- 1 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.5913 OF 2012 (PAR) C/W REGULAR SECOND APPEAL NO.5914 OF 2012 IN RSA.NO.5913/2012: BETWEEN: BHAGAWANT S/O. NAMDEV PATTAR, AGE: 60 YEARS, OCC: WELDING WORK, R/O: COLLEGE ROAD, MUDALGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. …APPELLANT (BY SRI. SHRIHARSH A NEELOPANT,ADVOCATE) AND: 1. IRAPPA S/O. NAMADEV PATTAR, AGE: 65 YEARS, OCC: AGRICULTURE AND CARPENTER, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 2. PRAKASH S/O. NAMADEV PATTAR, AGE: 47 YEARS, OCC: GOLDSMITH, R/O: SUNAGA – 587 120, TQ: BILAGI, DIST: BAGALKOT. 3. HANAMANT S/O. NAMADEV PATTAR, AGE: 43 YEARS, OCC: MILITARY SERVICE, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 4. GANGAWWA W/O. NAMADEV PATTAR, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O: COLLEGE ROAD, MUDALAGI, TQ: GOKAK, DIST: BELAGAVI – 591 312. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 5. AKKAWWA W/O. GANGAPPA PATTAR, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 6. SHARAWWA W/O. RAMACHANDRA BADIGER, SINCE DECEASED BY HER LRS. 6a. RAMACHANDRA S/O. GUNDAPPA BADIGER, AGE: 48 YEARS, OCC: CARPENTER, R/O: MANTOOR, TQ: MUDHOL, DIST: BAGALKOTE. 6B. SMT. HEEMA (YAMANAWWA) W/O. ASHOK BADIGER, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: KHANAGANV, TQ: GOKAK, DIST: BELAGAVI. 6C. MONESH S/O. RAMACHANDRA BADIGER, AGE: 42 YEARS, OCC: CARPENTER R/O: MANTOOR, TQ: MUDHOL, DIST: BAGALKOTE. 6D. GUNDU S/O. RAMACHANDRA BADIGER, AGE: 39 YEARS, OCC: CARPENTER R/O: MANTOOR, TQ: MUDHOL, DIST: BAGALKOTE. 6E. VITAL S/O. RAMACHANDRA BADIGER, AGE: 35 YEARS, OCC: CARPENTER R/O: MARADIMATH, TQ: GOKAK, DIST: BELAGAVI. 7. SHANTA W/O. NAGENDRA SUTAR, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: BADAGAV, TQ: GADHINGLAZ, DIST: BELAGAVI. 8. SMT. SARASWATI W/O. SUKHADEV SUTAR, AGE:45 YEARS, OCC: HOUSEHOLD WORK, R/O: BADAGAV, TQ: GADHINGLAZ, DIST: BELAGAVI. 9. SMT. INDIRA W/O. YACHARAPPA PATTAR, AGE: 43 YEARS, - 3 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 OCC: HOUSEHOLD WORK, R/O: SUREBAN – 591 127, TQ: RAMADURG, DIST: BELAGAVI. 10. SAVITRI W/O. RAMACHANDRA BADIGER, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: AWARGOL, TQ:HUKKERI, DIST: BELAGAVI. 11. BHARATI W/O. LAXMAN BADIGER, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O: YALLAPUR, TQ: HUKKERI, DIST: BELAGAVI. …RESPONDENTS (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE FOR R1; R2, R4 R6(A TO E), R7 TO R11 ARE SERVED; V.O DATED 8.10.2021 NOTICE TO R3 AND R5 ARE HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN R.A.NO.18/2007 DATED 16.07.2012 PASSED BY THE LEARNED 2ND ADDITIONAL SENIOR CIVIL JUDGE GOKAK INSOFAR AS NON ALLOTMENT OF SHARE TO THE PLAINTIFF OF SUIT A AND B SCHEDULE PROPERTIES. SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN O.S.NO.22/1997 DATED 19.01.2007 PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE (JR.DN) GOKAK INSOFAR AS NON ALLOTMENT OF SHARES TO THE PLAINTIFF SUIT A AND B SCHEDULE PROPERTIES AND ETD., IN RSA.NO.5914/2012: BETWEEN: BHARATI W/O. LAXMAN BADIGER, AGE: 39 YEARS, OCC: HOUSEHOLD WORK, R/O: YALLAPUR, TQ:HUKKERI, DIST: BELAGAVI. …APPELLANT (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) - 4 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 AND: 1. IRAPPA S/O. NAMADEV PATTAR, AGE: 65 YEARS, OCC: AGRICULTURE AND CARPENTER, R/O: COLLEGE ROAD, MUDALAGI, - 591 312 TQ: GOKAK, DIST: BELAGAVI. 2. PRAKASH S/O. NAMADEV PATTAR, AGE: 47 YEARS, OCC: GOLDSMITH, R/O: SUNAGA – 587 120, TQ: BILAGI, DIST: BAGALKOT. 3. HANAMANT S/O. NAMADEV PATTAR, AGE: 43 YEARS, OCC: MILITARY SERVICE, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 4. SMT. GANGAWWA W/O. NAMADEV PATTAR, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 5. SMT. AKKAWWA W/O. GANGAPPA PATTAR, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. 6. SMT. SHARAWWA W/O. RAMACHANDRA BADIGER, SINCE DECEASED BY HER LRS. 6a. RAMACHANDRA S/O. GUNDAPPA BADIGER, AGE: 48 YEARS, OCC: CARPENTER, R/O: MANTOOR, TQ: MUDHOL, DIST: BAGALKOTE. 6B. SMT. HEEMA (YAMANAWWA) W/O. ASHOK BADIGER, AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: KHANAGANV, TQ: GOKAK, DIST: BELAGAVI. 6C. MONESH S/O. RAMACHANDRA BADIGER, AGE: 42 YEARS, OCC: CARPENTER R/O: MANTOOR, TQ: MUDHOL, DIST: BAGALKOTE. 6D. GUNDU S/O. RAMACHANDRA BADIGER, AGE: 39 YEARS, OCC: CARPENTER R/O: MANTOOR, TQ: MUDHOL, - 5 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 DIST: BAGALKOTE. 6E. VITAL S/O. RAMACHANDRA BADIGER, AGE: 35 YEARS, OCC: CARPENTER R/O: MARADIMATH, TQ: GOKAK, DIST: BELAGAVI. 7. SMT. SHANTA W/O. NAGENDRA SUTAR, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: BADAGAV, TQ: GADHINGLAZ, DIST: KOHAPUR 416 502. 