- 1 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100250 OF 2023 (PAR/POS) BETWEEN: MANJUNATH S/O. GURUSHIDAPPA KURLI AGE: 49 YEARS, OCC: PRIVATE SERVICE, R/O: EXCISE COLONY GOKUL ROAD, HUBBALLI 580030, TQ. HUBBALLI, DIST. DHARWAD. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. SHIVALILA W/O. PRAKASH KURLI AGE: 59 YEARS, OCC: HOUSEHOLD WORK R/O: NARAYAN SOFA, OLD HUBBALLI, HUBBALI 580020, TQ. HUBBALLI DIST. DHARWAD. 2. CHETAN S/O. PRAKASH KURLI AGE: 34 YEARS, OCC: PRIVATE JOB, R/O: NARAYAN SOFA, OLD HUBBALLI, HUBBALI 580020, TQ. HUBBALLI, DIST. DHARWAD. VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.19 11:28:21 +0530 - 2 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 3. VIDYA W/O. VINOD KONNUR AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: SRI NAGAR, DHARWAD 580003, TQ. HUBBALLI, DIST. DHARWAD. 4. ASHOK S/O. SIDDALINGAPPA RANEBENNUR AGE: 68 YEARS, OCC: BUSINESS, R/O: ANAND NAGAR, BEHIND BUS STAND, BADAMI 587201, TQ. BADAMI DIST. BAGALKOTE. 5. SANTOSH S/O. ASHOK RANEBENNUR AGE: 42 YEARS, OCC: STUDENT, R/O: ANAND NAGAR, BEHIND BUS STAND, BADAMI-587201, TQ. BADAMI DIST. BAGALKOTE. 6. SATISH S/O. ASHOK RANEBENNUR AGE: 39 YEARS, OCC: STUDENT, R/O: ANAND NAGAR, BEHIND BUS STAND, BADAMI-587201, TQ. BADAMI, DIST. BAGALAKOTE. 7. SHWETHA W/O. MAHESH ITAGI AGE: 36 YEARS, OCC: STUDENT, R/O: BEHIND BUS STAND, ANAND NAGAR, BADAMI, DIST: BAGALKOT-587201. 8. SMT. INDUMATI W/O. MALLIKARJUN ASUNDI AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O: VEERABHADRESHWAR NILAYA, VIDYA NAGAR, 1ST CROSS, - 3 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 BESIDE GADAG PETROL PUMP ROAD, BAILHONGAL 591102, TQ. BAILHONGAL DIST. BELAGAVI. 9. GAYATRI W/O. BASAVARAJ HERALAGI AGE: 54 YEARS, OCC: HOUSEHLD WORK, R/O: JEVARAPUR PETH, BANAGAR ONI, VIJAYAPUR 586101, TQ. DIST. VIJAYAPUR. …RESPONDENTS (BY SRI. A.M. GUNDAWADE, ADVOCATE FOR R1 TO R3; NOTICE R4, R6 TO R9 SERVED; R5-HELD SUFFICIENT V/O. DATED 19.11.2024) THIS RFA IS FILED UNDER SEC. 96 OF CPC. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 13.03.2023 PASSED IN OS NO.52/2019 PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI AND ALLOW THE COUNTER CLAIM OF THE DEFENDANTS IN ITS ENTIRETY, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 4 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) Captioned appeal is by the defendant No.4 assailing the preliminary decree drawn in O.S. No.52/2019, wherein Trial Court has granted 1/5th share to the plaintiffs. The said preliminary decree is under challenge. 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. The family tree is as under: Gurushidappa S/o. Puttappa Kurli (dead) Shanta W/o. Gurushidappa Kurli (dead) Girija Prakash Indumati Gayatri Manjunath (deft.1) (dead) (deft.2) (deft.3) (deft.4) Shivalila (pltff.1) Chetan (pltff.2) Vidya (pltff.3) - 5 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 4. The plaintiffs are wife and children of one Prakash, who is the second son of proposituous Gurushidappa. Widow and two children have filed the present suit seeking relief of partition and separate possession. The plaintiffs allege that the suit schedule properties are joint family ancestral properties and defendant No.4 is receiving rent from commercial property which are let out and plaintiffs have been denied the income generated from the commercial shops. Plaintiffs have also alleged that defendant No.4 was exclusively enjoying the family pension amount till demise of Shanta, who is the wife of propositus Gurushidappa. The plaintiffs have also alleged that schedule A property was purchased during the life time of proposituous by investing family funds and hence, prayed to grant their legitimate share. 5. Defendant No.4 on receipt of summons tendered appearance, filed written statement and stoutly denied the entire averments made in the plaint. Defendant No.4 asserted that schedule A property is his self acquired - 6 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 property and therefore, it is not available for partition. Defendant No.4, however, acknowledged that schedule B property is the joint family ancestral property and that plaintiffs are entitled for their legitimate 1/5th share. 6. Based on the rival pleadings, the Trial Court formulated issues. Though plaintiffs led in oral and documentary evidence, defendant No.4 having set up a plea that schedule A property is a self acquired property has not chosen to lead any oral and documentary evidence. The suit is accordingly decreed granting 1/5th share in both the properties. The present captioned appeal is filed by defendant No.4 asserting that schedule A property is the self acquired property and that the Trial Court has hastily decided the suit without affording opportunity to defendant No.4 to lead evidence in support of his counter claim. 7. Heard the learned counsel for the defendant No.4 and the learned counsel for the plaintiffs. - 7 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 8. We have given our anxious considerations to the pleadings in the plaint and written statement and counter claim set up by defendant No.4. We have also given our anxious considerations to the grounds urged in the captioned appeal. The following points that would arise for our consideration are: i. Whether the defendant No.4 has placed materials thereby entitling him to seek remand to lead rebuttal evidence? ii. Whether the judgment and decree of the Trial Court in granting 1/5th share in both the properties warrant any interference in the hands of this Court? Finding on point Nos.1 and 2. 9. Plaintiffs are the widow and son of predeceased son Prakash. Plaintiffs have instituted a suit contending that schedule A and B properties are joint family ancestral properties. Defendant No.4 has filed a written statement and has admitted that schedule B is a joint family ancestral property. However, there is serious contest - 8 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 insofar as schedule A property is concerned. Defendant No.4 has claimed that schedule A property is a self acquired property. 