- 1 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.632 OF 2024 (DEC/PAR) BETWEEN: 1. MANJUNATH GOVINDA NAYAK AGED ABOUT 70 YEARS S/O. LATE GOVINDA NAYAK RESIDENT OF 167, 1ST ‘B’ CROSS, II PHASE, 4TH BLOCK, BSK III STAGE BENGALURU-560 035. …APPELLANT (BY SMT. PUSHPALATHA G., ADVOCATE FOR SRI. VIVEK HOLLA, HOLLA AND HOLLA, ADVOCATE) AND: 1. NAGESH GOVINDA NAYAK AGED ABOUT 71 YEARS S/O. LATE GOVINDA NAYAK TEACHER BEHIND MAHAKALI TEMPLE BANKESHWARA YADTHARE VILLAGE BYNDOOR TOWN AND POST KUNDAPURA TALUK. 2. SMT. SHARADA W/O DANAYYANA GOVINDA SHEREGARA AGE: MAJOR RESIDING AT PADUVARI VILLAGE AND POST KUNDAPURA TALUK. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 3. SMT. SUSHEELA AGED ABOUT 71 YEARS W/O. K.H. SHANKAR RETIRED EXCISE GUARD RESIDING AT PADUVARI VILLAGE AND POST KUNDAPURA TALUK. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.12.2023 PASSED IN R.A.NO.37/2018 ON THE FILE OF SENIOR CIVIL JUDGE, KUNDAPURA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 01.10.2018 PASSED IN O.S.NO.5/2011 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff/appellant before the Trial Court that suit annexure-I properties originally belongs to the joint family of the plaintiff and defendants on lease hold right. The father of the plaintiff and defendants by name late - 3 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 Govinda Anantha Nayak was the Manager of the family and on that capacity, he has applied for grant of occupancy right of the annexure-I properties and the same was granted in his name. The plaintiff and defendant No.1 only divided the suit properties and later recorded the said oral partition into written memorandum of partition on 24.05.1984. Since then, the plaintiff and 1st defendant are in possession and enjoyment of their properties. For effective and better title and right, the plaintiff realized that a regular registered partition deed is required to be entered in between him and the 1st defendant. The plaintiff requested the 1st defendant, but the 1st defendant protracting the actual execution of the partition deed. Hence, the suit is filed. In pursuance of the suit summons issued by the Court, the defendant No.1 has appeared and filed a written statement. In the written statement he contended that suit properties were inherited by Govinda Nayak and the said Govinda Nayak died intestate leaving behind his sons and daughters. Hence, his daughters are - 4 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 the necessary parties to the suit and it is absolutely false that there was any oral partition in between him and the plaintiff. Hence, the 1st defendant prayed to dismiss the suit. During the pendency of the suit, an application is filed under Order 1 Rule 10 of CPC to implead the defendant Nos.2 and 3 to the suit and they have been impleaded as parties to the proceedings and they also disputed the very claim made in the plaint and claims that it should be divided into 4 shares. 3. The Trial Court having considered the pleadings, framed the issues and allowed the parties to lead evidence. The plaintiff only relies upon the document Ex.P.5 and the same is disputed by defendant No.1 and he categorically contend that there was no such partition. Though, it is contended that earlier there was an oral partition and the same is reduced into writing as per Ex.P.5 and the same is also not a registered document. The plaintiff also not disputes the fact that the property was allotted in favour of his father and also not disputes - 5 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 the relationship between the plaintiff and defendant Nos.1 to 3 and they are the children of their father. Even the Trial Court also considering the material on record in paragraph No.14 extracted the evidence of P.W.1 and hence, comes to the conclusion that on the basis of averments of the pleadings, it is clear that suit annexure-I properties are ancestral and joint family properties of the parties and there was no any division and hence, not accepted the contention of the plaintiff and the document Ex.P.5 which has been relied upon by the plaintiff is also not a registered document and hence, granted the relief of 1/4th share. 4. Being aggrieved by the said judgment and decree, an appeal is filed before the Appellate Court and the First Appellate Court having re-assessed the material available on record and also the grounds which have been urged in the appeal memo, formulated the point whether the Trial Court has committed an error in decreeing the suit and whether it requires any interference. The First - 6 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 Appellate Court also taking into note of particularly the document Ex.P.5 and the same is an unregistered document and makes it clear that on the date of agreement at Ex.P.5, defendant No.1 and plaintiff were in joint possession and having undivided interest over the properties acquired by his father. Nothing to disclose in the recitals of the said Ex.P.5 that already oral partition was took place on any particular date and in terms of the said oral partition, the parties in the family have entered into memorandum of partition in terms of the oral partition. Therefore, in the absence of said recitals and essential ingredients in the pleadings, it cannot be said that Ex.P.5 is the memorandum of partition and also taken note of admissibility of Ex.P.5 and also taken note of that under Ex.P.5, the sisters i.e., defendant Nos.2 and 3 were left out and no share was given and the same is discussed in paragraph No.15 and hence, confirmed the judgment of the Trial Court. - 7 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 5. Being aggrieved by the concurrent finding, the present second appeal is filed. The main contention of the counsel appearing for the appellant in this case is that both the Courts have misread the evidence and same led miscarriage of justice. The counsel would vehemently contend that lower Courts misconstrued and misinterpreted the memorandum of partition at Ex.P.5 and findings of lower Court are appreciated by non consideration of relevant material particularly document of Ex.P.5 and there was a oral partition between the appellant/plaintiff and 1st respondent and the same was reduced into writing and the very approach of both the Courts is erroneous. 6. Having heard the appellant’s counsel and also on perusal of the pleadings and reasoning of the Trial Court and Appellate Court, no dispute with regard to the nature of the property is concerned and only counsel for appellant/plaintiff would vehemently contend that there was a partition between the plaintiff and 1st defendant, - 8 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 but, the defendant Nos.1 and 2 are not the parties to the said document and no share was given to them. When such being the case and the document is also an unregistered document and the same is inadmissible. Hence, Trial Court and First Appellate Court taken note of both the nature of the document as well as oral and documentary evidence available on record and Appellate Court also having re-assessed the material, particularly considering the nature of document of Ex.P.5 and also the claim made by the appellant/plaintiff is also based on the Ex.P.5 and when the said document is not admissible document and the same is not registered, I do not find any ground to admit and frame substantive question of law. The Trial Court and First Appellate Court taken note of both factual aspects and also the question of law considering the nature of document of Ex.P.5. Hence, not a case to invoke Section 100 of CPC. 7. In view of the discussions made above, I pass the following: - 9 - HC-KAR NC: 2025:KHC:48874 RSA No. 632 of 2024 ORDER i) Second appeal is dismissed. ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 37