- 1 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1048 OF 2023 (PAR) BETWEEN: 1. SRI. CHANDRASHEKARAIAH S/O. LATE RUDRAIAH, AGED ABOUT 66 YEARS, AGRICULTURIST, R/O. TYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. &APPELLANT (BY SRI. SANTOSH R. NELKUDURI, ADVOCATE) AND: 1. SRI. GANGADHARAIAH S/O. LATE RUDRAIAH, AGED ABOUT 52 YEARS, AGRICULTURIST, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. 2. SMT. RATHNAMMA W/O. LATE PRAKASHAIAH, AGED ABOUT 51 YEARS, AGRICULTURIST, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 3. SMT. REKHA W/O. HALASWAMI, D/O. LATE PRAKASHAIAH, AGED ABOUT 27 YEARS, AGRICULTURIST, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. 4. SMT. GEETA W/O. THIPPESWAMI, D/O. LATE PRAKASHAIAH, AGED ABOUT 26 YEARS, AGRICULTURIST, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. 5. SRI. CHANDRASHEKARAIAH S/O. LATE PRAKASHAIAH, AGED ABOUT 25 YEARS, AGRICULTURIST, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. SMT. SHARANAMMA SINCE DEAD BY LRS. 6. SRI. THIPPESWAMY @ THIPPAIAH S/O. LATE RUDRAIAH, AGED ABOUT 45 YEARS, R/O. THYAVANAGI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. 7. SMT. BHAGYAMMA @ SOUBHAGYAMMA W/O. VIRUPAKSHAIAH, D/O. LATE RUDRAIAH, HOUSE WIFE, R/O. KATTALAGERE VILLAGE, - 3 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 213. 8. SMT. CHANDRAMMA W/O. SHANMUKAIAH, D/O. LATE RUDRAIAH, HOUSE HOLD, R/O. BASVANAHALLI VILALGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 213. SRI. NAGARAJAIAH DEAD BY LRS. 9. SINDU D/O. NAGARAJAIAH, AGED ABOUT 22 YEARS, R/O. ARBGATTA VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 217. 10. KAVYA D/O. NAGARAJAIAH, AGED ABOUT 20 YEARS, R/O. ARBGATTA VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 217. 11. ROOPA D/O. NAGARAJAIAH, AGED ABOUT 19 YEARS, R/O. ARBGATTA VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT-577 217. 12. SMT. LATHA W/O. MALLIKARJUNAIAH, AGED ABOUT 40 YEARS, HOUSE WIFE, CHANNAPURA VILLAGE, TARIKERE TALUK, CHIKKAMAGALURU-577 101. &RESPONDENTS (BY SRI. MUNIRAJA M., ADVOCATE) - 4 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.03.2023. PASSED IN R.A.NO.20/2022.ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.02.2022 PASSED IN O.S.NO.203/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant and also the learned counsel for the respondents. 2. This second appeal is filed against the concurrent finding. The factual matrix of case of the plaintiffs before the Trial Court that the suit schedule properties are their ancestral and joint family properties of the plaintiffs and defendants. The defendant No.2 took the specific defense that item No.1 of the suit schedule property is the self acquired property and defendant No.2 took the contention that written statement schedule properties are his joint family properties and suit is also - 5 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 barred by limitation and also took the specific contention that they are also entitled for partition of written statement schedule properties. The Trial Court having considered both oral and documentary evidence placed on record, accepted the case of the plaintiffs and particularly taken note of the admission on the part of D.W.1 in his cross-examination dated 03.09.2021, he has clearly stated that all the suit schedule Item No.1 of property originally belongs to Sri Veerabadreshwara temple inam land. During the life time of their father, he was cultivating the Item No.1 at the time of death of their father, joint family property was not divided. Further admitted that case pending in the land tribunal, they seek the signatures of all brothers because suit Item No.1 property as their joint family property and all his brothers have stated no objection to grant the land which was joint family property. Having considered this admission on the part of D.W.1, Trial Court comes to the conclusion that the claim of the defendant that it is a self acquired property is not - 6 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 accepted and also the admission of D.W.1 taken into note of and granted the relief of partition. The counter claim of defendant No.2 is dismissed and while apportioning the property, it was made it as 1/8th share each to the plaintiff No.1, Defendant No.2 to 5 and Defendant No.10 and plaintiff No.2 and 3 in jointly entitle 1/9th, defendant No.6 to 9 are jointly entitle for 1/9th share in all the suit schedule properties. 3. