for the plaintiffs submits that the trial Court has not assigned any valid reasons while passing the impugned judgment and has not framed the proper issues. He submits that the suit schedule properties are in joint possession of the plaintiffs and defendants. He submits that Shivarayappa was the elder person in the family, and being an elder person in the family, the suit schedule properties were standing in his name, and he was not the absolute owner of the suit schedule property. He submits that block No.227 was allotted to the deceased Shivarayappa vide order dated 14.12.1956, and the defendants placed no such order before the trial Court. In the absence of cogent evidence and material on record, the trial Court has dismissed the suit. Hence, the judgment and decree passed by the trial - 11 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 Court is arbitrary and erroneous. Hence, prays to allow the appeal. 11. Per contra, learned counsel for the defendants supports the impugned judgment and submits that the trial Court, considering the material on record, was justified in recording its finding that the plaintiffs failed to prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants and they are in joint possession of the suit properties. Hence, on these grounds, prays to dismiss the appeal. 12. Perused the records and considered the submissions of the learned counsel for the parties. 13. The points that arise for our consideration are as follows : 1) Whether the plaintiffs prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and the defendants? - 12 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 2) Whether the plaintiffs prove that the impugned judgment, passed by the trial Court, is arbitrary and erroneous? 3) What order or decree? 14. Re-Point No.1: To substantiate their case, plaintiff No.1 was examined as PW.1. He reiterated the plaint averments in the examination-in-chief. To prove that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants, the plaintiffs produced the documents. Ex.P1 is the RTC extract of the land bearing Block No.556 stands in the name of Hanumanth i.e., father of DW.1. Ex.P2 is the RTC extract of land bearing Block No.227 stands in the name of father of DW1. Exs.P3 to 5 are the mutation register entries, Exs.P6 and 7 are the mutation entries, Exs.P8 to 10 are the house properties extracts. 15. During the course of cross-examination, PW.1 admitted that item Nos.1 and 2 of the suit schedule properties were granted to Shivarayappa and admitted that the plaintiffs are not in possession of the suit lands at - 13 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 any point in time and admitted that the record of rights stands in the name of Shivarayappa. Shivarayappa died, and after his demise, his legal representatives submitted a varadi and admitted that the family did not possess any other properties in the character of ancestral or joint family properties. 16. In rebuttal, defendant No.3(d) was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and to prove that the suit schedule properties are not ancestral and joint family properties of the plaintiffs and defendants, the defendants have produced the documents. Exs.D1 to 4 are the RTC extracts of the land bearing Block No.227, and the said RTC of the year 1964-65 stands in the name of Shivarayappa. Exs.D5 and D6 are the record of rights, Exs.D7 to 10 are the mutation entries. 17. During the course of cross-examination, it is elicited that the suit lands were standing in the name of propositus and his wife. The perusal of the entire records - 14 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 produced by both parties, discloses that the suit lands were granted in favour of Shivarayppa in his capacity and not for the benefit of the entire family. The plaintiffs have not produced any records to establish that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. 18. In a suit for partition and separate possession, the initial burden is always on the plaintiffs to prove the nature of the suit schedule properties. Admittedly, all the records are standing in the name of Shivarayappa and not in the name of Fakirappa. The plaintiffs failed to establish that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendants. It is suggested that the suit schedule properties are not ancestral and joint family properties of the plaintiffs and defendants. Though the said suggestion was denied, PW.1 has admitted during the cross-examination that the plaintiffs are not in possession of the suit schedule properties at any point in time. Said admission falsifies the - 15 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 contents of the plaint that the plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties. In view of the above discussion, we answer point No.1 in the negative. 19. Re-Point No.2: After considering the documents on record, the trial Court has rightly held that the revenue records standing in the name of Shivarayappa, and the said lands were granted in favour of Shivarayappa, and he was the absolute owner of the suit schedule properties, and after the demise of Shivarayappa, his legal heirs i.e., defendant Nos.1 to 4 have inherited the properties from Shivarayappa. As observed above, in point No.1, the plaintiffs have failed to establish that the suit schedule properties are the ancestral joint family properties and that the plaintiffs and defendants are not in joint possession of the suit schedule properties; the trial Court has rightly answered issue Nos.1 to 3 in the negative and rightly dismissed the suit. - 16 - NC: 2025:KHC-D:2063-DB RFA No. 100098 of 2020 Hence, we do not find any error in the impugned judgment. We answer point No.2 in the negative. 20. Re-Point No.3: Accordingly, we proceed to pass the following: ORDER The appeal is dismissed. The judgment and decree passed by the trial Court, is hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, pending IA, if any, does not survive for consideration and is accordingly disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE SKS CT: BSB List No.: 1 Sl No.: 8