- 1 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 997 OF 2015 (PAR) BETWEEN: N VENKATAPATHI SETTY AGED ABOUT 53 YEARS, S/O LATE N ANKAIAH, SECRETARY (VILLAGE ACCOUNTANT), R/AT TILES FACTORY CIRCLE, MUTHYALPET, MULBAGAL TOWN, KOLAR DISTRICT …APPELLANT (BY SRI. NAGESH M., ADVOCATE) AND: 1. N A THIPPAIAH SHETTY (DIED) BY HIS LRS SMT RANGAMMA, AGED ABOUT 64 YEARS, W/O LATE THIPPAIAH SHETTY, R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TQ, KOLAR DISTRICT – 563 132 2. RAVICHANDRA BABU N T AGED ABOUT 44 YEARS, S/O LATE THIPPAIAH SHETTY, R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TQ, KOLAR DIST – 563 132 Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 3. PAVAN N T AGED ABOUT 25 YEARS, S/O THIPPAIAH SHETTY, R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TQ, KOLAR DIST. – 563 132 4. SMT. RADHAMMA, AGED ABOUT 47 YERS, W/O RADHAKRISHNAIAH SETTY, R/AT PATHAPETA, SURAIAH ST, PALAMANER TOWN, CHITTOOR DIST, A.P. – 517 408 5. SMT. NAGAMMA, AGED ABOUT 32 YERS, W/O SURESH P N D/O N A THIPPAIAH SETTY, R/O MOTHAKAPALLI, NEAR BEEDHI COLONY, GANGAVARAM MANDALAM, CHITTOOR DISTRICT, A.P. – 517 408 6. N A SATHYANARAYAN SETTY, AGED ABOUT 47 YEARS, S/O LATE N ANKAIAH, R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 7. SMT. LAKSHMI AGED ABOUT 51 YEARS, W/O LATE A N JAYAPALA SETTY R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 - 3 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 8. J N MADHUSUDHAN AGED ABOUT 31 YEARS, S/O LATE A N JAYAPALA SETTY R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 9. MS. J N KAVITHA, AGED ABOUT 29 YEARS, D/O LATE A N JAYAPALA SETTY R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 10. MS. J N MAMATHA, AGED ABOUT 27 YEARS, D/O LATE A N JAYAPALA SETTY R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 11. MS J N REVATHI, AGED ABOUT 26 YEARS, D/O LATE A N JAYAPALA SETTY R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 132 12. V K SRINIVASULU AGED ABOUT 60 YEARS, S/O LATE V L KITTAIAH SHETTY, R/AT THYAGARAJA COLONY, MULBAGAL TALUK, KOLAR DIST. – 563 131 13. SMT. SHANTHAMMA, AGED ABOUT 56 YEARS, W/O MUNIYAPPA,. R/AT NAGAVARA VILLAGE, BYRAKUR HOBLI, MULBAGAL TALUK, KOLAR DIST. – 563 131 - 4 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 14. SMT SAROJAMMA AGED ABOUT 53 YEARS, W/O BALASUBRAMANYAM R/AT RANGAPPA BUILDING, EDDULA SANTHA STREET, PALAMANERU TOWN, CHITTOOR DISTRICT, A P – 517408 15. SMT AKKAMMA AGED ABOUT 50 YEARS, W/O VENKATARAVANAPPA R/AT UPARAHALLI VILLAGE, BYRAKUR HOBLI, MULBAGAL TQ, KOLAR DISTRICT – 563132 16. SMT RATHNAMMA AGED ABOUT 47 YEARS, W/O PEDDAREDDAPPA R/AT KOTA NAKKANAPALLI VILLAGE, V KOTA MANDALAM, CHITTOOR DISTRICT, A P-517424 …RESPONDENTS (BY SRI. K.V. RAMESH, ADVOCATE FOR R1-R11 & R13-R16 R12 SERVED) THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO CALL FOR RECORDS IN R.A.NO.27/2012 DATED 12.01.2015 AND TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.57/2012 DATED 12.01.2015 ON THE FILE OF THE II ADDITIONAL SR. CIVIL JUDGE AND JMFC, KOLAR VIDE ANNEXURE-A, SET ASIDE THE JUDGMENT AND DECREE DATED 18.07.2011 IN O.S.NO.276/2007 OF THE TRIAL COURT I.E., THE PRINCIPAL JUNIOR CIVIL JUDGE AT MULBAGAL, KOLAR DISTRICT VIDE ANNEXURE-B. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 5 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 12.01.2015 passed in Regular Appeal No.57 of 2012 by the learned II Additional Senior Civil Judge and J.M.F.C., Kolar (itinerating at Mulbagal). 2. For convenience, the parties are referred to based on their rankings before the Trial Court, i.e., the appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for partition and separate possession, contending that the plaintiff and defendants are members of a Hindu Undivided Family, and the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants, of which, no partition has - 6 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 been effected by metes and bounds. The plaintiff demanded partition and separate possession of the suit schedule properties, but the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. It is contended that one Ankaiah Shetty was the common ancestor who died in 1992. After his death, the plaintiffs and defendant Nos.1 to 7 succeeded to his estate. After the death of propositus, defendant No.1 became the kartha of the family. Some properties have been purchased out of the joint family nucleus in the name of Jaipala Shetty. 5. It is contended that the husband of defendant No.3 had no right to alienate item No.1 of the suit schedule property in favour of defendant No.8. The husband of defendant No.3 has sold the said property to defendant No.8. The sale transaction is null and void. Defendant No.8 has no right, title and interest over - 7 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 item No.1 of the suit schedule properties. Hence, prays to decree the suit. 6. Defendant No.8 filed a written statement denying the averments made in the plaint. It is contended that item No.1 of the suit schedule property is not the joint family property of the plaintiff and defendant Nos.1 to 7. It is contended that there was an oral partition during 1988-89, since then, all of them have been residing independently, and separately. It is contended that the vendor of defendant No.8 had purchased item No.1 of the suit schedule property under a registered sale deed dated 14.08.1991. It is contended that item No.1 property is the self- acquired property of the vendor of defendant No.1. The plaintiff is not having any right, title, interest or possession over the suit schedule properties. The suit is a collusive suit. - 8 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 7. It is contended that defendant No.8 had purchased item No.1 of the suit schedule property under a registered sale deed dated 30.08.1995, and based on the registered sale deed dated 30.08.1995, the name of defendant No.8 was entered in the revenue records. Hence, it is contended that the suit filed by the plaintiff regarding item No.1 of the suit schedule property is barred by limitation. Hence, prays to dismiss the suit regarding item No.1 of the suit schedule property. 