- 1 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 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. 100287 OF 2020 (PAR/POS) BETWEEN: 1. SMT. MANJULA W/O. ALLAPPA HOSAMANI, AGE : 48 YEARS, OCC: AGRICULTURE, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. 2. SADASHIV S/O. BASAPPA HOSAMANI, AGE : 60 YEARS, OCC: AGRICULTURE, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. [ 3. SMT. MAHADEVI W/O. LAXMAN HOSAMANI, AGE : 49 YEARS, OCC: AGRICULTURE, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. [ 4. CHETAN S/O. LAXMAN HOSAMANI, AGE : 26 YEARS, OCC: AGRICULTURE, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. 5. LOHIT S/O. LAXMAN HOSAMANI, AGE : 20 YEARS, OCC: STUDENT, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. …APPELLANTS (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. NINGAWWA @ SHANTAWWA W/O. SIDDAPPA YARADETTI, AGE: 59 YEARS, OCC: AGRICULTURE, Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.02.27 15:51:46 +0530 - 2 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 R/O: MUGALKHOD, TQ: RAIBAG, DIST: BELAGAVI-581235. 2. SMT. YAMANAWWA D/O. BASAPPA HOSAMANI, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: NAGNUR, TQ: GOKAK, DIST: BELAGAVI-591224. 3. SMT. ALLAWWA W/O. HANAMANT KALLOLI AGE: 69 YEARS, OCC: AGRICULTURE, R/O: HADAGINAL, TQ: GOKAK, DIST: BELAGAVI-591233. 4. AKKAWWA W/O. MUTTEPPA KALLOLI AGE: 29 YEARS, OCC: AGRICULTURE, R/O: HADAGINAL, NOW RESIDING AT C/O. SRI B.M. KALLOLI ADVOCATE, SRI. BARAGI BUILDING, VIVEKANAND 2ND CROSS, GOKAK, TQ. GOKAK, DIST. BELAGAVI 591218. 5. SMT. KOMAL AJJAPPA @ AJIT KALLOLI AGE: 25 YEARS, OCC: AGRICULTURE R/O: HADAGINAL, TQ. GOKAK, DIST. BELAGAVI-591233. …RESPONDENTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE FOR /R1; SRI. AVINASH S. MALIPATIL, ADVOCATE FOR R3 AND R4; NOTICE TO R2 AND R5 SERVED) THIS RFA IS FILED UNDER SEC. 96 (1) READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED:18.06.2020 PASSED IN O.S.NO.313/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, 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 - 3 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by defendants/ appellants, challenging the judgment and decree dated 18.06.2020, passed in O.S.No.313/2016, by the learned I Addl. Senior Civil Judge, Gokak. 2. For convenience, the parties are referred based on their ranking before the Trial Court. The appellants were defendants No.1(A), 2, 6, 7, 9, the respondent No.1 was the plaintiff, and the other respondents were the defendants No.3, 4, 5, and 8. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the original propositus Basappa had two wives namely Yamanawwa and Kashawwa. Yamanawwa was the first wife and she gave birth to defendant Nos.4 - 4 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 and 5. After the demise of Yamanawwa, Basappa married Kashawwa, and out of the said wedlock, the plaintiff, defendants No.1 to 3, and Laxman were born. Laxman died leaving behind defendants No.6 to 9 and his mother Kashavva as his legal representatives. Defendant No.6 is the wife of Laxman. Defendants No.7 to 9 are the children of Laxman and Mahadevi. The plaintiff’s case is that, Basappa died on 10.04.2006. The suit schedule properties were owned and possessed by Basappa. It is contended that, Basappa had a brother by the name Bhimappa Hosmani and after the death of their father, Basappa’s sibling and Basappa got effected a partition in the family properties held by their father, which is evident from mutation entry No.1448 of Nagnur village in 1941. The properties fallen to the share of Basappa are R.S.No.3/7A, measuring 11 guntas, R.S.No.4/3A, measuring 1 guntas, R.S.No.335/1A, measuring 6 acres 24 guntas, R.S.No.344/5A, measuring 3 acres 21 guntas, R.S.No.345/1, measuring 2 acres 2 guntas, R.S.No.348/17A, measuring 3 acres 1 guntas. Other than - 5 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 the above properties, the propositus Basppa had acquired ownership right over the properties bearing R.S.No.24/1+2+3/1, measuring 9 acres 12 guntas, R.S.No.25/1A, measuring 4 acres 27 guntas, R.S.No.25/1B, measuring 2 acres 10 guntas, R.S.No.25/3, measuring 20 guntas out of 1 acre, R.S.No.25/4, measuring 1 acre, R.S.No.25/6, measuring 1 acre. The aforesaid properties are the ancestral and joint family properties of the plaintiff and defendants. The plaintiff and defendants are the members of the Hindu undivided joint family. It is contended that, the