- 1 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100224 OF 2021 (PAR-) BETWEEN: SRI. VASANT BEERANAN NAYAK, AGE: 44 YEARS, OCC: AGRICULTURE, R/O. ADLUR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. …APPELLANT (BY SRI. H.M. DHARIGOND, ADVOCATE) AND: MEERA KOM NITYANAND NAYAK, SINCE DECEASED BY LR’S. 1. SRI. NITYANAND S/O. PARAMESHWAR NAYAK, AGE: 56 YEARS, OCC: AGRICULTURIST, R/O. ADLUR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 2. AKSHAYKUMAR NITYANAND NAYAK, AGE: 24 YEARS, OCC: AGRICULTURIST, R/O. ADLUR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 3. VINAYA D/O. NITYANAND NAYAK, AGE: 20 YEARS, OCC. AGRICULTURIST, R/O. ADLUR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 4. SMT. DEVAMMA KOM BEERANNA NAYAK, AGE: 79 YEARS, OCC: HOUSE WIFE, R/O. ADLUR AGASOOR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 5. SRI. RAMACHANDRA BEERANNA NAYAK, AGE: 59 YEARS, OCC: AGRICULTURIST, R/O. ADLUR AGASOOR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.18 10:57:30 +0530 - 2 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 6. SMT. SHANTI KOM NARAYAN GAONKAR, AGE: 55 YEARS, OCC: HOUSE WIFE, R/O. ADLUR AGASOOR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 7. SRI. GIRISH BEERANNA NAYAK, AGE: 53 YEARS, OCC: AGRICULTURIST, R/O. INFRANT TARANGA HOTEL ADLUR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 8. SRI. MADHUKAR BEERANNA NAYAK, AGE: 50 YEARS, OCC: AGRICULTURIST, R/O. ADLUR AGASOOR, TQ: ANKOLA, DIST: UTTAR KANNADA-581314. 9. SMT. SUDHA KOM SRINIVAS NAYAK, D/O. BEERANNA NAYAK, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O. HIREGUTTI, TQ: ANKOLA, DIST: UTTAR KANNADA-581333. 10. SMT. RAJAMMA KOM SRINIVIAS NAYAK, D/O. BEERANNA NAYAK, AGE: 46 YEARS, OCC: GOVERNMENT HIGH SCHOOL MAGEGA, POST: YEDAGA, TQ: HALIYAL, DIST: UTTAR KANNADA-581329. …RESPONDENTS (BY SRI. S.V. YAJI, ADVOCATE FOR R1, R2, R3 & R10; R5 & R8-HELD SUFFICIENT; R4, R6, R7 & R9 ARE SERVED & UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 23.03.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, ANKOLA IN R.A.NO.22/2019 REVERSING THE JUDGMENT AND DECREE DATED 16.08.2019 PASSED BY THE PRL. CIVIL JUDGE, ANKOLA, IN O.S. NO.4/2016 AND DISMISS THE SUIT IN O.S.NO.04/2016 BY AWARDING COSTS THROUGHOUT TO THE APPELLANT HEREIN. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 ORAL JUDGMENT This Regular Second Appeal is filed by the defendant No.8, challenging the judgment and decree dated 23.03.2021 passed in RA No.22/2019 on the file of Senior Civil Judge, Ankola (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 16.08.2019 passed in OS No.4/2016 on the file of Civil Judge and JMFC, Ankola (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. It is the case of the plaintiff that, the plaintiff and defendants are the children of Sri. Beeranna Giriyanna Nayak. The father of the plaintiff died on 24.02.2014 leaving behind his wife-defendant No.1 and remaining defendants and the plaintiff. It is the case of the plaintiff that, the suit schedule properties are the inherited - 4 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 properties of her father and as such sought for division of the properties. Hence, the plaintiff filed OS No.4/2016, seeking relief of partition and separate possession in respect of the suit schedule properties. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific contention of defendant Nos.1 and 8 that, after the death of Sri. Beeranna Giriyanna Nayak on 24.02.2014, there was no joint family in existence and the property has been divided orally during the lifetime of Beeranna Giriyanna Nayak and therefore, sought for dismissal of the suit. 5. Defendant No.5 has filed separate written statement contending that the properties have been divided amongst the plaintiff and defendants and accordingly, sought for dismissal of the suit. 6. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. - 5 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 7. In order to establish their case, plaintiff was examined one witness as PW1 and got marked 14 documents as Exs.P1 to P14. On the other hand, defendants have examined one witness as DW1 and produced 9 documents as Exs.D1 to D9. 8. The Trial Court, after considering the material on record, by its judgment and decree dated 16.08.2019 dismissed the suit and being aggrieved by the same, the legal representatives of the plaintiff has preferred Regular Appeal in RA No.22/2019 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 16.08.2019 allowed the appeal and set aside the judgment and decree passed by the Trial Court in OS No.4/2016. Being aggrieved by the same, the appellant/defendant No.1 has preferred this Regular Second Appeal. 