8. The Trial Court, based on the pleadings of the parties, framed the following issues for its consideration : ”1. Whether the plaintiff proves that the himself and the defendants No.1 to 7 are the members of joint Hindu family and suit properties are their ancestral/joint family properties ? 2. Whether the plaintiff further proves that he is having 1/4th share in the suit properties and if not what is the extent of his share? - 9 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 3. Whether the plaintiff further proves that the suit properties being in joint possession of plaintiff and defendants No.1 to 7 and the 1st defendant without legal necessities for his bad habits sold out the suit properties to defendant No.8 without consent of the plaintiff to deprive right of the plaintiff in the suit properties under false and concocted document of sale deed dated 30.8.1995 and such sale deed is null & void and not binding upon the plaintiff? 4. Whether the defendant No.8 proves that partition has taken place between the plaintiff and defendants No.1 to 7 long back in the year 1988-89 and the suit properties were given to the share of defendants 1 to 7? 5. Whether the defendant No.8 further proves that he purchased the suit schedule item No.1 property on 14.8.1991 for valuable consideration as a bona fide purchaser and it is his self acquired property ? - 10 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 6. Whether the defendant No.8 further proves that defendants No.1 to 7 colluded with the plaintiff to get wrongful gain instigated the plaintiff to file this false suit? 7. What order or decree ?” 9. The plaintiff, to substantiate his case, examined himself as PW-1, examined three witnesses as PWs-2 to 4, and marked 27 documents as Exhibits P-1 to 27. 10. Conversely, defendant No.8 examined himself as DW-1, and marked 22 documents as Exhibits D-1 to D-22. 11. The Trial Court after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence, answered issue Nos.1 and 3 in the affirmative, issue No.2 partly in the affirmative; issue Nos.4 to 6 in the negative; and issue No.7 as per the final order. - 11 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 12. The Trial Court partly decreed the suit of the plaintiff with costs vide judgment dated 18.07.2024. It is declared that the plaintiff is entitled to a 1/8th share in item Nos.1 to 4, 6, 7, 9 to 11 and 16 to 19, and further ordered that the plaintiff is also entitled to a 1/8th share in item Nos.5, 12, 13, 14 and 15 as per the extent mentioned in the RTC extracts, by metes and bounds, and the plaintiff was put in separate possession of the same. However, regarding suit schedule item No.8 is concerned, the suit of the plaintiff was dismissed. 13. Defendant No.8, aggrieved by the judgment and preliminary decree dated passed in O.S. No.276/2007, preferred an appeal in R.A. No.57 of 2012, on the file of the learned II Addl. Civil Judge and JMFC, Kolar (itinerating at Mulbagal). - 12 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 14. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration: “1. Whether the judgment and decree passed in O.S.276/2007 dated 18.07.2011 in respect of item No.1 property by the learned Prl. Civil Judge & JMFC, Mulbagal is illegal, improper, arbitrary which needs interference by this Court? 2. What order? ” 15. The First Appellate Court, after re-assessing the entire evidence on record, answered point No.1 in the affirmative, and point No.2 as per the final order. The Regular Appeal filed by defendant No.8 was allowed by the First Appellate Court vide judgment dated 12.01.2015 and consequently, dismissed the suit of the plaintiff regarding item No.1 of the suit schedule property, and maintained the judgment and decree dated 18.07.2011 passed in Original Suit - 13 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 No.276/2007 by the Trial Court regarding the other items of the suit schedule properties. 16. The plaintiff, aggrieved by the judgment and decree passed in R.A. No.57/2012, filed this Regular Second Appeal. 17. Heard the arguments of the learned counsel for the plaintiff. 18. The learned counsel for the plaintiff submits that item No.1 of the suit schedule property was purchased during the life-time of his father. Item No.1 of the suit schedule properties is the ancestral and joint family property of the plaintiff and the defendants. He submits that the plaintiff is entitled to a share in item No.1 of the suit schedule property. The First Appellate Court has not properly appreciated the entire evidence on record regarding item No.1 of the suit schedule property. Hence, on these grounds, he submits that the First Appellate Court committed an - 14 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 error in dismissing the suit regarding item No.1 of the suit schedule property. Accordingly, prays to allow the appeal. 