- 1 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 07TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO. 5138 OF 2008 (PAR/POS) BETWEEN: 1. GANGARAMSING S/O RAJARAMSING YELIGAR AGE: 43 YEARS, OCC.: AGRICULTURE AND SERVICE, R/O KUKNOOR, YELBURGA TALUK, KOPPAL DISTRICT. 2. DHANSING S/O RAJARAMSING YELIGARA AGE: 37 YEARS, OCC.: AGRICULTURE AND SERVICE, R/O LINGASUGUR, RAICHUR DISTRICT. 3. TARABAI W/O BASAVANTHSING YELIGAR AGE: 32 YEARS, OCC.: AGRICULTURE AND HOUSEHOLD WORK R/O NIDASESI, KUSTAGI TALUK. 4. GAJASING S/O BASAVANTHSING AGE: 32 YEARS, OCC.: AGRICULTURE, MANJANNA E Digitally signed by MANJANNA E Date: 2025.01.09 10:23:14 +0530 - 2 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 R/O NIDASESI, KUSTAGI TALUK. …APPELLANTS (BY SRI. SURESH P HUDEDAGADDI, ADVOCATE AND SRI. A.S. PURAD, ADVOCATE FOR A2 & A4; V/O DATED 24.07.2023, APPEAL AGAINST A1 AND A3 STANDS ABATED) AND: 1. TUKARAMSING S/O LAXMANSING YELIGAR SINCE DECEASED BY LRS. 1(a). SUSHILABAI D/O TUKARAMSING YALIGAR AGE: 58 YEARS, OCC.: HOUSEOLD, R/O NIDASESI, KUSTAGI TALUK. 1(b) MANABAI D/O TUKARAMSING YALIGAR AGE: 40 YEARS, OCC.: HOUSEHOLD, R/O NIDASESI, KUSTAGI TALUK. …RESPONDENTS (BY SRI. IRANAGOUDA K. KABBUR, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGEMENT AND DECREE DATED 28TH JUNE, 2008 PASSED IN REGULAR APPEAL NO.66 OF 2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), KUSHTAGI, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED - 3 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 06TH NOVEMBER, 2006 PASSED IN ORIGINAL SUIT NO.128 OF 2003 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), KUSHTAGI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL 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) This Regular Second Appeal is preferred by the defendants challenging the judgment and decree dated 28th June, 2008 passed in Regular Appeal No.66 of 2006 on the file of the Civil Judge (Sr.Dn.), Kushtagi (for short, hereinafter referred to as ‘First Appellate Court’), confirming the judgment and decree dated 06th November, 2006 passed in Original Suit No.128 of 2003 on the file of the Civil Judge (Jr.Dn.), Kushtagi (for short, hereinafter referred to as ‘Trial Court’), wherein the suit filed by the plaintiffs came to be decreed. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their ranking before the Trial Court. - 4 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 3. It is the case of the plaintiffs that the father of the defendants 1 and 2 namely, Rajaram Sing and husband of the defendant No.3 namely, Basvanthsing are the brothers. It is pleaded that the suit schedule properties are the ancestral properties and the plaintiff-Tukaramsing had made a claim for division of joint family properties, however, the same was denied by the defendants and as such, the plaintiff had filed Original Suit No.128 of 2003 on the file of the Trial Court, seeking relief of partition and separate possession in respect of suit schedule properties. 4. On service of notice, defendants entered appearance and filed written statement, admitting the relationship between the parties. It is the specific case of the defendants that, there is already partition in the family and the suit schedule properties have been divided and record of rights have been mutated in their favour in respect of their individual share and as such, the defendants sought for dismissal of the suit. 5. Based on the pleadings on record, the Trial Court framed issues for its consideration. - 5 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 6. In order to establish their case, plaintiff was examined as PW1 and got marked 6 documents as Exhibits P1 to P6. On the other hand, defendants examined 3 witnesses as DW1 to DW3 and got marked 14 documents as Exhibits D1 to D14. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 06th November, 2006 decreed the suit of the plaintiff holding that the plaintiff is entitled for one-third share in the item Nos.1 to 5 and 7 of the suit schedule properties. Being aggrieved by the same, defendants preferred Regular Appeal No.66 of 2006 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record, by its judgment and decree dated 28th February, 2008, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved by the same, defendants preferred this Regular Second Appeal. 8. This Court, by order dated 06th September, 2012 framed the following substantial question of law: 1. Whether both the Courts below are justified in law in maintaining the suit filed by the respondent - 6 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 without seeking reopening of the partition and cancellation of entries in the record of rights? 2. Whether both the Courts below are justified in law, in not raising the proper presumptions as per Section 133 of the Karnataka Land Revenue Act in respect of the entries in the revenue records? 3. Whether both the Courts below are justified in law in not considering the documentary as well as the oral evidence adduced by the parties? 9. Heard Sri. Suresh P. Hudedagaddi and Sri. A.C. Purad, learned counsel appearing for appellants 2 and 4; and Sri. Iranagouda K. Kabbur, learned counsel appearing for respondents 1(a) and 1(b). 10. Learned counsel appearing for the appellants contended that, both the Courts below have not properly appreciated the entries made in the revenue records, which establish the fact that there was a prior partition in the family and therefore, the long standing entries in the revenue records ought to have been considered by both the Courts below in the right perspective. Accordingly, he sought for interference of this Court. - 7 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 11. Per contra, learned counsel appearing for respondents 1(a) and 1(b) sought to justify the impugned judgment and decree passed by both the Courts below. 12. In the light of submission made by learned counsel appearing for the parties, there is no dispute with regard to relationship between the parties. On careful examination of finding recorded by both the Courts below, the same would indicate that the defendants have failed to establish the prior partition said to have been taken place in the family through the cogent evidence and that apart, there is a discrepancy regarding the name of the father of defendant No.1 in the revenue records. Therefore, both the Courts below, on merits, assessed the evidence on record and rightly come to the conclusion that the defendants have failed to establish the prior partition taken place in the family. It is also pertinent to mention here that the DW1 has shown ignorance about the change of entries in the mutation record and the basis for change of entry in the revenue records. In that view of the matter, I am of the view that, both the Courts below having considered both oral and documentary evidence in right perspective, have decreed the suit of the plaintiff. Therefore, - 8 - NC: 2025:KHC-D:127 RSA NO.5138 OF 2008 the appellants have not made out a case for interference in the present appeal and failed to establish the case in the light of substantial question of law framed by this Court. Accordingly, Regular Second Appeal is dismissed. Sd/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 44