- 1 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL RSA NO.101116 OF 2022 (DEC/INJ) BETWEEN: SRI. SIDDAYYA S/O. MAHALINGAYYA HIREMATH, SINCE DECEASED BY HIS LRS. 1. SMT. DANAMMA W/O. SIDDAYYA HIRREMATH, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 2. SHRI. DUNDESH S/O. SIDDAYYA HIREMATH, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 3. SHRI. VIRUPAKSHAYYA S/O. SIDDAYYA HIREMATH, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 4. SHRI. SHRIKANTAYYA S/O. SIDDAYYA HIREMATH, AGE: 49 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 5. SMT. SAVITA @ GANGU W/O. MALLIKARJUN HIREMATH, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 6. SMT. MAHADEVI W/O. MURAGESH HIREMATH, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. … APPELLANTS (BY SRI. M. C. HUKKERI, ADVOCATE) AND: SRI. PADADAYYA S/O. MAHALINGAYYA HIREMATH, SINCE, DECEASED BY HIS LRS. 1. MURAGEWWA W/O. PADADAYYA HIREMATH, AGE: 65 YEARS, OCC: HOUSE HOLD WORK, R/O: KULAHALLI, TQ: JAMKHANDI, DIST: BAGALKOT. 2. MAHALINGAYYA S/O. PADADAYYA HIREMATH, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: NEKAR ONI, TQ: BILAGI, DIST: BAGALKOT. 3. DRAKSHAYANI W/O. MURAGAYYA PALANKAMATH, AGE: 48 YEARS, OCC: HOUSE HOLD WORK, R/O: NEAR DARAGA, TQ: BILAGI, DIST: BAGALKOT. 4. SHIVANAND S/O. PADADAYYA HIREMATH, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: NEKAR ONI, TQ: BILAGI, DIST: BAGALKOT. 5. INDRAWWA W/O. CHIKKAYYA ADVIMATH, AGE: 44 YEARS, OCC: HOUSE HOLD WORK, R/O: BALLUR PLOT, TQ: MUDHOL, DIST: BAGALKOT. - 3 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 6. SUNANDA W/O. MRUTUNJAY HIREMATH, AGE: 42 YEARS, OCC: HOUSE HOLD WORK, R/O: NEAR HANUMAN TEMPLE GULAGANJI KOPP, TQ: DHARWAD, DIST: DHARWAD. 7. GANGU W/O. SHIVAYYA AMBLIMATH, AGE: 40 YEARS, OCC: HOUSE HOLD WORK, R/O: YADAWAD, TQ: MUDHOL, DIST: BAGALKOT. 8. SRI. BASAPPA S/O. KALLAPPA DONI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: MANTUR, TQ: MUDHOL, DIST: BAGALKOT. 9. GOVERNMENT OF KARNATAKA, REPRESENTED BY DISTRICT COMMISSIONER, BAGALKOT. 10. THE THASILDAR THASILDAR OFFICE, MUDHOL, TQ: MUDHOL, DIST: BAGALKOT. … RESPONDENTS (BY SRI. S.S.HIREMATH, ADVOCATE FOR R1 TO R4, R6 & R7; R5, R8 TO R10 ARE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO CALL THE RECORDS AND SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.34/2015, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC MUDHOL AT MUDHOL ON 09.08.2019 BY CONFIRMING THE TRIAL COURT JUDGMENT AND DECREE PASSED IN O.S.NO.422/2008 BY THE ADDL. CIVIL JUDGE AND JMFC MUDHOL AT MUDHOL, ON 13.07.2015; AND ALSO SET ASIDE THE TRIAL COURT JUDGMENT AND DECREE PASSED IN O.S.NO.422/2008 BY THE ADDL. CIVIL JUDGE AND JMFC MUDHOL AT MUDHOL, ON 13.07.2015 AND THE SUIT OF THE PLAINTIFF MAY BE DECREED AND ETC., THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the plaintiff, since deceased represented by the legal representatives, being aggrieved by the judgment and decree dated 13th July 2015, passed in O.S. No.422/2008 on the file of the Addl. Civil Judge and JMFC, Mudhol (for short “the trial Court”), whereby the suit of the plaintiff seeking a declaration and consequential relief of permanent injunction is dismissed, which is confirmed by the judgment and order dated 9th August 2019, passed in R.A. No.34/2015 on the file of the Addl. Senior Civil Judge and JMFC, Mudhol (for short “the First Appellate Court”). 2. The above suit in O.S. No.422/2008 is filed by the plaintiff in respect of the properties being, (i) land bearing R.S. No.137/1+2B measuring 3 acres 37 guntas; (ii) land bearing R.S. No.137/1+2K measuring 4 acres; and (iii) a house property No.19, all situate at Mantur Village. The plaintiff contended inter alia, - 5 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 (a) That he is the real brother of defendant No.1 and their father, Mahalingayya, was the owner of the aforesaid properties who passed away leaving him behind the plaintiff and defendant No.1 as his legal heirs. (b) That during 1979-80, a partition of the suit properties has taken place, wherein item No.2 of the suit property was allotted to defendant No.1, and item Nos.1 