- 1 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100092 OF 2017 (PAR) BETWEEN: SHRI MAHADEVAPPA S/O. BEERAPPA YELLEMMI, @ DHARMASHALI, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI-590001. …APPELLANT (BY SRI. K. ANANDKUMAR, ADVOCATE) AND: 1. SMT. YALLAWWA W/O. HANAMANT HUKKERI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI-590001. 2. SMT. SIDDAWWA W/O. BEERAPPA YALLEMMI, @ DHARMASHALI, AGE: 69 YEARS, R/O: YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI-590001. 3. NAGAPPA S/O. BEERAPPA YELLEMMI, @ DHARMASHALI, AGE: 69 YEARS, OCC: HOUSEHOLD WORKS, R/O: YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI-590001. 4. DUNDAPPA S/O. BEERAPPA YELLEMMI, @ DHARMASHALI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: YARAGATTI, TAL: SAUNDATTI, DIST: BELAGAVI-590001. …RESPONDENTS (NOTICE TO R1 TO R4 SERVED) Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 10.06.2016 IN O.S.NO.76/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, SAUNDATTI, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed by the appellant challenging the judgment and preliminary decree dated 10.06.2016 passed in O.S.No.76/2014 by the learned Senior Civil Judge, Saundatti. 2. For convenience, the parties are referred to, as per their ranking before the trial court. The appellant was defendant No.3, respondent No.1 was the plaintiff and the other respondents were defendant Nos.1, 3 and 4. 3. Brief facts, leading rise to the filing of this regular first appeal are as under: - 3 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 The plaintiff filed the suit against the defendants seeking the relief of partition and separate possession regarding the suit schedule properties. It is the case of the plaintiff that, one Beerappa was the original propositus, he died on 15.05.1986 leaving behind his two wives, i.e., Savitravva @ Savakka who died on 31.10.2002. There are no children out of the wedlock of Smt.Savitravva and Beerappa. After the demise of Savitravva @ Savakka, Beerappa married Siddawwa. Plaintiff and defendant Nos.2 to 4 are the children born to Beerappa and Siddawwa. The suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.2 to 4. Defendant No.1 is the second wife of Beerappa. The plaintiff and defendant Nos.2 to 4 are the members of a Hindu undivided joint family. No partition has taken place between the plaintiff and the defendants. Defendant Nos.1 to 4 executed an unregistered relinquishment deed in favour of the plaintiff, regarding the land in Sy.Nos.144 and 143 of Yaragatti village. Based on the unregistered relinquishment deed, the name of the plaintiff was entered in the revenue - 4 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 records, as per M.R.No.H-5/2013-14 dated 02.07.2013. Defendant No.3 challenged the mutation entry before the Assistant Commissioner, Bailhongal. The said appeal is pending consideration. The plaintiff demanded for partition and separate possession. But the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file the suit for the relief of partition and separate possession. Accordingly, prays to decree the suit. 4. The trial court issued summons to the defendants. The defendants appeared through their respective counsels. Defendant Nos.1, 2 and 4 have not filed any written statement. Defendant No.3 alone filed a written statement. He admitted the genealogy furnished by the plaintiff and also admitted the death of Beerappa. It is contended that Sy.No.71/1 and 71/2 are the self- acquired properties of the original propositus, i.e., the deceased Beerappa, and Sy.No.143 was given by way of potagi and Sy.No.143 was purchased in the name of his first wife from Yallappa, under the registered sale deed. - 5 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 Defendant No.3 also admits that the appeal against M.R.No.H-5/2013-14 is preferred. Accordingly, prays to dismiss the suit against defendant No.3. 5. The trial court, based on the pleadings of the parties, framed the following issues. 1) Does the plaintiff proves the share in the suit properties? 2) Does the defendants prove that this court has no pecuniary jurisdiction to try the suit? 3) What decree or order? 6. The plaintiff to substantiate her case, examined herself as P.W.1 and marked 77 documents as Exs.P1 to P77. The defendants neither led any oral evidence nor produced any documents. The trial court, after recording the evidence of P.W.1, hearing on both sides and on assessment of oral and documentary evidence, answered issue No.1 in the affirmative, issue No.2 in the negative and issue No.3 as per the final order. The suit of the - 6 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 plaintiff was decreed. It is declared that the plaintiff is entitle for 1/5th share in the suit schedule properties by metes and bounds in the suit schedule properties by getting appointed an authenticated Civil Engineer/Tahasildar/concerned survey officials, whoever is convenient to them as Court Commissioner, under due process of law and procedure. Defendant No.3, aggrieved by the judgment and the preliminary decree passed in the said suit, filed this Regular First Appeal. 