- 1 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 08TH 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. 100120 OF 2019 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100351 OF 2018 IN RFA NO.100120 OF 2019 BETWEEN: SRI. DAYANANDAGOUDA S/O SHANKARAGOUDA PATIL AGE: 55 YEARS, OCC: AGRICULTURE, R/O: GARAG-581105, TQ & DIST: DHARWAD. …APPELLANT (BY SRI. CHETAN MUNNOLI, ADV) AND: 1. SMT. PARVATEVVA W/O SHANKARAGOUDA PATIL AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O: NO.68, SILVER ORCHARD, KELAGARI ROAD, DHARWAD-580001. 2. SRI. ANANDGOUDA S/O SHANKARAGOUDA PATIL AGE: 53 YEARS, OCC: PRIVATE WORK, R/O: NO.68, SILVER ORCHARD, KELAGARI ROAD, DHARWAD-580001. 3. SRI. ANIL @ ANILGOUDA S/O SHANKARAGOUDA PATIL AGE: 51 YEARS, OCC: AGRICULTURE, R/O: BASAVANAGAR BHAG - I, HALIYAL ROAD, DHARWAD-580003. 4. SMT. ARATI W/O SURESHGOUDA PATIL AGE: 48 YEARS, OCC: HOUSE HOLD WORK, Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 R/O: C/O. S.T. KATARAKI, NO.400, 8TH CROSS, 13TH MAIN, 1ST, IPH, MATHIKERE, BENGALURU-560054. 5. SRI. VIDATH S/O SURESHGOUDA PATIL AGE: 27 YEARS, OCC: PRIVATE WORK, R/O: C/O. S.T. KATARAKI, NO.400, 8TH CROSS, 13TH MAIN, 1ST, IPH, MATHIKERE, BENGALURU-560054. 6. SRI. FAKIRAPPA S/O DODDAKALLAPPA GALI AGE: 68 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI -580011, TQ & DIST: DHARWAD. …RESPONDENTS (BY SRIYUTHS. SHRIHARSH A NEELOPANT AND ARUN L NEELOPANT, ADVS FOR R3 & R6 NOTICE TO R1, R2, R4 & R5 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.06.2018 PASSED IN O.S.NO.520/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. IN RFA NO.100351 OF 2018 BETWEEN: SRI. DAYANANDAGOUDA S/O SHANKARAGOUDA PATIL AGE: 55 YEARS, OCC: AGRICULTURE, R/O: GARAG-581105, TQ & DIST: DHARWAD. …APPELLANT (BY SRI. CHETAN MUNNOLI, ADV) AND: 1. SMT. PARVATEVVA W/O SHANKARAGOUDA PATIL AGE: 73 YEARS, OCC: HOUSEHOLD WORK, R/O: NO.68, SILVER ORCHARD, KELAGARI ROAD, DHARWAD-580001. 2. SRI. ANANDGOUDA S/O SHANKARAGOUDA PATIL AGE: 53 YEARS, OCC: PRIVATE WORK, - 3 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 R/O: NO.68, SILVER ORCHARD, KELAGARI ROAD, DHARWAD-580001. 3. SRI. ANIL @ ANILGOUDA S/O SHANKARAGOUDA PATIL AGE: 51 YEARS, OCC: AGRICULTURE, R/O: BASAVANAGAR BHAG - I, HALIYAL ROAD, DHARWAD-580003. 4. SMT. ARATI W/O SURESHGOUDA PATIL AGE: 48 YEARS, OCC: HOUSE HOLD WORK, R/O: C/O. S.T. KATARAKI, NO.400, 8TH CROSS, 13TH MAIN, 1ST, IPH, MATHIKERE, BENGALURU-560054. 5. SRI. VIDATH S/O SURESHGOUDA PATIL AGE: 27 YEARS, OCC: PRIVATE WORK, R/O: C/O. S.T. KATARAKI, NO.400, 8TH CROSS, 13TH MAIN, 1ST, IPH, MATHIKERE, BENGALURU-560054. 6. SRI. FAKIRAPPA S/O DODDAKALLAPPA GALI AGE: 68 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI -580011, TQ & DIST: DHARWAD. …RESPONDENTS (BY SRI. SHRIHARSH A NEELOPANT, ADV FOR C/R6, SRI. ARUN L NEELOPANT, ADV FOR R3, R4 & R5, NOTICE TO R1 & R2 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.06.2018 PASSED IN O.S.NO.520/2015 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THESE APPEALS, COMING ON FOR FINAL HEARING, 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 - 4 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) These Regular First Appeals are filed challenging the judgment and decree dated 29.06.2018 passed in O.S.No.520/2015 by the learned II Additional Senior Civil Judge, Dharwad. 2. For convenience, the parties are referred to, as per their ranking before the trial court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal are as under: The plaintiff filed the suit against the defendants seeking the relief of partition and separate possession. It is the case of the plaintiff that, the original propositus Shankargouda Shivanagouda Patil died on 21.07.2008 leaving behind his wife and three sons, namely, defendant Nos.2 and 3 and another son Sureshgouda S.Patil, who died on 06.03.2011, leaving behind his wife and a son, i.e., defendant Nos.4 and 5. It is the case of the plaintiff - 5 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 that, the suit ‘A’ and ‘B’ schedule