8. SMT. SARASWATI W/O. SUKHADEV SUTAR, AGE:45 YEARS, OCC: HOUSEHOLD WORK, R/O: BADAGAV, TQ: GADHINGLAZ, DIST: KOHAPUR 416 502. 9. SMT. INDIRA W/O. YACHARAPPA PATTAR, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, R/O: SUREBAN – 591 127, TQ: RAMADURG, DIST: BELAGAVI. 10. SAVITRI W/O. RAMACHANDRA BADIGER, AGE: 41 YEARS, OCC: HOUSEHOLD WORK, R/O: AWARGOL, TQ:HUKKERI – 591 309, DIST: BELAGAVI. 11. BHAGAWANT S/O. NAMDEV PATTAR, AGE: 60 YEARS, OCC: WELDING WORK, R/O: COLLEGE ROAD, MUDALAGI – 591 312, TQ: GOKAK, DIST: BELAGAVI. …RESPONDENTS (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE FOR R1; R2 TO R5, R6(A TO E), R7 TO R11 ARE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN R.A.NO.18/2007 DATED 16.07.2012 PASSED BY THE LEARNED 2ND ADDITIONAL SENIOR CIVIL JUDGE GOKAK INSOFAR AS NON ALLOTMENT OF SHARE TO THE PLAINTIFF OF SUIT A AND B SCHEDULE PROPERTIES. SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN O.S.NO.22/1997 DATED 19.01.2007 PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE (JR.DN) GOKAK INSOFAR AS NON ALLOTMENT OF SHARES TO THE PLAINTIFF SUIT A AND B SCHEDULE PROPERTIES AND ETD., - 6 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. These two appeals arise out of the judgment and decree dated 19.01.1997 passed in O.S. No.22/1997 on the file of the Additional Civil Judge (Jr. Dn.) Gokak, by which the said suit was decreed by granting 1/11th share to the plaintiff in the suit schedule C and D properties and defendant Nos.5 to 11 were also held to be entitled for 1/11th share each in the suit properties and the suit as regards, schedule A and B properties is dismissed. The said judgment and decree has been confirmed by the judgment and order dated 16.07.2012 passed in R.A.No.18/2007 on the file of II Additional Senior Civil Judge, Gokak, with the modification by excluding allotment of share in the suit C and D schedule properties to defendant No.6-Sharawwa. 2. Aggrieved by the aforesaid judgment and decree passed by the trial Court as well as the First - 7 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 Appellate Court, plaintiff and defendant No.11 are before this Court. 3. Suit schedule properties consist of following 4 items of properties: A. Open spare as well as huts constructed with reed tiles bearing TMC No.1098/A out of Sy No.496/1B situated at Mudalagi Tq: Gokak bounded as under: Towards East: Plot No.6 of Shivabasu Siddappa Magdum. Towards West: Plot No.6 Shivabasappa Firoji. Towards South: Plot No.9 of the same survey number. Towards North: Gokak Mudalagi Govt. Road of 15 feet belt of Sy. No.496/1B. B. Non-agricultural land to the extent of 2 guntas out of Sy.No,.498/3/B/2 situated at Mudalagi Tq;Gokak. Towards East: land of Ramappa Uttur. Towards West: N.A Land of suit property. Towards South: Govt. Road, Towards North: land of Ramppa kankanwadi C. House property situated at Hunshyhal P.Y village bearing GPC No.82 measuring 33.33 ft and another house property bearing GPC No.249. D. Landed house property situated within the limits of Bhairanhatti bearing Sy.no.82/4 measuring 0.20 guntas, Sy.No.81/4 measuring 0.30 guntas and Sy.No.81/8 measuring 3 acres 33 guntas. - 8 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 4. The case of the plaintiff is that one Namadev was the propositus. The said Namadev married to one Padamavati. Out of the said marriage, defendant No.1 and plaintiff were born. After the death of said Padmavati, Namadev married to one Laxmibai. Out of the said 2nd marriage, defendant Nos.2 and 6 were born. After the death of said laxmibai, Namadev married for the 3rd time to one Smt.Gangawwa-defendant No.4. Defendant No.3 was born out of the said 3rd marriage. 5. That said Namadev during his lifetime was managing the affairs of the family. Defendant No.1 being the eldest member of the joint family was looking after the family affairs and all the members of the family were residing together as a joint family. 6. Suit property bearing TMC No.1098/A was purchased in the name of defendant No.1 as manager of the family in terms of sale deed dated 20.07.1978 for valuable consideration of Rs.2,000/- from one Pavadeppa Shivabasappa Piroji. Similarly, suit property bearing - 9 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 Sy.No.498/3B/2 was also purchased in the name of defendant No.1 as manager of the joint family in terms of registered sale deed dated 26.11.1984 from one Hussensab Mohammadsab Bagwan for sale consideration of Rs.2,000/-. That ever since the date of purchase of the suit properties, plaintiff and the defendants became the joint owners enjoying the same as joint family members. There has been no partition between the plaintiff and the defendants. The plaintiff has got 1/5th