- 1 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE S.G.PANDIT AND THE HON'BLE MR. JUSTICE T.M.NADAF REGULAR FIRST APPEAL NO. 1814/2012 (PAR) BETWEEN: 1. SMT. INDIRAMMA SINCE DECEASED BY HER LRS 1(A) SMT. POORNIMA W/O SRI N M GANESH KUMAR AGED ABOUT 55 YEARS R/AT 237, 2ND CROSS HANUMANTHANAGAR, BANGALORE. 2. SMT. SHANTHAMMA SINCE DECEASED BY HER LRD 2(A) BHAGYALAKSHMI V.C. W/O SRI B.N. PRAKASH AGED ABOUT 47 YEARS R/AT C–203, KRISHNARAYA APARTMENTS NRI LAYOUT, 1ST MAIN RAMAMURTHYNAGAR, BANGALORE-16. 2(B) V.C.R. SUMANA W/O SRI N PRAKASH AGED ABOUT 44 YEARS R/AT 20, 2ND CROSS ADARSHNAGAR, NAGARBHAVI 1ST STAGE BANGALORE-72. …APPELLANTS (BY SRI. M D RAGHUNATH AND SRI P.S.SHAMEEL AHMED FOR A1 LRS. OF DECEASED A2) Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 AND: 1. SMT. V MAHALAKSHMI SINCE DECEASED R2 & R4 ARE LRS V/O DATED 18.11.2022 2. SMT. INDUMATHI AGED ABOUT 56 YEARS D/O LATE SRI CHANAPPA AND LATE SMT V. KAMALAMMA R/AT OUT HOUSE PORTION OF #6, G NO.14 STREET JOGYPALAYAM, ULSOOR BANGALORE 560 008. 3. SRI BALRAJ SINCE DECEASED BY LRS V/O DATED 26/11/2024 3(A) SMT. SHANKRAMMA AGED ABOUT 45 YEARS 3(B) SMT. KAMALAKSHI AGED ABOUT 23 YEARS 3(C) BANU AGED ABOUT 21 YEARS 3(D) YOGESHWARI AGED ABOUT 19 YEARS 3(E) MASTER HEMANTH MAJOR 3(A) BEING WIFE AND OTHERS BEING CHILDREN LATE SRI BALARAJ R/AT 36, 3RD CROSS, GAVIPURAM GUTTAHALLI, K.G. NAGAR BANGALORE-98. 4. SRI V CHANDRASEKHAR AGED ABOUT 56 YEARS - 3 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 S/O LATE SRI VENKATARAMANAPP R/AT OUT HOUSE PORTION OF PREMISES NO.6, G NO.14 STREET JOGUPALAYAM, ULSOOR BANGALORE -560 008. …RESPONDENTS (BY SRI. ROHIT V.R., ADV. FOR SMT. MEENAKSHY K NATESAN, ADV. FOR R4 SRI V ANAND, ADV. FOR R2 SRI A.G. RAVIKUMAR, ADV. FOR R3(A TO E) V/O DATED 18.11.2022 R1 IS DEAD, R2 & R4 ARE LRS.) THIS APPEAL IS FILED U/S 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 01.06.2012 PASSED IN O.S.NO.15878/2003 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.G.PANDIT) The defendants are in appeal under Section 96 of CPC questioning the correctness and legality of the judgment and decree dated 01.06.2012 in O.S.No.15878/2003 on the file of the XXVIII Additional City Civil Judge, Mayohall, Bengaluru (for short, ‘Trial Court’). - 4 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 2. The parties would be referred to as they stood before the Trial Court. The appellants were defendant Nos.1 and 2, whereas respondent No.1 was plaintiff and respondent Nos.2 to 4 were defendant Nos.3 to 5 before the Trial Court. 3. At the outset, learned counsel Sri.M.D.Raghunath for appellants would submit that the appellants restrict their prayer in the appeal only insofar as item No.5 of the suit schedule property. 4. The suit was one for partition and separate possession of 1/5th share in the suit schedule properties. The plaintiff and the husbands of defendant Nos.1, 2 and 5 respectively are the brothers and sisters of plaintiff. The defendant Nos.3 and 4 are the children of sister of plaintiff by name Smt.V.Kamalamma. The plaintiff and husbands of defendant Nos.1, 2 and 5 are the children of one late Venkataramanappa. Said Venkataramanappa inherited the suit schedule properties and the plaintiff and defendants - 5 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 are in joint possession and enjoyment of the suit schedule properties. 5. The defendant Nos.1 and 2 on appearance filed their written statement contending that item No.5 of the schedule property was self-acquired property of Late Venkataramanappa and certain other suit schedule properties are inherited. Further, it is contended that the plaintiff is not entitled for any share in the suit schedule properties and inasmuch as plaintiff is not entitled for 1/5th share in item No.1 of the property and also property bearing No.36, 3rd Cross, Gavipuram Guttahalli, K.G.Nagar, Bengaluru-98. 6. Based on the pleadings, the Trial Court formulated the following four issues: “1) Whether the plaintiff proves that the plaint schedule properties were the properties of her father late Venkataramanappa? - 6 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 2) Whether the plaintiff is entitled for 1/5th share in the schedule property? 3) Whether plaintiff is entitled for mesne profits? 4) What order or decree?” 7. The Trial Court answered issue Nos.1 and 2 partly in the Affirmative and it was ordered accordingly. 8. Before the Trial Court, plaintiff No.1 examined herself as PW1 apart from marking Ex.P1 to Ex.P9, whereas second defendant examined herself as DW1 and marked documents Ex.D1 to D3. 