- 1 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5528 OF 2011 C/W REGULAR SECOND APPEAL NO.5527 OF 2011 IN RSA.NO.5528/2011: BETWEEN: DIGAMBARAPPA S/O. MAHADEVAPPA, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: DANAKANADODDI, TQ AND DIST: KOPPAL. …APPELLANT (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: RATNABAI D/O. MAHADEVAPPA AKKASALI, SINCE DECEASED BY HER LRS. 1. SURESH S/O. MAHABALESHWAR KURDEKAR, SINCE DECEASED BY LR. 1A. PADMAVATI W/O. SURESH AKKASALIGA @ KURDEKAR, AGE: MAJOR, OCC: HOUSEHOLD, R/O: VARAKARGALLI, KOPPAL, TQ AND DIST: KOPPAL – 583 231. 2. SMT. MANGALA D/O. MAHABALESHWAR KURDEKAR, AFTER MARRIAGE KNOWN AS SMT. MANGALA W/O. RAMESH REVANKAR, AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: HULKOTI, JANATA PLOT, TQ AND DIST: GADAG, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 3. SMT. RUKMABAI D/O. MAHADEVAPPA AKKASALI , AFTER MARRIAGE KNOWN AS SMT. RUKMABAI W/O. RAMANNA KURDEKAR, AGE: 56 YEARS, OCC: HOSUEHOLD, R/O: DANAGALADODDI, TQ AND DIST: KOPPAL. VISHWANATH S/O. MAHADEVAPPA AKKASALI, @ VARENAKAR DECEASED BY HIS LRS., 4. SMT. SEETHABAI W/O. VISWANATH AKKASALI, AGE: 62 YEARS, OCC: HOSUEHOLD, R/O: DANAGALADODDI, TQ AND DIST: KOPPAL. 5. SRI. BABURAO S/O. VISWANATH AKKASALI , AGE: 42 YEARS, OCC: BUSINESS, BELGALI CHAWL, HUBBLLI. 6. GUSHILABAI D/O. MAHADEVAPPA AKKASALI, AFTER MARRIAGE KNOWN AS SMT. SUSHILABAI W/O. TAMMANNA REVENKAR, AGE: 46 YEARS, OCC: HOUSEHOLD, R/O: NEAR PRAKASH TALKIES, BELAGAVI. …RESPONDENTS (BY SRI. M.S.HALLIKERI, ADVOCATE FOR R5; SRI. H.L.NADAF, ADVOCATE FOR R4; R1(A), R2, R3 AND R6 ARE SERVED) THIS RSA IS FILED UNDER SECTION 100 CIVIL PROCEDURE CODE PRAYING TO CALL FOR RECORDS AND SET ASIDE BY THE IMPUGNED JUDGMENT AND DECREE DATED 23.04.2011, PASSED BY THE LEARNED FAST TRACK COURT – I KOPPAL IN R.A.NO.14/2010, AND CONFIRM THE JUDGMENT AND DECREE DATED 16.09.2009 PASSED BY LEARNED CIVIL JUDGE(SR.DN) KOPPAL IN O.S.33/2008, IN RESPECT OF PLAINTIFFS 1, 3 AND 4 IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 IN RSA.NO.5528/2011: BETWEEN: DIGAMBARAPPA S/O. MAHADEVAPPA, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: DANAKANADODDI, TQ AND DIST: KOPPAL – 583 231. …APPELLANT (BY SRI. CHETAN MUNNOLI, ADVOCATE) AND: VISWANATH S/O. MAAHDEVAPPA AKKASALI @ VARENAKAR , DEAD BY HIS LRS, 1. SMT. SEETABAI W/O. VISHWANATH AKKASALI, AGE: 64 YEARS, OCC: HOUSEHOLD. 2. SRI. BABURAO S/O. VISHWANATH AKKASALI, AGE: 44 YEARS, OCC: HOUSEHOLD. 3. SMT. RUKUMABAI W/O. KURADEKAR, AGE: 55 YEARS, OCC: HOUSEHOLD, ALL ARE R/O: DANAKANADODI, TQ AND DIST: KOPPAL – 583 231. …RESPONDENTS (BY SRI. M.S.HAKKIKERI, ADVOCATE FOR R3; V/O DATED: 11.02.2019 R1 & R3 ARE REPRESENTED IN RSA 5528/2011) THIS RSA IS FILED UNDER SECTION 100 CIVIL PROCEDURE CODE PRAYING TO CALL FOR RECORDS AND SET ASIDE BY THE IMPUGNED JUDGMENT AND DECREE DATED 23.04.2011, PASSED BY THE LEARNED FAST TRACK COURT – I KOPPAL IN R.A.NO.98/2009, AND JUDGMENT AND DECREE DATED 16.09.2009 PASSED BY LEARNED CIVIL JUDGE(SR.DN) KOPPAL IN O.S.33/2008, AND DISMISS THE SUIT OF THE PLAINTIFFS 2 BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. These two appeals are by the defendant in OS No.33/2008 being aggrieved by the judgement and decree dated 16.09.2009 passed by the Civil Judge (Sr.Dn.), Koppal (for short, ‘Trial Court’), partly decreeing the suit of the plaintiffs declaring that the plaintiff No.2 being entitled for partition and separate possession of his ½ share in the suit schedule property and dismissing the claim of plaintiff No.1(a) and (b), 3 and 4, which is set aside and modified by the common judgement and order dated 23.04.2011 passed in RA Nos.98/2009 and 14/2010 by the Fast Track Court-I at Koppal (for short, ‘First Appellate Court’). The First Appellate Court decreed the suit of the plaintiffs allotting 1/5th equal share to each in the suit schedule properties by metes and bounds. 2. The above suit is filed by plaintiffs/respondents herein claiming partition and separate possession of 1/5th share each and for physical possession of the said shares in the suit property by metes and bounds. - 5 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 3. The case of the plaintiffs is that, the suit land bearing Sy.No.6 measuring 13 acres 39 guntas situated at Danagaladoddi village, Koppal district and house property bearing No.45 belonged to one Smt.Seethamma who was the mother of the plaintiffs and defendant. That after her demise plaintiffs and defendant jointly succeeded to the said property and thus became the joint owners thereof. That the landed property still standing in the name of late Smt. Seethamma. The defendant managed to get his name entered in the revenue records in respect of the house property. That the plaintiffs and the defendant have got 1/5th share each in the suit properties. Defendant taking undue advantage of the absence of the plaintiffs making hectic efforts to alienate the suit schedule properties. Hence, the suit for partition. 