other defendants have got mutated their names behind the back of plaintiff and defendants No.4 and 5. It is also stated that defendant No.6 is trying to sell the suit properties. No partition is effected between the plaintiff and defendants. The plaintiff requested the defendants to effect a partition. However, the defendants refused to effect a partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. - 6 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 4. During the pendency of the suit, the defendant No.1 passed away and his legal representatives were brought on record as defendant No.1(A) and defendant No.2 filed a written statement, which was adopted by defendants No.1, 6, and 8. Defendants No. 4 and 5 jointly filed their common written statement. Defendant No.2 denied the averments made in the plaint and also denied the description of the suit schedule properties. It is admitted that Basappa had a brother by the name Bhimappa Hosmani, but denied that there was a partition between them and also denied that, certain properties were fallen to the share of Basappa i.e. original propositus. It is contended that there were no ancestral properties owned by the original propositus. As such, there was no concept of joint family and the question of the plaintiff being in joint possession does not arise. It is contended that the plaintiff was never in possession of the suit schedule properties. It was exclusive properties of defendants No.1 to 3, and 6 to 9. Hence, the plaintiff has no right to seek partition. It was contended that the - 7 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 plaintiff was born before the commencement of the Hindu Succession Act, 1956 and her age was shown less, to make a wrongful gain. It was contended that defendants No.1 to 3 and deceased Laxman entered into a partition in the presence of elders and based on oral partition, their names were mutated in respect of the properties fallen to their share and they are in possession and enjoyment of the same. The marriage of plaintiff and defendants No.4 and 5 were performed about 40-45 years back and they are residing at their matrimonial House. It is contended that the plaintiff has not challenged the mutation effected in the names of defendants No.1 to 3 and the deceased Laxman. Hence, on these grounds, pray to dismiss the suit. 5. Defendants No.4 and 5 have filed a common written statement admitting the plaint averments, description, and genealogy. Defendants No.4 and 5 sought for a counter-claim contending that they were entitled to a 1/7th share in the suit schedule properties and prays to - 8 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 decree the suit and counterclaim of defendants No.4 and 5. The defendants No.4 and 5 were ready to pay the Court fee on the counterclaim. 6. The trial Court, based on the pleadings of the parties, framed the following issues: ISSUES 1. Whether the plaintiff proves that suit schedule properties are ancestral joint family properties of themselves and defendant No.1 to 9? 2. Whether defendant No.2 proves that suit properties are exclusive properties of defendant No.1 to 3 and defendant No.6 to 9? 3. Whether the plaintiff is entitled for the reilefs claimed in the suit? 4. What order or decree? 7. The plaintiff to substantiate her case, examined herself as PW.1 and marked 17 documents as Ex.P.1 to 17. In rebuttal, defendant No.4 was examined as D.W.1, and D.W.6 was examined as D.W.2, and marked 35 documents as Ex.D.1 to 35. The trial Court, after recording the evidence, and on assessment of oral and documentary - 9 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 evidence, answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 in partly in the affirmative, and issue No.4 as per the final order. The suit of the plaintiff was partly decreed vide judgment dated 18.01.2020 and it declared that the plaintiff was entitled to 1/7th share in all suit schedule properties. Defendants No.1 to 5 were also entitled to 1/7th each share whereas, defendants No.6 to 9 were jointly entitled to 1/7th share in all the suit schedule properties. The plaintiffs claim regarding mesne profit was rejected. Defendants No.1(A), 2, 6, 7, and 9 aggrieved by the judgment and preliminary decree passed in O.S.No.313/2016, filed this Regular First Appeal. 8. Heard the learned counsel for defendants and learned counsel for the plaintiffs. 