9. This Court vide order dated 09.11.2021 formulated the following substantial question of law. - 6 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 “Whether the first appellate court is justified in holding that the signatures found on Ex.D4 are not that of the plaintiff when compared with his admitted signatures, which is contrary to section 73 of the Indian Evidence Act?” 10. I have heard Sri. H.M. Dharigond, learned counsel appearing for the appellant and Sri. S. V. Yaji, learned counsel appearing for the respondent Nos.1, 2, 3 and 10. 11. It is contended by the learned counsel appearing for the appellant that there was oral partition in the family of Beeranna Giriyanna Nayak during 1984 and properties have been divided among the sons and in this regard notice regarding mutation was served to the plaintiff and other sisters of the plaintiff and they have not objected for the same and therefore it is contended that the partition has taken place in the family and the said aspect of the matter was not considered by the First Appellate Court. It is also submitted by the learned counsel appearing for the appellant that the plaintiff has - 7 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 not challenged the transactions made by the defendants with the third party and therefore, the suit itself is not maintainable before the Trial Court and accordingly, sought for interference of this Court. 12. Per Contra, learned counsel appearing for the respondent Nos.1, 2, 3 and 10 sought to justify the impugned judgment and decree passed by the First Appellate Court. 13. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. In order to ascertain the relationship between the parties as averred in the plaint, the genealogy reads as under: Beeranna Giriyanna Nayak (Pokka) Devamma Ramachandra Shanti Gireesh Meera Madhukar Sudha Rajamma Vasant D1 D2 D3 D4 (P) D5 D6 D7 D8 14. On careful examination of genealogy would indicate that, the plaintiff and defendant Nos.2 to 8 are - 8 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 the children of Beeranna Giriyanna Nayak and defendant No.1. It is the case of the plaintiff that, the suit schedule properties are the joint family properties and therefore, sought for division in the property. 15. On the other hand, the main contention of the defendant No.8 that, there was already a partition in the joint family during 1984 and in this regard a Vardi was given as per Ex.D4 which came to be acknowledged and signed by the plaintiff. In the back drop of these aspects, I have carefully examined the finding recorded by both the Courts below. 16. In view of the fact that the contesting defendant no.8 alleged that there was partition in the joint family, then it is the duty of defendant No.8 to prove the partition in the family. Undisputably, no partition deed was produced before the Trial Court and entire case of the defendant No.8 revolves around Ex.D4. Ex.D4 is the notice issued by the Village Accountant to enter the name in the mutation entries and same would not be consider as a document to substantiate the partition in the joint family. - 9 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 It is well established principle that, any number of revenue documents including the Ex.D1 and D2 are only the revenue documents and same cannot be basis to arrive at a conclusion that, the partition has taken place in the absence of the partition deed. In that view of the matter, as the defendants have failed to establish before the Trial Court with cogent oral and documentary evidence to establish the partition in the joint family properties, I am of the view that, the Trial Court has committed an error in dismissing the suit however, same was rectified by the First Appellate Court by exercising jurisdiction under Order 41 Rule 31 of CPC. 17. It is also to be noted that, the plaintiff has disputed her signature in Ex.D4 and the said aspect has been considered by the First Appellate Court at paragraph No.42 of the impugned judgment and decree and therefore, I am of the view that, the substantial question of law framed above favours the plaintiff and accordingly, the appellant herein has not made out a case for interference. - 10 - NC: 2025:KHC-D:4760 RSA No. 100224 of 2021 18. In the result, appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 38