share in the suit properties while defendant Nos.1 to 4 have got 4/5th share jointly in the suit properties. Since the request of the plaintiff was declined, filed suit for partition. The said suit was originally decreed on 03.02.2001 as against which defendant No.1 had preferred regular appeal in RA No.53/2001 before the Civil Judge Sr. Dn., Gokak, which was allowed and matter was remitted back to the trial Court for fresh disposal. After the remand, defendant No.1 had filed written statement. During the pendency of the suit, defendant No.5 to 11 got impleaded themselves as parties, defendant No.11 filed the written statement, - 10 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 which was adopted by defendant Nos.5 to 10. Defendant No.1 in his the written statement, disputed the genealogy as furnished by the plaintiff, so also the description of the suit property. Averments that defendant No.1 was managing the affairs of the family and was looking after the joint family affairs and that the suit properties were bought in the name of defendant No.1 out of the joint family funds are denied. It is contended that defendant No.1 started his carpentry work in the year 1968 at Bairanatti. Except defendant No.1 none of the family members were earning any money. At that time, father of the plaintiffs and the defendants had contracted 3rd marriage with defendant No.4. As the relationship of defendant No.1 with his father was not cordial after his 3rd marriage, he separated from the joint family in the year 1975. Plaintiff, his father and defendant No.2 to 4 were residing at Bairanatti village and enjoying the ancestral properties, while defendant No.1 was residing at Mudalagi. He purchased suit item A and B properties out of his income derived from working as Carpenter from - 11 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 Pavadeppa Shivabasappa Piroji and Hussainsab Mohammadsab Bagawan. Taking undue advantage of the ancestral properties standing in the name of the deceased father, the plaintiff has filed the suit claiming relief, even including the properties purchased by the defendant No.1. Hence, sought for dismissal of the suit. 7. Defendant No.11 in her written statement admitted the averments made in the plaint and claimed her share in all items of the suit schedule properties. Based on the pleading, the trial Court framed the following issues, additional issues and re-casted issues: i. Whether the plaintiff proves that the suit properties are in joint possession of plaintiff and defendants No.1 to 4 as joint family members? ii. Whether the plaintiff proves that the property acquired in the name of first defendant was thrown into the joint family hotch pot? iii. Whether the first defendant proves that the suit properties are his self acquired properties? iv. Whether the valuation and payment of court fee are not correct? v. To what reliefs? - 12 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 Additional Issues: i. Whether the defendants No.5 and 11 prove that they are also the joint family member of the plaintiff and defendants nos.1 and 4? ii. Whether the defendants No.5 and 11 are entitled for the share in the suit properties? Re-casted issues: i. Whether the plaintiff proves that the suit properties are joint family properties of plaintiff and defendants? ii. Whether the plaintiff proves that he is entitled for 1/5th share in the suit properties? 8. Plaintiff examined himself as PW.1. Two witnesses examined as PWs.2 and 3 and also marked 10 documents as Ex.P.1 to 10. Defendant No.1 examined himself as DW.1 and exhibited 28 documents marked at Ex.D.1 to D.28. Defendant Nos.5 to 11 have not stepped into witness box. 9. On appreciation of evidence and contentions of the parties, the trial Court answered recasted issue Nos.1 to 3 partly in the affirmative and additional Issue Nos.1 and 2 in the affirmative and consequently, decreed the suit by the impugned judgment and decree dated - 13 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 19.01.2007 as noted above, granting 1/11th share to the plaintiff and defendant Nos.5 to 11 only in C and D suit schedule properties, while dismissing the suit as regards item A and B of the suit schedule properties. 10. Being aggrieved by the same, plaintiff filed regular appeal in RA.No.18/2007. Along with the appeal he also filed application in I.A.No.II under Order VI Rule 17 of the CPC, seeking to insert details in paragraphs 1 and 7 of the plaint bringing on record purported existence of certain lands bearing (i) R.S.No.17/1 measuring 2 acres 18 guntas, (ii) R.S.No.18/3 measuring 1 acre 33 guntas, (iii) R.S.No.75/1 measuring 9 acres 2 guntas, (iv) R.S.No.75/2 measuring 4 acres 21 guntas, all situated at Soppadla village, contending that the said properties are the joint family properties left out for seeking partition and was sufficient enough to generate income to purchase suit A and B properties. 