properties are the ancestral properties of the deceased Shankaragouda Patil, who inherited the same from his father, Shivanagouda. During his lifetime, Shankargouda Patil, to take benefit from the government, prepared ‘Apsat Vyavastha Patra’ on 25.10.2002, in respect of the suit schedule ‘A’ properties, bearing Block Nos.640, 75, 144/1, 144/2, 604 and 607. As per the said ‘Apsat Vyavastha Patra’, the names of the plaintiff and defendant Nos.1 to 5 came to be mutated, in the record of rights of the said properties, through M.E.No.5245 dated 26.11.2002. At the time of execution of the ‘Apsat Vyavastha Patra’ on 25.10.2002, all the properties of the family mentioned as the suit schedule ‘A’ and ‘B’ properties were not included and no partition was effected, in respect of the family properties. The other properties were kept in the name of Shankargouda Patil. After his demise, the names of the plaintiff and defendants came to be entered into the record of rights of the suit schedule properties. No partition is effected regarding Block Nos.638+639B, only based on the varadi given by - 6 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 some of the family members, M.R.No.H-112/2013-14 dated 18.09.2013 came into existence. The said land was converted into plots and the names of the plaintiff and defendant Nos.1 to 5 came to be mutated to the certain plot numbers of the said land. It is contended that, the father of the plaintiff had ½ share in suit ‘B’ schedule properties. After his demise, the plaintiff and defendant Nos.1 to 5 are entitled to get a ½ share of Shankargouda in the suit ‘B’ schedule properties. It is contended that, defendant Nos.4 and 5 taking advantage of the entries in their names, sold Block No.144/1, measuring 9 acres 11 guntas, in favour of defendant No.6 for valuable consideration of Rs.38,00,000/-. Since the consent of the plaintiff was not obtained while alienating the said property, the sale deed executed by defendant Nos.4 and 5 in favour of defendant No.6, is not binding on the plaintiff. The plaintiff requested the defendants to effect partition, but the defendants refused to effect partition. Hence, a cause of action arose for the plaintiff to file the - 7 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 suit for the relief of the partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant Nos.1 to 5 filed a separate written statement with the counter claim, by denying the averments made in the plaint. Defendant Nos.1 to 5 have admitted the relationship between the plaintiff and defendant Nos.1 to 5. The existence of the suit properties has been admitted by the defendants. It is denied that, the suit schedule properties are the ancestral and joint family properties of the family, as on the date of the suit. It is contended that, during the lifetime of Shankargouda, on 25.10.2002, he executed the partition deed, and based on the partition deed, the names of the plaintiff and the defendants were mutated in the revenue records. In the said partition, the suit Block No.144/1 measuring 9 acres 11 guntas fell to the share of the elder son of Shankargouda by name, Sureshgouda. Sureshgouda died, leaving behind his wife and son, i.e., defendant Nos.4 and 5. They succeeded to the suit property. They sold Block - 8 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 No.144/1 in favour of defendant No.6 on 18.09.2015 for family and legal necessity. Defendant Nos.4 and 5 delivered Block No.144/1 in favour of defendant No.6. As per the registered partition deed dated 18.09.2013, certain plots have been allotted to their respective shares. It is contended that, the partition was effected in respect of the suit schedule ‘A’ Sl.Nos.1 to 5 and 9 to 37 properties, while the suit schedule ‘A’ Sl.Nos.6 to 8 properties remained intact. No partition is effected in respect of the suit schedule ‘A’ Sl.Nos.6 to 8 properties and the said properties are available for partition. Defendant Nos.1 to 5 are entitled to a share in suit schedule ‘A’ Sl.Nos.6 to 8 properties, and also claim a share in ‘B’ schedule properties, and accordingly, prays to dismiss the suit of the plaintiff in respect of the other properties. 