- 1 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 30TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5147 OF 2009 C/W REGULAR SECOND APPEAL NO. 5146 OF 2009 IN REGULAR SECOND APPEAL NO. 5147 OF 2009 BETWEEN: 1. BASAPPA S/O JATTEPPA JOLAD (SINCE DECEASED BY HIS LR’S) 1A. SHANKRAVVA W/O. REVANASIDDAPPA SAMPANNI, AGE: 53 YEARS, OCC: HOUSEWIFE R/O. KURBAN ONI, HALLIKERI, DIST: GADAG 1B. RENUKA W/O. HANUMANTAPPA HANDI, AGE: 47 YEARS, OCC: HOUSEWIFE, R/O. ASHRAYA COLONY, MALASAMUDRA, DIST: GADAG. 1C. JAYAMMA JUTLANAVAR W/O. JANARDHANA, AGE: 39 YEARS, OCC: HOUSEWIFE, R/O. HESARUR, DIST: GADAG 2. HALAPPA S/O BASAPPA JOLAD, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 3. SHEKAPPA S/O BASAPPA JOLAD AGE: 38 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 MANJANNA E Digitally signed by MANJANNA E Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.01 11:43:11 +0530 - 2 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 4. JETTEPPA S/O BASAPPA JOLAD AGE: 34 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 …APPELLANTS (BY SRI. H. N. GULARADDI, ADV., FOR A1 (A TO C), SRI. S. S. PATIL, ADV., FOR A2 TO A4) AND: 1. SMT. GANGAWWA W/O MALLAPPA JOLAD, AGE: 65 YEARS, OCC: HOUSEWIFE & AGRICULTURE R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 2. PARASAPPA S/O MALLAPPA JOLAD AGE: 31 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 3. MANJAPPA S/O MALLAPPA JOLAD AGE: 29 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 4. GONEPPA S/O MALLAPPA JOLAD AGE: 26 YEARS, OCC: AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG-582118 …RESPONDENTS (BY SRI. F. V. PATIL, ADV., AND SRI. NANDISH PATIL, ADV.,) THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 27/11/2008 PASSED IN R.A.NO. 129/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN), GADAG, ALLOWING THE APPEAL & SETTING ASIDE THE JUDGMENT AND DECREE DATED 20/11/2001 PASSED IN O.S.NO. 216/1999 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), GADAG. - 3 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 IN REGULAR SECOND APPEAL NO. 5146 OF 2009 BETWEEN: 1. HALAPPA S/O. BASAPPA JOLAD, AGE: 40 YEARS, OCC. AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. 2. SHEKAPPA S/O. BASAPPA JOLAD, AGE: 38 YEARS, OCC. AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. 3. JATTEPPA S/O. BASAPPA JOLAD, AGE: 34 YEARS, OCC. AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. …APPELLANTS (BY SRI. S.S.PATIL AND SRI. H.N.GULARADDI, ADVOCATES) AND: 1. PARASAPPA S/O. MALLAPPA JOLAD, AGE: 40 YEARS, OCC. AGRICULTURE, R/O KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. 2. MANJAPPA S/O. MALLAPPA JOLAD, AGE: 29 YEARS, OCC. AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG. 3. GONEPPA S/O. MALLAPPA JOLAD, AGE: 26 YEARS, OCC. AGRICULTURE, R/O. KOTE STREET, MUNDARGI, TQ. MUNDARGI, DIST. GADAG …RESPONDENTS (BY SRI. F.V.PATIL AND SRI. NANDISH PATIL, ADVOCATES) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD. 27/11/2008 PASSED IN R.A.NO. - 4 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 130/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.), GADAG, ALLOWING THE APPEAL & SETTING ASIDE THE JUDGMENT AND DECREE DTD. 20/11/2001 PASSED IN O.S.NO. 201/1999 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), GADAG. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) These appeals are arising out of judgment and decree dated 27.11.2008 in R.A.No.129/2001 and R.A.No.130/2001, on the file of Additional Civil Judge (Sr.Dn.) Gadag (for short “the First Appellate Court”) allowing the appeal and setting aside the judgment and decree dated 20.11.2001 in O.S.No.201/199 and 216/1999 on the file of Principal Civil Judge (Jr.Dn.), Gadag, (for short “the Trial Court”) decreeing the suit in O.S.No.201/1999 and dismissing the suit in O.S.No.216/1999. 2. For the sake of convenience, parties are referred to as per their rank in O.S.No.216/1999. Plaintiff No.2 to 4 in O.S.216/1999 are defendants No. 1 to 3 in O.S.No.201/1999. - 5 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 3. It is the case of the plaintiffs in O.S.216/1999 that the suit schedule property bearing Sy.No.35/1 measuring 5 acres 2 guntas situate at Mundargi village, is measuring 3 acres 38 guntas instead of 5 acres 32 guntas. In order to understand the relation between the parties the genealogical tree is referred to as under: Bandappa (Died long back) Jatteppa (Dead) Goneppa (Dead) 1) Basappa 2) Shanirappa 3) Hanamappa (D-1) Sakrewwa (Wife) 1)Halappa 2)Shekappa 3)Jetteppa Gangawwa (daughter) (Plaintiff No.1) 1) Parasappa 2) Manjappa 3) Goneppa P-2 P-3 P-4 3.1. Perusal of the genealogical tree would indicate that the original propositus-Bandappa had two children namely Jatteppa and Goneppa. Jatteppa died leaving behind the - 6 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 defendant No.1-Basappa, Shanirappa and Hanamappa. Defendant No.2 to 4 are the children of defendant No.1. The second son of Bandappa i.e., Goneppa had a daughter Gangavva (plaintiff No.1) and having three children namely Parasappa (plaintiff No.2), Manjappa (plaintiff No.3) and Goneppa (plaintiff No.4). It is stated in the plaint that the land bearing Sy.No.35 was phoded into two strips as Survey No.35/1 measuring 5 acres 2 guntas and Sy.No.35/2 measuring 8 acres. During 1942, oral partition had taken place between the brothers namely Jatteppa and Goneppa (sons of Bandappa) in respect of the land bearing Sy.No.35, totally measuring 13 acres 2 guntas. It is further stated that the parties were put into possession pursuant to partition took place in the year 1942. It is the case of the plaintiffs that a survey settlement was made in respect of the Sy.No.35/1 wherein the land records shows that the suit land is measuring 3 acres 38 guntas instead of 5 acres 2 guntas and on the other hand, the land bearing Sy.No.35/2 belonged to the defendant is shown as 9 acres 4 guntas instead of 8 acres and as such, the plaintiffs have preferred O.S.No.216/1999 seeking relief of - 7 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 declaration with consequential relief of permanent injunction against the defendants. 