and 3 of the suit properties were allotted to the plaintiff. However, there was no documentary evidence of the said partition. Since, defendant No.1 was the eldest son, item No.3 of the suit properties was mutated in his name, though the plaintiff and his family members have been in possession and enjoyment of the said property. (c) That during the year 1982-83, defendant No.1 sold item No.2 of the suit property to defendant No.2 and from the sale proceeds, purchased a house at Bilagi in the name of his wife, who was accordingly made as a party to the suit. At the time of sale, as item No.2 of the suit properties stood jointly in the names of the plaintiff and defendant No.1, both executed the deed of sale in favour of defendant No.2. However, the entire sale consideration was received solely by defendant No.1. - 6 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 (d) Despite having no right, title or interest in respect of item Nos.1 and 3 of the suit properties, defendant No.1 obtained mutation entries in his name for a half share without the knowledge of the plaintiff. As disputes arose, the matter was taken to Revenue Courts, and hence, defendant No.3 and 4 were impleaded. Defendant No.1 taking advantage of his name being reflected in the revenue records, began interfering with plaintiffs possession and enjoyment of the properties, leading to the filing of the suit. 3. Defendant No.1 filed his written statement, while denying the plaint averments including the claim of an earlier partition and separate possession by the plaintiff, he contended: (a) That during the year 1982-83, due to family and legal necessity, both the plaintiff and defendant No.1 had jointly sold item No.2 of the suit properties to defendant No.2, and the sale consideration was equally shared between them. (b) That there was no partition in respect of item Nos.1 and 3 of the suit properties, and based on the advice of the elders, half of the said properties was allotted to him. Though the plaintiff objected, RTC proceedings - 7 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 were conducted before the Tahsildar, Mudhol and mutation entries were effected on 25.01.2005. Subsequently, RTS appeal proceedings were initiated before the Assistant Commissioner and were also disposed off. That without disclosing these aspects the matter, the plaintiff filed the present suit with a malafide intention of harassing defendant No.1. (c) That the plaintiff and defendant No.1 are in separate possession of their respective portions of schedule “A” property, and there is no question of defendant No.1 interfering with the possession of the plaintiff. Accordingly, he prayed for the dismissal of the suit. 4. Defendant No.2 filed a written statement denying the plaint averments, except for the facts that he had purchased the suit land. He contended that item No.2 of the suit property was sold to him for a consideration of Rs.10,000/- by the plaintiff and defendant No.1, and their family members through a registered deed of sale dated 10.07.1980. Since then, he has been in possession of item No.2 of the suit property. Accordingly, he prayed for the dismissal of the suit. - 8 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 5. The trial Court framed the following issues for its consideration: 1. Whether the plaintiff proves that, he is the absolute owner and in peaceful possession of suit schedule property? 2. Whether the plaintiff proves that, the defendant No.1 has interfered and obstructed him in his peaceful possession? 3. Whether the plaintiff is entitled for relief of permanent injunction? 4. Whether the plaintiff is entitled for declaratory relief prayed? 5. What order? 6. The son of the plaintiff, Dundayya Siddayya Hiremath, has examined himself as PW1 and also examined two more witnesses as PW2 and PW3 and exhibited 4 documents marked as Exs.P1 to P4. Defendant No.1 examined himself as DW1 and also examined three other witnesses as DW2 to DW4 and exhibited 9 documents marked as Exs.D1 to D9. 