9. The Trial Court on appreciation of the material on record, passed the following order: “ORDER The suit of the plaintiff is decreed in part. The plaintiff is entitled for 1/5th share in the suit schedule item No.1 and 2 properties. The claim of the plaintiff in respect of suit schedule item Nos.3, 4 and 5 - 7 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 properties stand dismissed. Defendant Nos.1, 2 and 5 are entitled for their 1/5th share each in the suit schedule item Nos.1 and 2 properties. Defendant Nos.3 and 4 together are entitled for their 1/5th share in the suit schedule item Nos.1 and 2 properties. Draw the preliminary decree accordingly.” 10. Though the defendants are in appeal challenging the entire judgment and decree, when the matter was taken up for disposal, learned counsel for the appellants restricted the appeal only insofar as item No.5 of the suit schedule property i.e., item bearing No.36, 3rd Cross, Gavipuram Guttahalli, K.G.Nagar, Bengaluru-98. Learned counsel for the appellants would also submit that the appellants have filed I.A.No.1/2012 along with the appeal under Order 41 Rule 27 of CPC to permit the appellants to produce the latest katha extract in respect of - 8 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 suit schedule item No.5 i.e., bearing No.36, 3rd Cross, Gavipuram Guttahalli, K.G.Nagar, Bengaluru-98. 11. Heard learned counsel Sri.M.D.Raghunath for appellants, learned counsel Sri.V.Anand for respondent No.2, learned counsel Sri.A.G.Ravikumar for respondent Nos.3 (A to E) and learned counsel Sri.Rohit V.R., for Smt.Meenakshy.K. Natesan for respondent No.4. Perused the entire appeal papers. 12. Learned counsel for the appellants would submit that relationship between the plaintiffs and defendants are not in dispute and it is the case of the plaintiffs that the plaintiffs and defendants would be entitled for 1/5th share in the suit schedule properties. Insofar as suit item No.5 property is concerned, it is submitted that the Trial Court with an observation that records produced by the plaintiff fall short to disclose that item No.5 property was held by the family as joint family property and absolutely no material evidence is produced, - 9 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 rejected suit insofar as item No.5 is concerned. In the absence of such material evidence produced, the Trial Court held that the plaintiff has failed to prove that item No.5 is joint family property, to claim share in the said item No.5 property. 13. Learned counsel Sri.M.D.Raghunath would submit that the Katha extract produced along with I.A.No.1 would clearly demonstrate that the property i.e., Item No.5 of the suit schedule was standing in the name of the father of the plaintiff and defendants i.e., late Venkataramanappa, which would mean that item No.5 of suit schedule was joint family property and the parties to the suit were entitled for 1/5th share each in the suit property also. Further, learned counsel would submit that the final decree proceedings is pending in respect of the impugned judgment and decree and the parties may be directed to work out their remedy insofar as item No.5 of the schedule property is concerned in the final decree proceedings. Thus, learned counsel would pray for setting aside the impugned judgment and - 10 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 decree only insofar as item No.5 is concerned and relegate the parties to the FDP Court. 14. Per contra, learned counsel appearing for the respondent Nos.2 to 4 would submit that the plaintiff or the appellants failed to produce any document to show that item No.5 of schedule property is joint family property during the course of trial and it is submitted that at this belated stage, documents placed on record by filing Order 41 Rule 27 application shall not be entertained. 15. Having heard the learned counsel appearing for the parties and on perusal of the entire appeal papers, the only point which falls for our consideration is as to, Whether the impugned judgment and decree insofar as suit item No.5 requires interference and whether I.A.No.1/2012 filed under Order 41 Rule 27 of CPC requires to be allowed? 16. Answer to the above point would be in the Affirmative for the following reasons: - 11 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 There is no dispute in the relationship of the plaintiffs and defendants. The plaintiffs and husbands of defendant Nos.1, 2 and 5 as well as mother of defendant Nos.3 and 4 i.e., Smt.V.Kamalamma are the children of Late Venkataramanappa. On the death of Venkataramanappa, his children have succeeded to the properties left behind by him. It is the case of the plaintiffs and defendants that they are in joint possession and enjoyment of the suit schedule properties. In the present appeal, we are asked to decide only in respect of item No.5 of the suit schedule property, as the appellants have restricted their appeal only insofar as item No.5 of the schedule property is concerned. 