11. He also filed application in I.A.No.III under Order 41 Rule 27 of the CPC, seeking to produce RR - 14 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 extracts in respect of the aforesaid properties. Defendant No.11 also filed an application in I.A.No.IV under order VI Rule 17 of the CPC, seeking to amend written statement as sought to be done by the plaintiff, bringing on record the details of aforesaid properties. She also filed an application in I.A.No.III under 41 Rule 27 to produce revenue records pertaining the aforesaid properties. 12. Considering the grounds urged in the appeal memo and the aforesaid applications, the First Appellate Court framed following points for its consideration. 1) Whether the learned trial Court was justified in holding that the plaint-A Schedule property as well as the plaint-B Schedule property are the self-acquired properties of the defendant No.1? 2) Whether the plaintiff and the defendant No.11 are entitled for the relief of amendment of their pleadings in their plaint and written statement respectively as sought for in I.A. Nos. 2 and 4? 3) Whether the documents sought to be produced by the plaintiff under I.A.No.V under Order 41 Rule 27 of CPC in this appeal is required to be received to do justice between the parties? - 15 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 4) Whether the documents sought to be produced by the defendant No.11 under I.A. No. VIII under Order 41 Rule 27 of CPC in this appeal is required to be received to do justice between the parties? 5) Whether the proposed defendants No.12 to 25 are necessary parties to the suit? 6) Whether the case requires any further trial for which reason the case has to be remanded back to the learned trial Court? 7) Whether the impugned judgment and decree of the learned trial Court calls for any interference? 8) What decree or order? 13. On re-appreciation of evidence and contentions and submissions made by the parties, the First Appellate Court partly allowed the appeal and confirmed the judgment and decree passed by the trial Court rejecting the suit of the plaintiff in respect of suit item A and B. However, it modified the judgment and decree to the extent excluding the share of defendant No.6 Smt. Sharawwa in suit item C and D schedule properties, on the premise that she was not born to Namadev from the 2nd wife. - 16 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 14. Being aggrieved by the said aforesaid judgment and decree passed by the trial Court and the First Appellate Court, plaintiff is before this Court in regular second appeal in RSA No.5913/2012, while defendant No.11 is before this Court in RSA No.5914/2012. 15. Learned counsel for the appellant taking this Court extensively through the reasoning assigned by the trial Court and the First Appellate Court as well as the grounds urged in the appeal memorandum, vehemently submitted that the trial Court and the First Appellate Court have not appreciated the evidence led in by the parties more particularly the admission of defendant No.1 with regard to existence of the joint family properties being schedule C and D of suit properties. That once existence of joint family property is proved/admitted, it ought to have construed as the plaintiff having discharged initial burden of schedule A and B properties being the joint family properties. - 17 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 16. He submits that merely because the deeds of sale were executed in the name of defendant No.1, the trial Court and the First Appellate Court ought not to have held the said properties to be the self acquired property of defendant No.1. Particularly, when existence of joint family/nucleus had been established/admitted. 17. He submits the First Appellate Court erred in not allowing the applications filed in I.A.Nos.II & III filed by the plaintiff and I.A.Nos.V and VIII filed by the defendant No.11 permitting them to amend plaint written statement respectively and for production of documents in support of such amendment. He submitted that the said applications were allowed, the First Appellate Court would have come to a comprehensive conclusion regarding the existence of the other properties as well. 18. He submits that the judgment and decree passed the trial Court confirmed by the First Appellate Court, suffers from want of appreciation of evidence - 18 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 resulting in perversity. Hence, giving rise to substantial question of law to be considered by this Court. 