19. Perused the records, and considered the submissions of the learned counsel for the plaintiff. 20. The only dispute in this Regular Second Appeal is regarding item No.1 of the suit schedule property. It is the case of the plaintiff that item No.1 of the suit schedule property was purchased out of the joint family nucleus. The said suit schedule property is the joint family property of the plaintiff and the defendants, and no partition has been effected between the parties to the suit by metes and bounds. The plaintiff to substantiate his case examined himself as PW-1, examined three more witnesses as PWs.2 to 4 and marked 27 documents as Exs. P-1 to P-27. - 15 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 21. From the perusal of the evidence adduced by the plaintiff, it is clear that the plaintiff has failed to establish his contention, that the family possessed sufficient nucleus for purchasing item No.1 of the suit schedule property. 22. In a suit for partition and separate possession, the initial burden is always on the plaintiff to prove the relationship between the parties to the suit, and the nature of the suit schedule properties. The plaintiff, except oral evidence, and some revenue documents, has not produced any other records to establish that the family was possessing a sufficient nucleus to purchase item No.1 of the suit schedule property in the name of A.N.Jayapala Setty, and the said property is the joint family property. 23. The First Appellate Court, considering the entire evidence on record, has recorded a finding regarding - 16 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 item No.1 of the suit schedule property at paragraph No.19 of its judgment, to the following effect: “19. The defendant No.8 has produced Ex.D11 to D15 documents in order to establish that some house properties are standing in the names of plaintiff and the wife of defendant No.2, but the defendant No.8 has not pleaded anything about the existence of above house properties to the joint family of plaintiff which are not included to the suit. Therefore Ex.D11 to Ex.D15 documents can not be looked into in the absence of supporting pleadings. Ex.D16 to D22 are the tax paid receipts which discloses that the defendant No.8 has paid land revenue to the suit item No.1 property since from the year 1995 till 2010. These documents clearly establishes that the defendant No.8 is enjoying the suit item No.1 property since from the year 1995 without any obstructions or interference. Ex.P4 is the RTC extract of suit item No.1 property which clearly discloses that the name of defendant No.8 is entered as owner/occupier of the said property by virtue of M.R.No.29-3/1994-95. The plaintiff who is working as Secretary in - 17 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 the revenue department has not at all challenged the mutation orders passed in favour of defendant No.8 in the year 1994- 95 till today. Thereby the defendant No.8 by producing the oral & documentary evidence has clearly proved that suit item No.1 property is the absolute property of late Jaipal shetty who has sold the same in his favour. He has further proved that he is in exclusive possession of the suit item No.1 property since from 1995 itself. The plaintiff has not proved that the suit item No.1 property was purchased out of joint family funds in the name of late Jaipal shetty. When the plaintiff has failed to prove that the suit item No.1 property is the joint family property, then he and other legal heirs of N.Ankaiah shetty are not entitled for any share” 24. From a perusal of the findings recorded by the First Appellate Court at paragraph 19 of its judgment, it is clear that the plaintiff has not proved that item No.1 of the suit schedule property was purchased out of the joint family funds in the name of late Jaipala Setty. The plaintiff has failed to prove that item No.1 - 18 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 of the suit schedule property was purchased from the joint family fund. 25. The First Appellate Court, considering the sale deed dated 30.08.1995 executed by husband of defendant No.3 in favour of defendant No.8, has rightly held that item No.1 of the suit schedule property is not the joint family property of the plaintiff and the defendants. Further, the sale deed was executed in 1995, and the suit was filed in 2007. The plaintiff, despite having the knowledge regarding the execution of the registered sale deed in favour of defendant No.8, did not file the suit within a reasonable time. The suit has been filed after 12 years from the date of execution of the registered sale deed. 26. In the facts and circumstances of the case, I am of the view that the First Appellate Court has rightly passed the impugned judgment, and I do not find any error in the impugned judgment, or any substantial - 19 - HC-KAR NC: 2025:KHC:24969 RSA No. 997 of 2015 questions of law arise for consideration in this Regular Second Appeal. 27. In the result, I proceed to pass the following order. ORDER (i) This Regular Second Appeal is dismissed. (ii) The judgment and decree dated 12.01.2015 passed in R.A. No.57 of 2012 by the learned II Additional Senior Civil Judge and JMFC, Kolar (itinerating at Mulbagal), is hereby affirmed. (iii) No order as to the costs. (iv) In view of the dismissal of the appeal, pending interlocutory applications, if any, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE RK CT:KHV List No.: 1 Sl No.: 27