5. The plaintiff filed a written statement to the counter claim stating that, based on the ‘Apsat Vyavastha Patra’ dated 25.10.2002, the deceased Sureshgouda did - 9 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 not hold valid title over the properties bearing Block No.144/1. Therefore, defendant Nos.4 and 5 never acquired the title over the said property and had no right to alienate the said property in favour of defendant No.6. It is contended that, Block Nos.638 and 639B were not included in the ‘Apsat Vyavastha Patra’. The partition held on 09.07.2013 and 03.08.2013 did not include all the family properties. Hence, prays to dismiss the counter claim and decree the suit of the plaintiff. 6. Defendant No.6 filed a written statement reiterating the contents of the written statement filed by defendant Nos.1 to 5, and contended that, he is the bonafide purchaser of Block No.144/1 from defendant Nos.4 and 5. Hence, prays to dismiss the suit. 7. The trial court, based on the aforesaid pleadings, framed the following issues; : ISSUES : 1. Whether the plaintiff proves that suit properties are ancestral properties of himself and defendants No.1 to 6? - 10 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 2. Whether the defendants prove that during the lifetime of the propositus Shankaragouda partition effected with respect to the suit properties bearing Block No.75, 144/1, 144/2, 604 and 607 by metes and bounds and in the said partition the property Block No.144/1 had fallen to the share of the husband of the defendant No.4 and father of the defendant No.5 deceased Sureshgouda Patil? 3. Whether the defendants No.1 to 5 prove that Registered partition taken place on 9.7.2013 between the plaintiff and defendants No.1 to 5 in respect of Sl.No.9 to 13 of suit 'A' schedule properties? 4. Whether the defendants No. 1 to 5 prove that suit schedule 'A' Sl.No.6 to 8 and suit schedule 'B' Sl.No.1 to 4 properties only available for partition? 5. Whether the plaintiff is entitled for share in the suit properties? If so, what is the quantum of the share of the plaintiff? 6. Whether the plaintiff proves that suit property Block No.144/1 sold by the defendants No.4 and 5 in favour of the defendant No.6 is not binding on the share of the plaintiff? 7. What order or decree? 8. The plaintiff to substantiate his case, examined himself as P.W.1, examined two witnesses as P.Ws.2 and 3, and marked 47 documents as Exs.P1 to P47. In rebuttal, defendant No.3 was examined as D.W.1 and marked one document as Ex.D1. The trial court, after recording the evidence, on hearing both sides, and on the - 11 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 assessment of oral and documentary evidence, answered issue Nos.1 and 6 in the negative, issue Nos.2 to 4 in the affirmative, issue No.5 partly in the affirmative, and issue No.7 as per the final order. The suit of the plaintiff was decreed in part. The counter claim of defendant Nos.1 to 5 is decreed. It is declared that, the plaintiff and defendant Nos.1 to 3 are entitled to 1/5th share each, while defendant Nos.4 and 5 are entitled to 1/5th share together in suit schedule ‘A’ Sl.Nos.6 to 8 properties and the suit schedule ‘B’ Sl.Nos.1 to 4 properties. The claim of the plaintiff regarding the other suit ‘A’ schedule properties is dismissed. The plaintiff, aggrieved by the dismissal of the suit regarding the suit ‘A’ schedule properties and the decree of the counter claim of defendant Nos.1 to 5, filed these appeals. 9. Heard the learned counsel for the plaintiff and the learned counsel for the defendants. 