- 1 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.425 OF 2025 (PAR) BETWEEN: 1. SMT. JAYAMMA W/O. LATE HONNEGOWDA AGED 65 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130. 2. SHRI. MUNISWAMY S/O. LATE HONNEGOWDA AGED 45 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130. 3. SMT. VASANTHA D/O. LATE HONNEGOWDA W/O. LAKKANNAGOWDA AGED 34 YEARS RESIDING AT BANDIHALLI VILLAGE NITTUR HOBLI, GUBBI TALUK TUMAKURU DISTRICT-572 223. …APPELLANTS (BY SMT. LAVANYA, ADVOCATE FOR SRI. KIRAN KUMAR P., ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 AND: 1. SHRI. GANGAIAH S/O. KEMPAHONNAIAH AGED 66 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130. 2. SHRI. NANJUNDAIAH S/O. KEMPAHONNAIAH AGED 64 YEARS RESIDING AT KEMPASAGARA VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130. 3. SHIVAMMA W/O. LATE KEMPANNA D/O. LATE KEMPAHONNAIAH AGED 56 YEARS RESIDING AT SHETTIGERE VILLAGE KOTHAGERE HOBLI KUNIGAL TALUK TUMAKURU DISTRICT-572 130. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.10.2017. PASSED IN R.A.NO.55/2017 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2017 PASSED IN O.S.NO.42/2009 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, KUNIGAL. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellants. This second appeal is filed against the concurrent finding. 2. The factual matrix of the case of the plaintiffs before the Trial Court that father of the plaintiff Nos.2 and 3 and husband of the plaintiff No.1 by name Honnegowda and defendant Nos.1 and 2 are own brothers. Plaintiffs and defendants are the undivided joint family members. Suit schedule properties are undivided ancestral and joint family properties of plaintiffs and defendants. There is no partition between the plaintiffs and defendants either oral or written. The plaintiffs and defendants are in joint and constructive possession over the suit schedule properties and hence having a right over the suit schedule properties. The defendants in pursuance of the suit summons have appeared and filed the written statement admitting the relationship between the parties. However, specifically - 4 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 contended that already partition was taken place between the parties as per the panchayath paalupatti dated 27.01.1990, the same took place between plaintiffs, defendants and one Nanjamma who was the grandmother of the plaintiff Nos.2 and 3, mother of defendant Nos.1 and 2 and mother-in-law of plaintiff No.1. As per the said panchayath paalupatti, Katha and Pahani of properties made out in the name of the defendants by revenue authority and plaintiffs have suppressed the same. The Trial Court having considered the pleadings of the plaintiffs and defendants, framed the issue whether the plaintiffs proves that suit schedule properties are undivided ancestral and joint family properties and whether defendant Nos.1 and 2 prove that already there was a partition and whether plaintiffs are entitled for the relief of partition. 3. The Trial Court having considered both oral and documentary evidence available on record and particularly admission on the part of P.W.1 in the cross-examination, a - 5 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 categorical admission was made that in Ex.D.4, a recital was made that property came in a family partition and the same is an ancestral property and same stands in the name of the plaintiff No.1 and the same is in her possession and taking into note of specific admission in paragraph No.20 comes to the conclusion that already there was a partition and so also in paragraph No.25, comes to the conclusion that plaintiffs knowingfully and intentionally not pleaded about the Ex.D.4 – sale deed and withholds a vital document in order to gain advantage on the other side and dismissed the suit. 4. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court. The First Appellate Court while considering the point No.2 which was framed whether the judgment and decree of the Trial Court is perverse and it requires interference in paragraph No.22 and so also in paragraph No.23 in detail discussed about both oral and documentary evidence placed on record and particularly - 6 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 taken note of Ex.D.4, Ex.D.5 and Ex.D.6 since defendant Nos.1 and 2 have also entered into an agreement of sale in respect of their share which have been allotted to them in the said paalupatti and taken note of mutation register, certified copy of the order sheet in RRT appeal and sale deed at Ex.D.2 and Ex.D.3 and comes to the conclusion that when there was already a partition between the members of the family, question of granting the relief of partition does not arise and dismissed the appeal. 5. The counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in coming to the erroneous conclusion that already there was a partition by taking into note of recital of document Ex.D.4. The counsel would vehemently contend that D.W.1 in his cross-examination categorically admitted that late Sri.Honnegowda who is the predecessor in interest of the appellants herein is also a coparcener and he had other self acquired properties as well and only based on the recital in Ex.D.4 committed an error and - 7 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 ought to have taken note of the same carefully and the same has not been done. The counsel also would vehemently contend that this Court has to frame a substantive question of law that Courts below were not justified in concluding that there was a prior partition in the joint family on considering recital of document Ex.D4 and hence it requires admission and frame a substantive question of law. 6. Having heard the appellants’ counsel and also considered the reasons assigned by the Trial Court, when the specific case is pleaded by the plaintiffs/appellants before the Trial Court that suit schedule properties are undivided ancestral and joint family properties of themselves and defendant Nos.1 and 2, there was no any earlier partition. But, categorically admitted during the course of cross-examination that document of Ex.D4 recital is very clear that there was a earlier partition and based on that panchayat paalupatti, schedule property is an ancestral property allotted to the plaintiffs and the - 8 - HC-KAR NC: 2025:KHC:41452 RSA No. 425 of 2025 same stands in the name of the plaintiff No.1 and is in the possession of the plaintiffs and considering this admission which takes out the case of the appellants/plaintiffs. Apart from that, parties have acted upon based on the said panchayat paalupatti and when such material available on record, when the specific plea is taken that there was no partition and when the defendant took the specific plea that already there was a partition and the same is substantiated by eliciting the answer from the mouth of P.W.1, I do not find any ground to admit and frame any substantive question of law. 7. In view of the discussions made above, I pass the following: ORDER Second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 43