7. Heard the learned counsel for the defendant No.3. 8. Learned counsel for defendant No.3 submits that Sy.Nos.71/1 and 71/2 are the self-acquired properties and Beerappa had purchased the same from his own earnings. The trial court committed an error in awarding 1/5th share to the plaintiff. Hence, on these grounds, he prays to allow the appeal. 9. Heard, perused the records and considered the submissions of the learned counsel for the parties. - 7 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 10. The points that would arise for our consideration are; 1) Whether the plaintiff prove that the suit schedule properties are the joint family properties of the plaintiff and the defendants? 2) Whether defendant No.3 prove that the judgment and the preliminary decree passed by the trial court is perverse and arbitrary? 3) What order or decree? Point No.1. 11. It is the case of the plaintiff that, Beerappa was the original propositus. He had two wives, by name Savatrawwa @ Savakka and Siddawwa. From the perusal of the genealogy furnished by the plaintiff, it discloses that defendant No.1 died before the filing of the suit. Siddawwa is the second wife of Beerappa. Out of their wedlock, plaintiff and defendant Nos.2 to 4 are born. It is contended that the suit schedule properties are the ancestral properties of the plaintiff and the defendants. The plaintiff to prove that the suit schedule properties are the ancestral and the joint family properties of the plaintiff and - 8 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 defendant Nos.2 to 4 produced the documents. Exs.P1 to P13 are the record of rights of Sy.No.144. Exs.P14 to P27 are the RTC’s of Sy.No.71/1 for 1990 to 2015. Ex.P28 is the khata extract of Sy.No.143. Exs.P29 to P40 are the RTC’s of Sy.No.143. Ex.P41 is the khata extract of Sy.No.188. Exs.P42 to P55 are the record of rights of Sy.No.188 from 1965 to 2015. Ex.P56 is the khata extract of Sy.No.71/2 and 71/1. Exs.P57 to 68 are the RTC’s of Sy.No.71/2. Exs.P69 to 74 are the certified copies of M.E.NOs.2656, 1754, 2476, 5124, 2016 and 2015 respectively. Ex.P75 is the death certificate of Smt.Savakka. Ex.P76 is the certified copy of death certificate of Beerappa. Ex.P77 is the certified copy of MR No.H-5/2013-14. 12. All these documents clearly disclose that the suit schedule properties are the joint family properties of the plaintiff and the defendants. The defendants did not cross-examine P.W.1 and there is no rebuttal evidence. There is no dispute regarding the relationship between the - 9 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 parties to the suit. The trial court, considering the relationship and the nature of the suit schedule properties, has rightly held that the suit schedule properties are the joint family properties of the plaintiff and defendant Nos.2 to 4. The plaintiff and defendant Nos.2 to 4 are the members of a Hindu undivided joint family, and no partition is effected between the plaintiff and the defendants. In view of the above discussion, we answer point No.1 in the affirmative. Point No.2. 13. The defendant No.3 has filed a written statement, but did not cross-examine P.W.1 and has not lead any evidence. From the perusal of the records produced by the plaintiff, it clearly discloses that, the defendants did not cross-examine P.W.1, and the trial court, based on the records, has rightly passed the impugned judgment, and preliminary decree. After passing of the preliminary decree, the plaintiff initiated the final decree proceedings in FDP No.32/2016, and the final - 10 - NC: 2025:KHC-D:1587-DB RFA No. 100092 of 2017 decree was drawn vide judgment dated 26.03.2019. Hence, we do not find any error in the impugned judgment, and preliminary decree dated 10.06.2016 passed by the trial court. In view of the above discussion, we answer point No.2 in the negative. Point No.3. 14. In view of the above discussion, we proceed to pass the following; ORDER The Regular First Appeal is dismissed. The judgment and the preliminary decree dated 10.06.2016 passed in O.S.No.76/2014 by the learned Senior Civil Judge, Saundatti, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS Ct-cmu LIST NO.: 1 SL NO.: 20