19. Per contra, learned counsel for the defendant No.1 justifying the judgment and decree passed the trial Court confirmed by the First Appellate Court submits that admittedly, defendant No.1 had separated himself from the joint family in the year 1975 and was pursuing his occupation of carpentry work. He also submits plaintiff himself in the cross-examination admitted regarding defendant No.1 separating from the joint family and pursuing his own occupation, even during the lifetime of their father. As such, the contention of the plaintiff that the suit item A and B properties were purchased in the name of defendant No.1 from and out of the joint family funds is untenable. As regards non consideration of the applications filed by the plaintiff and defendant for amendment of plaint and written statement and for production of documents, learned counsel submit the plaintiff had initiated another proceedings O.S.No.22/1997 - 19 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 that to during the pendency of the present suit, which aspect of the matter has been taken note of the First Appellate Court while declining to allow the application. As such, he submits no substantial question of law would arise for consideration. Hence, seeks for dismissal appeals. 20. Heard learned counsel for the parties and perused the material available on records. 21. The trial Court and the First Appellate Court have proceeded to address the dispute between the parties rightly taking note of the position law namely that merely because of the existence of a joint family there cannot be a presumption of a joint family possessing joint family properties. That mere existence of joint family property would also not be sufficient, unless it is proved that the income derived from the joint family property/nucleus was sufficient enough to acquire the additional properties. 22. Facts narrated above indicate that Namadev had married to one Padmavathi about 40 years ago. - 20 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 Plaintiff and defendant No.1 were born out of the said marriage. After, the demise of Padmavathi, Namadev married for the 2nd time to one Laxmibai, from whom defendant Nos.2 and 6 were born. After, the demise of said Laxmibai, Namadev married for the 3rd time to one Gangawwa to whom defendant No.3 was born. Admittedly, suit item C and D are the joint family properties. The dispute is only with regard to item A and B properties. The case of the plaintiff is that even during the lifetime of Namadev, defendant No.1 being the eldest son was managing the family affairs. Their father, Namadev was carrying on his occupation of a goldsmith and from the income derived from his occupation, suit schedule A and B properties were purchased in the name of defendant No.1 far and on behalf of the joint family. 23. Contrary to this averments and assertion, defendant No.1 contended that his relationship with his father got strained after his 3rd marriage. As such, he started living separately from joint family as far back as in - 21 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 the year 1975. The joint family consisting of his father, plaintiff and other defendants stayed at Bairanatti and while defendant No.1 resided at Mudalagi. The distance between 2 villages about 15 kms. It is his case that he pursued his occupation of carpentry, while his father continued his occupation as a goldsmith. Out of his own earning from his occupation of carpentry, he purchased item A and B of suit schedule properties in terms of sale deeds of the years 1978 and 1984 from PWs.2 and 3 respectively. 24. The aforesaid facts being on record, plaintiff examined himself as PW.1, in his cross examination, admitted that prior to year 1978, he was residing along with his father in a rented house and his father was taking care of all the requirement of joint family including his and education of his sisters and their wedding expenses. He is also admitted that defendant No.1 started his occupation as Carpenter and potter, prior to his father contacting 3rd marriage. He also admitted that defendant No.1 at the - 22 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 relevant point of time was working as Carpenter. He has also admitted that his father was not having any income other than his occupation from being a goldsmith, whereas he admitted defendant No.1 is staying separately. 