17. The Trial Court insofar as item No.5 of the schedule property is concerned, rejected the suit only on the ground that no material is produced to establish that the said item No.5 was held by the joint family. In the absence of the material to establish that item No.5 property is joint family property, the Trial Court is justified - 12 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 in rejecting the suit insofar as item No.5 of the schedule property is concerned. However, the appellants/defendant Nos.1 and 2 have filed I.A.No.1/2012 along with the appeal under Order 41 Rule 27 of CPC to produce additional evidence i.e., Katha extract insofar as item No.5 of schedule property is concerned. A perusal of the document, Khatha extract in respect of property bearing No.36, 3rd Cross, Gavipuram Guttahalli, K.G.Nagar, Bengaluru-98, it indicates that the property was standing in the name of Sri.Venkataramanappa, father of appellants and husbands of defendant Nos.1, 2 and 5. The respondent Nos.2 to 4 have not disputed the document and they have also not disputed with regard to property standing in the name of Venkataramanappa, but the only objection raised by respondent Nos.2 to 4 is that the said document was not produced before the Trial Court and the document produced in the appeal belatedly cannot be entertained. - 13 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 18. In a suit for partition, when there is no dispute with regard to relationship and when no stranger is party to the suit, every party to the suit shall have to be considered as plaintiffs and it is for the Court to find out entitlement of share in the property. In other words, the Court shall have to decide the share of each party to the suit. 19. The appellants in the affidavit accompanying the application stated that the plaintiffs failed to produce the document and it is stated that they were ready to take a share in the suit schedule properties, but by oversight appellants could not produce the document insofar as item No.5 is concerned. 20. Order 41 Rule 27 of CPC provides for production of additional evidence before the Appellate Court. The Appellate Court could permit the parties to produce additional evidence, if the party producing additional evidence satisfies criteria stated in Order 41 Rule 27 of - 14 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 CPC. Under Order 41 Rule 27 CPC, additional evidence could be permitted to be produced in circumstances such as when the Court from which decree, the appeal is preferred has refused to admit evidence which ought to have been admitted; where the party producing the additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him; or if the Appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. 21. In the instant case, since the suit is one for partition, when the relationship between the parties is not in dispute, it would be appropriate for this Court to take additional evidence on record to pronounce judgment. If the additional document is permitted to be produced, it would assist the Court in coming to a just conclusion and - 15 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 to decide the entitlement of share among the parties to the suit. 22. In the above circumstances, the following: ORDER a) Appeal is partly allowed. b) Judgment and decree dated 01.06.2012 in O.S.No.15878/2003 on the file of the XXVIII Additional City Civil Judge, Mayohall, Bengaluru insofar as rejecting the claim of the parties insofar as item No.5 of the schedule property i.e., property bearing No.36, 3rd Cross, Gavipuram Guttahalli, K.G.Nagar, Bengaluru-98 is set aside. c) I.A.No.1/2012 is allowed, appellants are permitted to produce Katha extract in respect of item No.5 of the schedule property in the pending final decree - 16 - HC-KAR NC: 2025:KHC:25027-DB RFA No. 1814 of 2012 proceedings on the judgment and decree dated 01.06.2012 in O.S.No.15878/2003. d) The parties shall be entitled to lead their respective evidence insofar as item No.5 of the schedule property is concerned. e) Thereafter, the FDP Court shall decide the entitlement of share of the parties over item No.5 of the suit schedule property while disposing of the Final Decree Proceedings. Sd/- (S.G.PANDIT) JUDGE Sd/- (T.M.NADAF) JUDGE NC CT:bms List No.: 1 Sl No.: 16