4. Defendant filed his written statement denying the averments and contended that one Mahadevappa the father of the plaintiffs died about 45 years ago. That the mother of the parties Smt. Seethamma passed away during the year 1989, plaintiff No.1 - Rathnabai was - 6 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 married about 50 years ago, plaintiff No.3 – Rukmabai married about 45 years ago, plaintiff No.4 – Sushilabai married about 27 years ago and plaintiff No.2- Vishwanath left the house of the defendant about 35 years ago and his whereabouts were not known till the year 1990. That the suit land originally belonged to one Raghavendrachar. Occupancy rights were granted in the name of mother of the parties Smt. Seethamma by the Land Tribunal, Koppal on 31.05.1977. The said Smt. Seethamma and defendant continued as joint owners and in joint possession of the suit land. In the year 1990, for the first time defendant came to Danagaladoddi village and that on 15.03.1990 there was a family arrangement between the plaintiff No.2 and the defendant in the presence of the elders of the village, in which defendant was allotted the suit land and the house and upon the valuation of the suit land made by the elders at Rs.10,000/- and the suit house at Rs.3,000/- , plaintiff No.2 was paid Rs.6,500/- being ½ of the value of the suit properties by the defendant as his share. - 7 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 5. That the plaintiff No.2 left the village and he was unheard till the filing of the suit. Plaintiff Nos.1, 3 and 4 are not having any share, right, title and interest since the partition of the family has taken place on 15.03.1990. That the defendant has become absolute owner in exclusive possession and enjoyment of the suit properties. Ever since the date of the partition as above he has made improvements to the suit land spending huge amount as the plaintiffs taking advantage of continuation of name of Smt. Seethamma in the revenue records have filed present suit. Hence, sought for dismissal of the same. 6. Based on the pleadings, the Trial Court framed the following issues for its consideration: 1) Whether the plaintiff proves that the suit schedule properties are the joint family properties and they are in joint possession of plaintiffs and defendant? 2) Whether the plaintiffs prove that they are having 1/5th share each in the suit schedule properties? 3) Whether the defendant proves that there is a oral partition in between himself and plaintiff No.2 as on 15/03/1990 in the presence of elderly persons and as in the partition plaintiff - 8 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 No.2 has taken an amount of Rs.6,500/- and given up his share, hence the defendant was the absolute owner of the suit schedule properties? 4) Whether defendant proves that whereabouts of plaintiff No.2 is not known since 1990? 5) Whether the plaintiffs prove that they are entitled for partition and separate possession over the suit properties? 6) What order or decree? 7. One Baburao has been examined as PW1. Three witnesses have been examined on behalf of defendant as DW1 to DW3. Eight documents have been marked on behalf the plaintiffs as Ex.P1 to P8 and no document is marked on behalf of the defendant. On appreciation of the evidence, the Trial Court answered issue No.1 in the affirmative, issue Nos.2 and 5 partly in the affirmative and issue Nos.3 and 4 in the negative and consequently, partly decreed the suit declaring that the plaintiff No.2 being entitled for partition and separate possession of his ½ share in the suit schedule properties by metes and bounds and dismissed the claim of the plaintiff No.1(a) and (b), 3 and 4. Being aggrieved by the same, the defendant - 9 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 preferred regular appeal in RA No.98/2009, while plaintiffs filed regular appeal in RA No.14/2010. 