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.20/2022 before the First Appellate Court. The Appellate Court having considered the grounds urged in the appeal memo, even allowed the application I.A.No.2 for producing of medical records and also considering the material on record, comes to the conclusion that the material considered by the Trial Court is not perverse and based on the material, especially in the admission on the part of D.W.1 in the cross-examination. Item Nos.2 and 3 of plaint schedule properties are admittedly ancestral properties wherein - 7 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 both parties have mutual share and also in respect of Item No.1 is concerned, taken note of admission and eldest member of the family for the benefit of entire family, the same was granted and confirmed the judgment and also counter claim in respect of Item No.3 is concerned, not accepted the contention of the defendant and defendant No.2 has not placed any revenue record to show that this property is a joint family property. However, D.W.1 in the cross-examination admitted the counter claim schedule Item No.3 and suit schedule Item No.3 are one and the same. Hence, the Appellate Court confirmed the judgment of the Trial Court. 4. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant as against the concurrent finding that Courts below committed an error in allowing the suit even though it is barred under Article 10 of limitation Act. The counsel also would contend that the Appellate Court is not justified in - 8 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 confirming the judgment and decree of the Trial Court without assigning the reasons on I.A.No.2. The counsel also would vehemently contend that both Courts were not justified in granting the share to the plaintiffs without considering Ex.D.11. Apart from that the counsel also would submits that when the application I.A.No.2 is allowed, ought to have remitted the matter to the First Appellate Court to record the evidence and to consider the same. 5. Per contra, the counsel appearing for the respondents would vehemently contend that both the Trial Court and First Appellate Court taken note of both oral and documentary evidence available on record. Admittedly, the father was cultivating the property and property was granted earlier and subsequently when the re-grant was made, other family members have given consent. Hence, not committed any error in appreciating the facts as well as law. - 9 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 6. Having heard the learned counsel for the appellant and the learned counsel for the respondents, when the suit is filed for the relief of partition claming that suit schedule properties are joint family properties and particularly no dispute with regard to the Item No.2 and 3 properties are the joint family properties. The Trial Court also in paragraph No.27 taken note of admission on the part of D.W.1. He categorically admitted that all the Item No.1 suit schedule properties originally belongs to the temple and during the lifetime of their father, he was cultivating the Item No.1 and also further admission was given that when the case was pending in the Land Tribunal, all the brothers have given consent to transfer the property in favour of one of the member of the family and all these factors were taken note of by the Trial Court. No doubt the Appellate Court allowed the I.A.No.2 when the application is filed under Order 41 Rule 27 of CPC and the same is only in respect of the documents of defendant who had taken the treatment with regard to he was - 10 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 subjected to ear surgery. The counsel would contend that the admission that on account of there was a defect in his hearing problem and the said contention cannot be accepted in a second appeal. The Appellate Court also taken note of the admission on the part of D.W.1. It is not in dispute that father was cultivating the said property and subsequently, the property was allotted in favour of him being the member of the family. When such being the case, I do not find any error on the part of the Trial Court and the Appellate Court even in respect of Item No.1 is concerned, the same is cultivated by the father earlier and subsequently, one of the family member was allotted the same. When such material available on record and also admission on the part of D.W.1 that other family members have given their consent to allot the same and hence no perversity is found in the finding of the Trial Court as well as the Appellate Court and both factual aspects and question of law was considered by both the Courts. However, it is noticed that share is granted as 1/9th and - 11 - HC-KAR NC: 2025:KHC:50478 RSA No. 1048 of 2023 same has to be corrected as 1/8th since, the plaintiffs and defendants are the members of the same family and they are the brothers and sisters and hence the same is modified as 1/8th share and except this, there is no any modification in the order. Accordingly, the second appeal disposed of with the said observation. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 25