7. On appreciation of the evidence, the trial Court answered issue Nos.1 to 4 in the negative and consequently dismissed the suit. - 9 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 8. Aggrieved by the judgment and decree, the plaintiff preferred an appeal in R.A. No.34/2015 before the First Appellate Court. The First Appellate Court framed the following points for its consideration: 1. Whether the plaintiff proved that he is the absolute owner in possession of the suit item no.1 and 3 and the defendant no.1 has caused interference in his possession and enjoyment of the suit properties? 2. Whether the judgment and decree passed by the lower court is illegal and it requires interference by this court? 3. What order? 9. On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 and 2 in the negative and consequently dismissed the appeal, thereby confirming the judgment and decree of the trial Court. 10. Being aggrieved, the plaintiff has approached this Court by filing the present Regular Second Appeal. 11. Learned counsel appearing for the appellants, while reiterating the grounds urged in the memorandum of appeal, submitted that both the trial Court and the First - 10 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 Appellate Court failed to appreciate the fact that there was an oral partition between the plaintiff and defendant No.1, in terms of this partition, the plaintiff and defendant No.1 have been residing separately and therefore, the properties could no logner be considered as the joint family properties. 12. 12. He further submitted that this aspect of the matter was admitted by defendant No.1, who also admitted that in item No.3 of the suit properties, the plaintiff is residing along with his family members, which part of the evidence has not been properly appreciated by the trial Court and the First Appellate Court. Hence, he submits that the substantial question of law would arise for consideration in this appeal. . 13. Heard. Perused the records. 14. The trial Court and the First Appellate Court on perusal of the records and the evidence led in by the parties have come to the conclusion that as per Ex.P2, which is the extract of RTC in respect of the property namely item No.1 of the suit property bearing R.S. No.137/1+2B, reflects the - 11 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 names of the plaintiff and defendant No.1. Ex.P4 is the extract in respect of item No.3 of the suit properties namely house property No.19 standing in the name of defendant No.1. The trial Court and the First Appellate Court have also found that in terms of the deed of sale dated 10.07.1980 both the plaintiff and defendant No.1 had jointly sold item No.2 of the suit properties in favour of defendant No.2 and that if at all there was a partition as contended by the plaintiff, there was no need for the plaintiff and defendant No.1 to jointly execute the deed of sale in respect of item No.2 of the suit properties in favour defendant No.2. 15. That since the trial Court and the First Appellate Court have found and declined to accept the case of the plaintiff of earlier partition, since revenue entries are still reflecting the names of the plaintiff and defendant No.1 in respect of item No.1 of the suit properties, have drawn presumption in terms of Section 133 of the Karnataka Land Revenue Act to hold that the said property is still standing - 12 - HC-KAR NC: 2025:KHC-D:8219 RSA No. 101116 of 2022 in the joint names of the plaintiff and defendant No.1 and there is no proof of oral partition as claimed by the plaintiff. 16. 16. The aforesaid reasoning and conclusion is arrived at by the trial Court is based on the documentary evidence of continuous possession and enjoyment of the suit properties by the plaintiff and defendant No.1 and in the absence of plaintiff establishing with cogent material evidence with regard to prior partition, the reasons and conclusion arrived at by the trial Court and the First Appellate Court cannot be found fault with. The appeal lacks merit and no substantial question of law would arise for consideration. Accordingly, the appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE VNP/CT-ASC List No.: 1 Sl No.: 7