10. The learned counsel for the plaintiff submitted that, the trial court committed an error in answering issue - 12 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 No.2 in the affirmative, when defendant Nos.1 to 5 failed to prove the alleged partition in respect of the suit properties bearing Block Nos.75, 144/1, 144/2, 604 and 607 of Garag village, by producing partition deed alleged to have been entered into between the propositus Shankargouda with his sons. He also submits that, the trial court committed an error in holding that, the ‘Apsat Vyavastha Patra’, in respect of the suit schedule ‘A’ Sl.Nos.1 to 5 properties, as an outright final partition and the same is legal and valid. He also submits that, the trial court held that Ex.P42-mutation entry was effected only based on the ‘Apsat Vyavastha Patra’, and not based on the outright final partition, as contended by the defendants. He also submits that, the trial court committed an error in answering issue No.3 in the affirmative, holding that the registered partition deed dated 09.07.2013 in respect of the properties described at Sl.Nos.9 to 13 of suit schedule ‘A’ properties is valid and legal. He also submits that, the trial court has not properly appreciated the material placed on record. He submits - 13 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 that, the trial court committed an error in decreeing the counter claim of defendant Nos.1 to 5. Hence, on these grounds, he prays to allow the appeals. 11. Per contra, the learned counsel for defendant Nos.3 and 5 supports the impugned judgment and decree. He submits that, Shankargouda effected the partition in respect of the suit properties bearing Block No.75, 144/1, 144/2, 604 and 607 by metes and bounds, and in the said partition, Block No.144/1 was allotted to the share of the husband of defendant No.4, and the father of defendant No.5, i.e., Sureshgouda. After the demise of Sureshgouda, defendant Nos.4 and 5 have succeeded to the properties, i.e., Block No.144/1 and have sold the said property in favour of defendant No.6 for valid consideration. He submits that, there was a partition between defendant Nos.1 to 5 and the plaintiff on 09.07.2013, and the said partition was reduced into writing, and it was registered on 09.07.2013. Hence, there is no severance and the suit filed by the plaintiff is not maintainable. He also submits - 14 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 that, the suit schedule ‘A’ Sl.Nos.6 to 8 properties were kept intact and no partition was effected and defendant Nos.1 to 5 are entitled to their respective shares in the suit schedule ‘A’ Sl.Nos.6 to 8 properties. He submits that, the trial court was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeals. 12. Perused the records and considered the submissions of the learned counsel for the parties. 13. The points, that would arise for our consideration are; 1) Whether the plaintiff proves that, the suit schedule ‘A’ Sl.Nos.6 to 8 properties and suit schedule ‘B’ Sl.Nos.1 to 4 properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 5? 2) Whether the defendants prove that, there was a prior partition effected during the lifetime of - 15 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 Shankargouda Patil with respect to the properties bearing Block No.75, 144/1, 144/2, 604 and 607? 3) Whether defendant Nos.1 to 5 prove that, the suit schedule ‘A’ Sl.Nos.6 to 8 and suit schedule ‘B’ Sl.Nos.1 to 4 properties are available for partition? 4) Whether the plaintiff proves that the judgment and decree passed by the trial court is arbitrary and erroneous? 5) What order or decree? Point Nos.1 and 2. 14. Points Nos.1 and 2 are taken up together for common discussion to avoid repetition of facts. 