- 1 - HC-KAR NC: 2025:KHC-D:9328 RFA No. 100341 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 29TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100341 OF 2017 (POS) BETWEEN: 1. SHRI. VISHWANATH S/O RAMKRISHNASA KHODAY AGE: 60 YEARS, OCC: BUSINESS, R/O. C/O. KHONDAY GARMENTS, DAJIBANPETH, HUBBALLI-580028. …APPELLANT (BY SRI. PRAKASH K. JAWALKAR, ADV) AND: 1. SHRI. NARAYANSA S/O. RAMKRISHNASA KHODAY AGE: 63 YEARS, OCC: BUSINESS, R/O. GANGAPURPETH, GADAG-582103. 2. SHRI. MANOHARSA S/O. RAMKRISHNASA KHODE AGE: 58 YEARS, OCC: BUSINESS, R/O. GANGAPURPETH, GADAG-582103. …RESPONDENTS (BY SRIYUTHS. ARUN L. NEELOPANT, KAVITHA S. JADHAV AND N.B. JODALLI, ADVS FOR R1 SRIYUTHS. VISHWANATH S. BICHAGATTI AND PARASHURAM C. SAJJANAR, ADVS FOR R2) THIS RFA IS FILED U/SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2017 PASSED IN O.S NO.151/2016 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR POSSESSION AND MESNE PROFITS. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER : MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.08.01 11:36:39 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9328 RFA No. 100341 of 2017 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. Learned counsel for the appellant filed a memo seeking permission of this court to withdraw the appeal, with a liberty to file a partition suit pertaining to the suit properties of this appeal. 2. Perused the Judgment and decree passed by the Trial Court. 3. The plaintiff filed a suit for possession in O.S.No.151/2016 based on a registered sale deed, marked as Ex.P5. However, the plaintiff has not sought a relief of declaration of title. Despite this, the Trial Court in paragraph No.39 of its Judgment, recorded a finding, which reads as follows: “So in view of my aforesaid discussion above and considering oral and documentary evidence on record, the plaintiff has proved his title over the suit schedule property and their existence” 4. One Shankuntala Bai had filed a suit for partition and separate possession in O.S.No.66/2005 on 13.06.2005, - 3 - HC-KAR NC: 2025:KHC-D:9328 RFA No. 100341 of 2017 wherein the present plaintiff and the defendants have filed a common written statement contending that the suit scheduled properties (therein), including the subject matter of this appeal, are purchased from the joint family funds and they are the joint owners. 5. In view of the admission made by the plaintiff and the defendants in O.S.No.66/2005, it was for the Trial Court to record the finding regarding the title of the plaintiff over the suit schedule properties. The finding recorded by the Trial Court about the title of the plaintiff over the suit schedule properties, was unwarranted. 6. Learned counsel for the respondent submits that he has no objection for the withdrawal of the appeal by the appellant. 7. Memo is taken on record. 8. The appeal is dismissed as withdrawn, with a liberty to the appellant, to file a partition suit. - 4 - HC-KAR NC: 2025:KHC-D:9328 RFA No. 100341 of 2017 9. In case, if the defendants file a suit for partition and separate possession, the Trial Court shall dispose of the suit without being influenced by any observations made in the impugned judgment insofar as the title of the plaintiff’s over the suit schedule properties, is concerned. 10. All the contentions of the parties that are kept open. Sd/- (ASHOK S. KINAGI) JUDGE RHR/- CT: BSB List No.: 1 Sl No.: 4