9. Learned counsel for the defendants submits that the first partition was effected on 08.01.1981 and another partition was effected on 11.09.1984, but the trial Court has not framed the issue regarding the prior - 10 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 partition. He submits that, there was a prior partition between defendants No.1 to 3 and Laxman. Hence, the plaintiff has no right to claim a share in the suit schedule properties. He further submits that based on oral partition, the mutation was effected. Hence, the trial Court has committed an error in recording the finding that there was no prior partition. Further, to buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Digambar Adhar Patil vs Devram Girdhar Paul (Died) And Anr, reported in AIR 1995 SC 1728. He submits that, the trial Court without considering the mutation entry, has committed an error in recording the finding that there was no prior partition as alleged by the defendants No.1 to 3 and Laxman. He also submits that there was a settlement between the parties. During the lifetime of Basappa, the plaintiff did not challenge the family settlement. Hence, on these grounds, he prays to allow the appeal. - 11 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 10. Per contra, learned counsel for the plaintiff submits that the suit schedule properties were owned and possessed by the original propositus Basappa. He submits that the plaintiff is the daughter of Basappa. The plaintiff and defendants are the members of a Hindu undivided joint family and no partition is effected between them, and the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants. He submits that the Revenue Officer in the mutation proceedings based on an untrue piece of evidence, has no evidentiary value in a civil suit. To buttress his argument, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of Dayaram & Ors V/s. Dawalatshah & Ors, reported in AIR 1971 SC 681. He further submits that though the defendants examined DW.2, she did not tender for the cross examination and the trial Court has rightly discarded the evidence of DW.2. He also submits that DWs.1 to 3 have not entered the witness box. Hence, he submits that there is no rebuttal evidence. He further submits that, the parties after having - 12 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 understood the pleadings went for a trial, now defendants No.1 to 3 cannot contend that non-framing of the issue is fatal to the case of parties and not a ground to set aside the impugned judgment. To buttress his argument, he has placed reliance on the judgment of this Court in the case of Sri.M.C.Suresh V/s. Sri.B.Srinivas Naik and others, reported by ILR 2009 KAR 3897. Hence, on these grounds, he prays to dismiss the appeal. 11. Perused the records, and considered the submissions of the learned counsel for the parties. 12. The points, that arise for our consideration are following : 1) Whether the plaintiff prove that suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 9? 2) Whether the defendants prove that the suit schedule properties are the exclusive properties of defendant Nos.1 to 3 and defendant Nos.6 to 9? - 13 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 3) Whether the defendants prove that the judgment passed by the trial Court is arbitrary and erroneous? 4) What order or decree? 13. Re-Point No.1: To substantiate her case, the plaintiff examined herself as PW.1. She reiterated the plaint averments in the examination in chief. She has deposed that, Basappa was the original propositus. He married Yamunawwa, and out of their wedlock, gave birth to defendants Nos.4 and 5. After the birth of defendant No.5, when she was breastfeeding, his first wife, Yamunawwa, died due to serious ill health. Basappa married to Smt. Kashawwa as per the customs prevailing in their community. Smt. Kashawwa is a legally wedded wife of Basappa. Out of their wedlock, Smt. Kashawwa gave birth to the plaintiff, defendant Nos.1 to 3, and deceased Laxman. The plaintiff and defendants are the coparceners, and they are the members of the Hindu joint family. The suit schedule properties are the joint family properties of the plaintiff and defendants, and no partition - 14 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 is effected between them. It is also stated that Basappa, during his lifetime, sold some of the joint family properties i.e., lands bearing R.S. Nos.344/5A, 345/1 and 348/17A to the members of Mughalkod family for a