25. Thus, from the above deposition of the plaintiff, it is clear that the defendant No.1 had started his occupation as a Carpenter even during the life from his father, which is distinct and different from the occupation being carried by his father of a goldsmith. Therefore, the first requirement of income being generated from the family business used for purchase of Schedule A and B properties become improbable. That apart the plaintiff has not brought on record, the income that was being generated from suit schedule C and D properties. Nothing has been elicited to discredit the evidence of the DW.1 that he got himself separated from the joint family in the year 1975 after the marriage of their father for the 3rd time to one Gangawwa. - 23 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 26. In the light of the admission that their father did not have any income other than income from his avocation of goldsmith, the trial Court and the First Appellate Court have rightly come to the conclusion that mere existence of a joint family property in the nature of suit schedule B and C property was not sufficient to come to the conclusion that sufficient income was being generated for the purpose of purchase of schedule A and B properties. 27. Though plaintiff has examined vendors of schedule A and B properties, there is no documentary evidence brought on record to suggest sale consideration reflected in the deed of sale as per Ex.D.1 and D2 was paid from and out of the joint family funds. As rightly taken note of the trial Court and the First Appellate Court, the admitted fact of defendant No.1 having separated himself from the joint family in the year 1975 and carrying on his occupation of carpentry work and the father Namadev continue to take care of his family up till his - 24 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 demise in the year 1986 from the income derived from his occupation as a goldsmith, would also suggest there was no probability of he purchasing item A and B suit schedule properties in the name of defendant No.1. 28. The preponderance of probability, leaned in favour of the case put forth by defendant No.1 and in the absence of any legally acceptable evidence produced by the plaintiff, this Court do not find any reason to interfere with the judgment and conclusion arrived by the trial Court confirmed the First Appellate Court in rejecting the suit with regard to claim of the plaintiff and defendant No.11 in respect of suit item A and B properties are concerned. 29. As regards the contention of First Appellate Court declining to accept the interim applications filed by the plaintiff and defendant No.11 in I.A.Nos.II, III, and VIII are concerned as rightly appreciated by the First Appellate Court in paragraph No.40, the plaintiff has initiated separate independent proceedings in OS - 25 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 No.41/2009 on the file of Civil Judge, Ramdurg in respect of properties which are sought to be brought on record by way of amendment into the plaint in the present suit. It is submitted across the Bar that the said suit is still pending consideration, necessary also to note that the subsequent suit has been filed in the year 2009 while the present suit was filed in the year 1987 which was initially decreed by the judgement and decree dated 03.02.2001 and was set aside and matter was remanding for fresh consideration. On fresh consideration, the earlier suit has been decreed on 19.01.2007 and thereafter, appeal in RA No.18/2007 has been filed. Thus, during the pendency of these suits and the appeal, the plaintiff has chosen to file a separate suit. Nothing prevented the plaintiff or defendant No.11 to have brought on record the said properties in the present suit in OS No.22/1987. However, since, the plaintiff has opted to pursue an independent remedy by filing a separate suit in OS No.41/2009, which is stated to be still pending consideration, the First Appellate Court has rightly declined to accept the same on the premise that the Court - 26 - HC-KAR NC: 2025:KHC-D:7932 RSA No. 5913 of 2012 C/W RSA No. 5914 of 2012 should not permit additional evidence to fill in the lacuna or to patch up the weakness in the evidence of the parties before the Trial Court by permitting to lead additional evidence under Order XLI Rule 27 of CPC. 30. No error or irregularity can be found in the First Appellate Court rejecting the said applications filed by the plaintiff and defendant No.11 either. No substantial question of law would arise for consideration. 31. Accordingly, both the appeals are dismissed. The judgement and decree passed by the Trial Court and the first Appellate Court are confirmed. 32. In light of the dismissal of the appeals, pending applications, if any, are disposed off. Sd/- (M.G.S. KAMAL) JUDGE AC – para 1 to 19 SMM – para 20 to till end CT-ASC / List No.: 1 Sl No.: 2