8. Based on the grounds urged in the aforesaid regular appeals, were taken up by the First Appellate Court for common hearing and disposal. Based on the grounds urged, the First Appellate Court framed the following points for its consideration: 1. Whether plaintiffs have got 1/5th share to each in the suit properties and defendant has denied the share, refused to hand over the shares to them on improper grounds? 2. Whether defendant proves that plaintiffs 1,3 & 4 have lost their shares in the suit properties as they have married about 50 years, 45 yeas & 27 years back, respectively? 3. Whether defendant proves that in the oral partition of the year 1990 plaintiff No.2 has taken cash of Rs. 6,500/- from the defendant and thereby relinquished his share in favour of the defendant, under oral partition? 4. Whether defendant had made grounds to dismiss the whole suit? 5. Whether plaintiffs 1, 3 & 4 made out grounds to interfere with judgement and decree recorded by the trial court and there are grounds to grant the decree for partition and separate possession of 1/5th share to each of them? 6. To what Order? - 10 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 9. On re-appreciation of the material on record, the First Appellate Court answered the point Nos.1 and 5 in the affirmative and point Nos.2, 3 and 4 in the negative and consequently, dismissed the appeal in RA No.98/2009 filed by the defendant and allowed the appeal in RA No.14/2010 filed by the plaintiffs. The judgment and decree of dismissal of the suit filed by the plaintiff Nos.1, 3 and 4 is set aside. The judgment and decree of the Trial Curt is modified holding that the plaintiffs Nos.1 to 4 are entitled for partition and separate possession of 1/5th share each in the suit schedule properties by metes and bounds. Being aggrieved by the above common judgement and decree of the First Appellate Court, the defendant is before this Court in these two regular second appeals. 10. Sri. Chetan Munnoli, learned counsel appearing for the defendant reiterating the grounds urged in the memorandum of appeal submits that the Trial Court grossly erred in granting ½ share to the plaintiff No.2 without appreciating the fact that plaintiff No.2 had left the house in the year 1990. That there was a family - 11 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 arrangement in the presence of the elders of the village in terms of which ½ of the value of the properties has been given to the plaintiff No.2 towards his share and the said fact is evident from the depositions of DW1 to DW3. As such, the Trial Court was not justified in granting ½ share to the plaintiff No.2. As regards decreeing the suit the plaintiff Nos.1, 3 and 4, he submits that father of the parties Mahadevappa was cultivating the land along with his wife Smt. Seethamma as a tenant. Upon his demise, Smt. Seethamma and defendant inherited the tenancy filed application for grant of occupancy rights. The occupancy rights were granted in favour of Seethamma as such, the suit properties are the properties of family and not that of the properties of Smt. Seethamma. That the plaintiff Nos.1, 3 and 4 have married about 50 years, 45 years and 27 years ago respectively much prior to coming into the force of Hindu Succession Act, 1956 as such, the Trial Court was justified in holding that the plaintiff Nos.1, 3 and 4 who are the daughters were not entitled for the shares in the suit schedule properties and they were not - 12 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 entitled to seek partition. Hence, he submits that substantial question of law would arise for consideration. 11. Heard and perused the records. 12. The fact that Mahadevappa and Seethamma being the father and mother respectively of plaintiff Nos.1 to 4 and defendant is not in dispute. It is also not in dispute that Mahadevappa was cultivating item No.1 of the suit schedule properties as a tenant. It is also not in dispute that the said Mahadevappa was the owner of item No.2 of the suit schedule properties. 