valuable consideration. After the demise of Basappa, the plaintiff and the defendants continued their joint family. The plaintiff and the defendants succeeded to the suit schedule properties. The family of the plaintiff; and the defendants are deriving sufficient income from the suit properties. The defendants tried to alienate the suit properties standing in the names of the plaintiff, behind the back of the plaintiff. The plaintiff to prove that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendant Nos.1 to 9, produced the documents. Ex.P1 is the RTC extract of the land bearing Sy.No.3/7A standing in the name of defendant Nos.1 to 3 and 9; Ex.P2 is the RTC extract of the land bearing Sy. No.4/3A standing in the name of Hosamani Allappa and others jointly; Ex.P3 is the RTC extract of the land bearing Sy.No.24/1+2+3/1 standing in the name of defendant - 15 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 Nos.1, 2 and 6; Ex.P4 is the RTC extract of the land bearing Sy.No.25/1A standing in the name of defendant No.7; Exs.P5 is the RTC extract of the land bearing Sy.No.25/1B standing in the name of Hosmani Allappa; Ex.P6 is the RTC extract of land bearing Sy.No.25/3 standing in the name of Hosmani Ramappa and Kashawwa jointly; Ex.P7 is the RTC extract of the land bearing Sy.No.25/4 standing in the name of Hosmani Allappa; Ex.P8 is the RTC extract of the land bearing Sy.No.25/6 standing in the name of Hosmani Allappa; Ex.P9 is the RTC extract of land bearing Sy.No.335/1A which stands in the name of defendant No.2; Exs.P10 to 12 are the mutation entries hearing Nos.1448, 5150 and 4220; Exs.P13 to 16 are the photographs and Ex.P17 is the CD. 14. During the course of cross-examination, PW.1 admitted that in 1960, the Government granted suit schedule properties to defendant No.1 and Bhimappa. Item Nos.1 to 3 of schedule properties were allotted to her father in 1973 and based on the partition, the mutation - 16 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 was effected under ME No.5527. It was suggested that, the partition took place during the lifetime of Basappa between the defendants, but PW.1 pleads ignorance. 15. In rebuttal, defendant No.4 was examined as DW.1. She reiterated the written statement averments in the examination-in-chief, and to prove that there was a prior partition among the sons of Basappa i.e., defendant No.1, deceased Laxman produced mutation entries marked as Exs.D1 to 8, Exs.D9 to 26 are the RTC extracts, Ex.D27 to 35 are the mutation entries. Further, defendant No.6 was examined as DW.2. She has deposed in the same terms as defendant No.1. She did not tender herself for cross-examination, and her evidence has to be discarded. 16. The perusal of the entire evidence on record, it discloses that the suit schedule properties were owned and possessed by the original propositus Basappa, and his brother Bhimappa Hosmani. The partition was effected between Basappa and his brother, Bhimappa Hosmani. In - 17 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 the said partition, R.S No. 3/7A measuring 11 acres 9 guntas, R.S No.4/3A measuring 1 gunta, R.S No.335/1A measuring 6 acres 24 guntas, R.S No.344/5A measuring 3 acres 21 guntas, R.S No.345/1 measuring 2 acres 2 guntas, and R.S No.387/17A measuring 3 acres 1 guntas, fallen to the share of the deceased Basappa. The deceased Basappa mortgaged the lands in R.S Nos.25/2, 25/1, 25/6, 25/3 25/5 and 25/7. 17. It is the case of the defendants that, during the lifetime of Basappa, there was a partition. The defendants have admitted that, suit schedule properties were fallen to the share of deceased Basappa and during his lifetime, there was a partition effected between defendant Nos.1, 2 and deceased Laxman. To substantiate that, there was a prior partition between defendant Nos.1, 2, deceased Basappa and Laxman, the defendants have not produced the records to establish that, there was a prior partition, and further, no independent witnesses were examined to prove the prior partition. Further, the defendants have - 18 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 also not pleaded, when exactly, the alleged partition was effected. The plaintiff has denied the alleged prior partition between defendant Nos.1, 2, deceased Basappa and deceased Laxman. It is the settled law that in a suit for partition and separate possession, the initial burden is always on the plaintiff to prove the relationship and the nature