10. During the course of the hearing, learned counsel appearing on behalf of defendant No.4 has earnestly submitted that his client has invested substantial funds in the development and construction of the commercial complex situated on Schedule A property. It was contended that the said investment has resulted in the generation of considerable rental income from the premises. On this basis, a request has been made to this Court to grant liberty to defendant No.4 to produce evidence and substantiate the extent of his alleged investment in the pending final decree proceedings. However, upon careful consideration of the submissions advanced by the learned counsel, this Court is of the considered view that the claim of defendant No.4 asserting Schedule A property as his self-acquired property stands implicitly abandoned. The said inference is drawn from the - 9 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 tenor of the arguments, which center solely on the investment made and the income derived, without a corresponding assertion or proof of exclusive ownership over Schedule A property. 11. Furthermore, a perusal of the order sheet and the records of the case reveals that the plaintiffs commenced leading their evidence on 07.12.2021 and continued to do so until 11.01.2023. Throughout this entire period, defendant No.4 failed to avail himself of the opportunity to cross-examine the plaintiffs. This omission assumes critical importance, as it undermines the subsequent contention raised by defendant No.4 that he was denied a fair opportunity to contest the suit. Such an assertion is clearly belied by the records, which indicate that ample opportunity was available but not exercised. Therefore, the claim that defendant No.4 was deprived of an opportunity to participate in the proceedings is not only unsubstantiated but also demonstrably contrary to the factual matrix. - 10 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 12. Additionally, it is significant to note that at no point during the proceedings, either before the Trial Court or before this Court, has defendant No.4 produced any documentary evidence to establish that Schedule A property is his self-acquired property. In a partition suit, when a party makes a specific assertion that a certain property is not joint family property but is instead self- acquired, the burden of proof squarely lies on the party making such an assertion. In the present case, defendant No.4 has not placed on record any title deeds, revenue records, or any other documentary proof that would support his claim of self-acquisition. In the absence of such evidence, and in view of his failure to produce any material even at the appellate stage, this Court finds no compelling reason to remand the matter or to afford another opportunity to defendant No.4 to adduce evidence belatedly. 13. From a detailed perusal of the records, it is evident that defendant No.4 is in exclusive management - 11 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 and control of the commercial properties in question, and that he has been appropriating the rental income generated therefrom without furnishing any accounts to the plaintiffs. There is nothing on record to indicate that the said income has ever been shared with or disclosed to the other co-owners. Moreover, the plaintiffs have not pressed for a claim of mesne profits in this proceeding, despite the fact that Schedule A property includes a commercially valuable complex that is yielding substantial rent. Significantly, this fact is not seriously disputed by defendant No.4. In light of the above circumstances, this Court does not find any justification to exercise its discretion in favour of defendant No.4, and is not inclined to grant any equitable indulgence. 14. Having considered the entirety of the submissions and material on record, this Court is of the view that the appellant / defendant No.4 has failed to make out a prima facie case warranting remand. The prayer made by the appellant for a further opportunity to - 12 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 substantiate his alleged investment in the commercial complex constructed on Schedule A property cannot be entertained. It is not the case of defendant No.4 that the income derived from Schedule A property was ever distributed among all co-owners or family members in any proportion. On the contrary, his assertion that Schedule A property is his self-acquired property implicitly affirms his refusal to share the benefits accruing therefrom. Consequently, this Court finds no equitable ground to interfere with the findings of the Trial Court or to extend any further opportunity to the appellant. 15. In light of the foregoing discussion, and in the absence of any rebuttal evidence having been produced by defendant No.4, this Court is of the considered view that the Trial Court was fully justified in granting a one-fifth share in both Schedule A and Schedule B properties to the plaintiffs. The conclusions arrived at by the Trial Court are supported by cogent reasoning and do not suffer from any legal infirmity. Given the absence of effective contest from - 13 - NC: 2025:KHC-D:6333-DB RFA No. 100250 of 2023 defendant No.4 and the failure to discharge the burden of proof regarding his claim of self-acquisition, the decree passed by the Trial Court stands on firm legal footing. Accordingly, the points under consideration are answered in the negative, and the appeal is liable to be dismissed. For the foregoing reasons, the appeal is devoid of merits and same is dismissed. No orders as to costs. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE RSH / CT-CMU LIST NO.: 1 SL NO.: 27