3.2. It is the case of the plaintiffs in O.S.No201/1999 that the defendants are the children of Goneppa and they have not disputed the relationship. It is the case of the plaintiffs that there was a partition during the lifetime of Jatteppa and Goneappa and thereafter mutation was changed in respect of the subject matter of the property. It is further pleaded in the plaint that the defendants without any semblance of right interfered in the suit schedule property and as such, sought for declaration that the plaintiffs are the owner in possession of the entire extent of land in Sy.No.35/2 of Mundargi village. In that view of the matter the plaintiffs have sought for relief in O.S.No.201/1999. 3.3. After service of summons, respective defendants entered appearance and filed written statements as per the averments made therein. The Trial Court, after considering pleadings on record, clubbed the matters together and framed issues and additional issues accordingly. The parties adduced evidence and the Trial Court after considering the material on - 8 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 record, by its judgment and decree dated 20.11.2001, decreed the suit in O.S.No.201/1999 and dismissed the suit in O.S.No.216/1999. Feeling aggrieved by the same, R.A.No.129/2001 and R.A.No.130/2001 were filed by the respondents herein before the First Appellate Court. The appeals were resisted by the appellants herein. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 27.11.2008, allowed both the appeals and as such, the judgment and decree in O.S.No.201/1999 and O.S.No.216/1999 on the file of the Trial Court were set aside and as such, dismissed the suit in O.S.No.201/1999 and decreed the suit in O.S. No.216/1999. Feeling aggrieved by the same, the appellants have filed these two appeals. 4. This Court vide order dated 02.07.2009 framed the following: a) Whether the first appellate Court is justified in ignoring the continuous possession of the properties by the appellants herein since 1941 onwards? - 9 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 b) Whether the first appellate Court is justified in holding that the respondents have right over the properties in question particularly when there is no registered document executed in thief favour by Sakravva? 5. I have heard the Sri. S. S. Patil, learned counsel for appellant No.2 to 4 and Sri. Nandish Patil, learned counsel for the respondents. 6. Learned counsel for the appellant contended that the First Appellate Court has committed an error in considering the fact that Jatteppa and Goneppa had divided the property as per the partition held during 1942 and as such, the land bearing Sy.No.35/1 measuring 5 Acres 2 Guntas allotted to the share of Goneppa and the land bearing Sy.No.35/2, measuring 8 Acres was allotted to the share of Jatteppa and continuously the said arrangement was continued till the survey settlement was held wherein the measurement of the land was changed into 3 Acres 38 guntas in Survey No.35/1 and 9 Acres 4 Guntas in Survey No.35/2. In this regard, referring to the finding recorded by the First Appellate Court that the appellants herein have perfected their title by adverse possession and therefore, sought for interference of this Court. It is also the contention of - 10 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 the learned counsel appearing for the appellants that the First Appellate Court has committed an error in not considering the fact that Sakrevva (wife of Goneppa) has two daughters and they have not been made party in the proceedings and accordingly, it is contended that the exact measurement of the land in question has not been considered in the right perspective and as such, sought for interference of this Court. 7. Per contra, learned counsel appearing for the respondents sought to justify the impugned judgment and decree of the First Appellate Court. 8. In the light of the submissions made by the learned counsel appearing for the parties, it is not in dispute that originally the land bearing Sy.No.35 was measuring 13 Acre 2 Guntas and thereafter the land was phoded with two strips namely land bearing Sy.No.35/1 measuring 5 Acres 2 Guntas and land bearing Sy.No.35/2 measuring 8 Acres. It is also forthcoming from the records that a partition was taken place during the year 1942 wherein the land bearing Sy.No.35/1 measuring 5 Acres 2 Guntas had fallen to the share of Goneppa and the land bearing Sy.No.35/2 measuring 8 Acres fallen to - 11 - NC: 2025:KHC-D:1874 RSA No. 5147 of 2009 C/W RSA No. 5146 of 2009 the share of Jatteppa. The plea of adverse possession cannot be considered in a suit for partition where the parties are entitled for their respective share as per Section 6 and 8 of the Hindu Succession Act. In that view of the matter, I do not find any illegality or perversity in the judgment and decree passed by the First Appellate Court. The substantial question of law framed by this Court referred to above favours the respondents herein and accordingly, the impugned judgment and decree passed by the First Appellate Court is confirmed by dismissing both the appeals. 9. In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN List No.: 1 Sl No.: 42