15. It is the case of the plaintiff that, one Shankargouda Shivanagouda Patil was the propositus, who died on 21.07.2008, leaving behind his wife and three sons, i.e., defendant Nos.2 and 3, and another son - 16 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 Sureshgouda, who died on 06.03.2011. Defendant Nos.4 and 5 are the wife and son of deceased Sureshgouda. It is the case of the plaintiff that, the suit schedule ‘A’ and ‘B’ properties are the ancestral and joint family properties of the deceased Shankargouda, who inherited the suit schedule properties from his father, Shivanagouda. During his lifetime, to take the benefits from the government, prepared the ‘Apsat Vyavastha Patra’ on 25.10.2002 regarding suit schedule ‘A’ properties. As per the ‘Apsat Vyavastha Patra’, the names of the plaintiff and defendant Nos.1 to 5 came to be mutated in the revenue records, through mutation. In the said partition, all the properties of the family mentioned as suit schedule ‘A’ and ‘B’ properties were not included and no partition is effected in suit schedule ‘A’ and ‘B’ properties. It is contended that, the plaintiff and the defendants are the members of a Hindu undivided joint family. The plaintiff demanded for partition and separate possession. The defendants refused to effect partition. - 17 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 16. To substantiate his case, the plaintiff was examined himself as P.W.1 and reiterated the plaint averments in his examination-in-chief. He has also produced documents. Ex.P1 is the RTC extract in respect of the land bearing Sy.No.75, standing in the name of the plaintiff. Ex.P2 is the RTC extract regarding the land bearing Sy.No.144/1, standing in the name of defendant Nos.4 and 5. Ex.P3 is the RTC extract regarding the land bearing Sy.No.144/2, standing in the name of defendant No.2. Ex.P4 is the RTC extract regarding the land bearing Sy.No.604, standing in the name of defendant No.3. Ex.P5 is the RTC extract regarding the land bearing Sy.No.607, standing in the name of defendant No.3. Ex.P6 is the RTC extract regarding the land bearing Sy.No.363, standing in the name of the plaintiff and defendant Nos.1 to 5. Exs.P7 to P19 are the RTC extract regarding the land bearing Sy.Nos.634, 473 and 638+638B, standing in the name of the plaintiff and defendant Nos.1 to 5. Ex.P20 is the RTC extract in respect of the land bearing Sy.No.638+639B, standing in the name of the plaintiff. Ex.P21 is the RTC - 18 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 extract regarding the land bearing Sy.No.638+639B, standing in the name of the plaintiff and defendant Nos.1 to 5. Ex.P22 is the RTC extract regarding the land bearing Sy.No.638+639B, standing in the name of the plaintiff. Exs.P23 to 26 are the RTC extract regarding the land bearing Sy.No.638+639B, standing in the name of the plaintiff and defendant Nos.1 to 5. Exs.P27 to 30 are the RTC extract regarding the land bearing Sy.No.638+639B, standing in the name of the plaintiff and defendant Nos.1 to 3. Exs.P31, 32, 34, 36 and 37 are the RTC extract regarding the land bearing Sy.No.638+639B, standing in the name of the plaintiff and defendant Nos.1 to 5. Exs.P33 and 35 are the RTC extract regarding the land bearing Sy.No.638+639B, standing in the name of defendant No.3. Exs.P38 to 41 are the property extracts. Exs.P42 to 44 are the M.R.No.5245, H-112/13-14 and 66/2011-12. Ex.P45 is the certified copy of the sale deed dated 18.09.2015, executed by defendant Nos.4 and 5 in favour of defendant No.6. Ex.P46 is the death certificate of - 19 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 Shankargouda, who died on 21.07.2008. Ex.P47 is the death certificate of Suresh, who died on 06.03.2011. 17. During the course of cross-examination, P.W.1 has admitted that, the partition was effected between himself and defendant Nos.1 to 5, regarding suit schedule ‘A’ properties as per Ex.D1. From the perusal of Ex.D1, it discloses that the said partition deed was executed between the plaintiff and defendant Nos.1 to 5 on 09.07.2013, regarding the plots formed in Block Nos.638+639B. Though, there was a partition effected between the plaintiff and defendant Nos.1 to 5, as per Ex.D1, the plaintiff has suppressed the partition effected between the plaintiff and defendant Nos.1 to 5 regarding Block Nos.638+639B. It is elicited that, after forming plots in the said property, the partition was effected between the plaintiff and defendant Nos.1 to 5, as per Ex.D1. In the said partition, certain plots