of the suit schedule properties. Once the plaintiff discharges the burden, the burden shifts upon the defendants to establish the nature of the suit schedule properties. The defendants produced the mutation extract. From the perusal of the mutation extract, it does not disclose, when partition was effected between defendants Nos.1, 2 and deceased Basappa and Laxman. Further, the said mutation is not supported by any piece of evidence. If the order of revenue authorities is based on an untrue piece of evidence, it has no evidentiary value in a civil suit. The Hon'ble Apex Court in the case of DAYARAM & OTHERS VS. DAWALATSHAH & OTHERS reported in AIR 1971 SC 581 held that, the revenue officer in the mutation proceeding passed on an untrue piece of - 19 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 evidence, that has no evidentiary value in the civil suit. Merely, based on the mutation entries, this Court cannot hold that there was a prior partition between defendant Nos.1, 2 and deceased Basappa and deceased Laxman. 18. The defendants, except producing the mutation entry, have not examined any witnesses, who were present at the time of the alleged partition between them. The mutation entry is not supported by any oral evidence. As observed above, the plaintiff has proved that suit schedule properties are the ancestral joint family properties of the plaintiff and defendant Nos.1 to 9, and they are the members of Hindu joint family, and no partition is effected. The plaintiff, being a coparcener, is entitled to a share in the suit schedule properties. In view of the above discussion, we answer point No.1 in the affirmative. 19. Re-point No.2: It is the case of the defendants that suit schedule properties are the exclusive properties of defendant Nos.1 to 3 and 6 to 9. Defendant Nos.1 to 3, - 20 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 and 6 to 9 have taken a defense that, the suit schedule properties are the self-acquired properties of defendant Nos.1 to 3 and 6 to 9. Defendant Nos.1 to 3 and 6 to 9 have not stated, how they have acquired the suit schedule properties. Though, they have taken a defense that, there was a prior partition between defendant Nos.1, 2, deceased Basappa, and deceased Laxman, the defendants have failed to prove that, there was a prior partition between defendant Nos.1, 2, deceased Basappa and deceased Laxman. As we have already held that, the suit schedule properties are the ancestral joint family properties of the plaintiffs, defendants Nos.1 to 9, and no partition is effected between them. The plaintiff, being a coparcener, is entitled to share in the suit schedule properties, and further, the defendants have not examined any witnesses to establish the alleged prior partition between them. Defendants Nos.1 to 3, 6 to 9 have failed to establish that, the suit schedule properties are the exclusive properties of defendant Nos.1 to 3 and 6 to 9. - 21 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 In view of the above observation, we answer point No.2 in the negative. 20. Re-Point No.3: Admittedly, the plaintiff and defendants are members of a Hindu joint family, and the suit schedule properties were owned and possessed by the original propositus Basappa. He died, leaving behind the plaintiff, defendant Nos.1, 2 and deceased Laxman. There is no partition effected between them. The trial Court, considering the material on record, has rightly recorded its finding that, the suit schedule properties are the ancestral joint family properties of the plaintiff and defendants, and no partition is effected between them. The plaintiff, being a coparcener and daughter of Basappa, is entitled to a share in the suit schedule properties. The trial Court was justified in passing the impugned judgment. We do not find any error in the impugned judgment. We concur with the judgment passed by the trial Court. In view of the above discussion, we answer point No.3 in the negative. - 22 - NC: 2025:KHC-D:1546-DB RFA No. 100287 of 2020 21. Re-Point No.4: Accordingly, we proceed to pass the following: ORDER The appeal is dismissed. The judgment and decree passed by the trial Court in O.S No.313/2016 is hereby confirmed. No order as to the costs. In view of the dismissal of the appeal, I.A.No.1/2020 does not survive for consideration, and is accordingly, disposed of. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE Vb/- para no.1 to 10 Ct-cmu LIST NO.: 1 SL NO.: 18