13. Records reveal that upon the demise of Mahadevappa, Smt.Seethamma his wife had made application for grant of occupancy rights which are conferred in her favour by the order of Land Tribunal dated 31.05.1977. Though the defendant has attempted to set up the theory of prior partition purported to have taken place in the presence of the elders of the family in which the valuation of the suit land and the house property was determined at Rs.10,000- and Rs.3,000/- respectively and that in pursuant of thereof he purportedly - 13 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 paid Rs.6,500/- to the plaintiff No.2 towards his share thereby the defendant became absolute owner of the entire extent of the land, except the oral testimony no evidence of any nature whatsoever is produced. In the absence of such evidence the Trial Court and the First Appellate Court have rightly declined to accept the theory of prior partition propounded by the defendant. 14. The second contention urged by the defendant is that upon the demise of Mahadevappa, the occupancy rights have been granted in the name of Smt. Seethamma and that only Seethamma and defendant were cultivating the suit land. As such, the plaintiffs did not have any share, right, title and interest over the properties. Though the Trial Court has held that the suit land having been granted in the name of Smt. Seethamma and the revenue records at Ex.P1 stood in her name, the item No.2 of the suit schedule properties being the family property, referring to the Hindu Succession Act, 1956, Karnataka Amendment 23 of 1994 it declined to grant any share in favour of the plaintiff Nos.1, 3 and 4 on the premise that - 14 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 they not having any share in the Joint Hindu Family Co- parcenary property. 15. However, the First Appellate Court considering the grant made in the name of Smt. Seethamma has held that she was the lawful owner in possession of the property, in view of section 14(1) of the Hindu Succession Act, 1956, and nobody else had any interest in the suit property till her demise. That upon her demise the suit properties are inherited and vested with all her Class I heirs in terms of Section 15 of the Hindu Succession Act, 1956. Plaintiffs and defendant being as Class I heirs are entitled for 1/5th equal share. Though the defendant had contended that the plaintiff Nos.1, 3 and 4 were married about 50 years, 45 years and 27 years ago and they had lost their right, the First Appellate Court opined that right and interest of the plaintiffs accrued only after the death of Seethamma who passed away in the year 1989 and as such, the provisions of Hindu Succession Act, 1956, becomes applicable they being entitled for equal shares notwithstanding their marriage long prior to the date of - 15 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 her death. Accordingly, awarded 1/5th share each to the plaintiffs. 16. Though the learned counsel for the appellant at the time of argument tried to raise the additional ground that the item No.1 of the suit schedule properties is a tenanted land in which daughters are not entitle for any share, he however fairly concedes that the said aspect of the matter is now well settled recognizing the rights of the daughters even in such properties in the light of the judgement passed by the Division Bench of this Court in the case of Nimbavva and Others Vs. Channaveerayya and Others reported in ILR 2013 KAR 6202 and the judgment passed by the Hon’ble Apex Court in the case of N. Padmamma and Others Vs. S. Ramakrishna Reddy and Others reported in (2015) 1 SCC 417. Therefore, the said contention does not require any further probe since the landed properties were admittedly being cultivated by father of the parties Mahadevappa during his lifetime and upon his demise application was made by his wife Smt. Seethamma in whose favour grant was made. As such, - 16 - HC-KAR NC: 2025:KHC-D:8239 RSA No. 5528 of 2011 C/W RSA No. 5527 of 2011 grant shall be construed to have enured to the benefit of the members of joint family. 17. Nonetheless, even if as held by the First Appellate Court that the said properties are the absolute properties of Smt. Seethamma and plaintiffs and the defendant being the Class-I heirs are entitled for equal share in the suit properties. 18. Viewed in any angle, in the absence of defendant proving his contention of prior partition in the manner known to law, the plaintiffs and defendant being the children of Mahadevappa and Smt. Seethamma are entitled for 1/5th equal share in the suit properties which cannot be denied. No substantial question of law would arise for consideration. Accordingly, both the appeals are dismissed. Sd/- (M.G.S. KAMAL) JUDGE SMM/CT-ASC List No.: 1 Sl No.: 3