were allotted to the parties to the partition deed and based on the Ex.D1, the mutation was effected and the names of the plaintiff and the - 20 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 defendants were entered in the revenue records. Hence, block Nos.638+639B is no longer the joint family property of the plaintiff and the defendants. Plaintiff has produced a certified copy of the mutation extract, marked as Ex.P42, which discloses that, as per the ‘Apsat Vyavastha Patra’, the names of Shankargouda Patil and his sons, i.e., plaintiff and defendant Nos.2 and 3, and the deceased Sureshgouda were came to be mutated in the revenue records, to the properties allotted to their respective shares. The properties, i.e., suit schedule ‘A’ Sl.Nos.1 to 5 properties were subject to partition and Block No.75 measuring 8 acres 26 guntas fell to the share of the plaintiff. The plaintiff has not challenged the revenue entries effected based on Ex.P42. 18. The plaintiff to prove his case, examined two witnesses as P.Ws.2 and 3, who deposed that, the plaintiff and defendant Nos.1 to 5 are members of a Hindu undivided joint family. No partition is effected between the plaintiff and defendant Nos.1 to 5 regarding the suit - 21 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 schedule properties. P.W.2 deposed that, he was present along with one Gangayya Hiremath and Basappa Baraki, at the time of the mutual partition deed. In the course of cross-examination, P.W.2 admitted that in 2002, i.e., during the lifetime of Shankargaouda, an oral partition was effected in the family, and based on the oral partition, the parties have obtained a loan on the properties, fallen to their respective shares. Further, the parties have acted upon the mutual partition in 2002. Further, P.W.3 has deposed in the same terms of P.W.2. But, in the cross- examination, he admitted that, he did not participate in the partition held in the family of the plaintiff and defendant Nos.1 to 5, and he has no knowledge about their family partition. 19. The evidence of P.Ws.2 and 3 does not support the case of the plaintiff. Thus, the documents produced by the plaintiff clearly show that, suit schedule ‘A’ Sl.Nos.6 to 8 properties and the suit schedule ‘B’ Sl.Nos.1 to 4 properties are ancestral properties of the plaintiff and - 22 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 defendant Nos.1 to 5. Insofar as other properties are concerned, there was a partition effected between the plaintiffs and defendant Nos.1 to 5, and the said properties are not the ancestral properties of the plaintiffs and defendant Nos.1 to 5, as on the date of filing of the suit. 20. The plaintiff and the defendants have admitted that, there was a partition in 2002, which discloses that, there was a partition between the plaintiff and defendant Nos.1 to 5 in respect of suit schedule ‘A’ properties bearing Block No.75, 144/1, 144/2, 604 and 607. In the said partition, Block No.144/1 had fallen to the share of Sureshgouda, i.e., husband of defendant No.4 and father of defendant No.5. There was also a partition between the plaintiff and defendant Nos.1 to 5 in respect of suit schedule ‘A’ Sl.Nos.9 to 13 properties and based on the partition, mutation was effected. The said oral partition was effected on 25.10.2002. The plaintiff did not challenge the partition effected on 25.10.2002 and the plaintiff has admitted the partition effected on 25.10.2002. In view of - 23 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 the admission of P.Ws.1 to 3, defendant Nos.1 to 5 have proved that, there was a mutual partition between the plaintiff and defendant Nos.1 to 5 on 25.10.2002, and in the said partition, Block No.144/1 was fallen to the share of Sureshgouda, i.e., husband of defendant No.4 and father of defendant No.5. 21. The Hon’ble Apex Court in the case of Digambar Adhar Patil vs Devram Giridhar Patil (died) and Another reported in 1995 Supp (2) SCC 428, held that, the entries in the record of rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the respondent and his brother to prove the factum of partition. In the instant case, the plaintiff has produced Ex.P42, which discloses that, there was a partition between the plaintiff and defendant Nos.1 to 5 in 2002 and based on the partition, the mutation was effected, and the names of the parties are entered in the - 24 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 record of rights. Hence, it proves that there was a prior partition between the plaintiff and defendant Nos.1 to 5. 22. In view of the above discussion, we answer point Nos.1 and 2 in the affirmative, holding that suit schedule ‘A’ Sl.Nos.6 to 8 properties and the suit schedule ‘B’ Sl.Nos.1 to 4 properties are the ancestral properties of the plaintiff and defendant Nos.1 to 5. Point No.3. 23. There was a partition effected between the plaintiff and defendant Nos.1 to 5, the said partition was reduced into writing and the same was registered on 09.07.2013. The defendants have produced Ex.D1, the certified copy of the registered partition deed dated 09.07.2013, which discloses that, the partition was effected between the plaintiff and defendant Nos.1 to 5, in respect of suit schedule ‘A’ Sl.Nos.9 to 13 properties. 24. Defendant No.3 was examined as D.W.1 and he reiterated the written statement averments in his - 25 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 examination-in-chief and contended that, the suit schedule ‘A’ Sl.Nos.6 to 8 properties and suit schedule ‘B’ Sl.Nos.1 to 4 properties are the ancestral properties of the plaintiff and defendant Nos.1 to 5. No partition is effected in the aforesaid properties. The said properties are available for partition. Neither of the parties has produced any records to show that the partition was effected between the plaintiff and defendant Nos.1 to 5, in respect of the suit schedule ‘A’ Sl.Nos.6 to 8 properties and suit schedule ‘B’ Sl.Nos.1 to 4 properties. Admittedly, both parties are claiming partition in the suit schedule ‘A’ Sl.Nos.6 to 8 properties and suit schedule ‘B’ Sl.Nos.1 to 4 properties. There was no partition regarding the said properties. The said properties are available for partition. 25. Defendant Nos.1 to 5 have filed the counter claim in respect of the suit schedule ‘A’ Sl.Nos.6 to 8 properties and suit schedule ‘B’ Sl.Nos.1 to 4 properties. The said properties have the characteristic of a joint family properties, as on the date of filing of the suit. The plaintiff - 26 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 and defendant Nos.1 to 5 are entitled to partition and separate possession in respect of the aforesaid properties. In view of the above discussion, we answer point No.3 in the affirmative. Point No.4. 26. The trial court considered the admission of P.Ws.1 to 3 that, there was a mutual partition in 2002, during the lifetime of the original propositus Shankargouda Patil and that, there was a partition between the plaintiff and defendant Nos.1 to 5, in respect of the suit schedule ‘A’ Sl.Nos.9 to 13 properties, which is marked as Ex.D1. Further, as per the partition effected in 2002, Block No.144/1 was allotted to the share of Sureshgouda. After his demise, the property was transferred in the name of defendant Nos.4 and 5 and defendant Nos.4 and 5 have sold Block No.144/1 in favour of defendant No.6. Defendant No.6 is the bonafide purchaser. The trial court was justified in passing the impugned judgment. We do not find any error in the judgment and preliminary decree - 27 - NC: 2025:KHC-D:1229-DB RFA No. 100120 of 2019 C/W RFA No. 100351 of 2018 passed by the trial court. In view of the above discussion, we answer point No.4 in the negative. Point No.5. 27. In view of the above discussion, we proceed to pass the following; ORDER The Regular First Appeals are dismissed. The judgment and preliminary decree dated 29.06.2018 passed in O.S.No.520/2015 by the learned II Additional Senior Civil Judge, Dharwad, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 13