- 1 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100362 OF 2020 (PAR/POS) BETWEEN: 1 . HUTTAVVA @ RENAVVA W/O KAMANNA BUDIHAL AGE: 31 YEARS, OCC: AGRICULTURE, R/O: S.B. YARAGOPPA-587201, TQ: BADAMI, DIST: BAGALKOTE. 2. JAYASHREE W/O RANGAPPA KALAMANI AGE: 29 YEARS, OCC: AGRICULTURE, R/O: S.B. YARAGOPPA-587201, TQ: BADAMI, DIST: BAGALKOTE. 3. YALLAVVA W/O MOUNESH KAMBALI AGE: 22 YEARS, OCC: AGRICULTURE, R/O: BACHINGUDDA-587201, TQ: BADAMI, DIST: BAGALKOTE. 4. MALLAVVA W/O SANJEEV KAMATAR, AGE: 25 YEARS, OCC: AGRICULTURE, R/O: KADLIKOPPA-582207, TQ: NARAGUND, DIST: GADAG. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.02.20 10:49:47 +0530 - 2 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 5. PRABHULING S/O MAILARAPPA MADDI AGE: 41 YEARS, OCC: AGRICULTURE, R/O: KERUR-587206, TQ: HUNAGUND, DIST: BAGALKOTE. 6. KRISHNA S/O PRABHU MADDI AGE: 20 YEARS, OCC: STUDENT, R/O: KERUR-587206, TQ: HUNAGUND, DIST: BAGALKOTE. 7. REKHA D/O PRABHU MADDI AGE: 16 YEARS, SINCE MINOR REPRESENTED BY HER NEXT FRIEND/MINOR GUARDIAN PRABHULING S/O MAILARAPPA MADDI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: KERUR-587206, TQ: HUNAGUND, DIST: BAGALKOT. 8. CHAITRA D/O BASAVARAJ KEMPANAL AGE: 17 YEARS, SINCE MINOR REPRESENTED BY HER NEXT FRIEND/MINOR GUARDIAN PRABHULING S/O MAILARAPPA MADDI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: KERUR-587206, TQ: HUNAGUND, DIST: BAGALKOT. 9. GANESH S/O BASAVARAJ KEMPANAL AGE: 7 YEARS, OCC: STUDENT, SINCE MINOR REPRESENTED BY HER NEXT FRIEND/MINOR GUARDIAN PRABHULING S/O MAILARAPPA MADDI, AGE: 41 YEARS, OCC: AGRICULTURE, - 3 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 R/O: KERUR-587206, TQ: HUNAGUND, DIST: BAGALKOTE. …APPELLANTS (BY SRI. C.S. SHETTAR, ADVOCATE) AND: 1 . BASAVARAJ S/O YAMANPPA KEMPANAL AGE: 46 YEARS, OCC: AGRICULTURE, R/O: JIGERI, TQ: RON-582209, DIST: GADAG. 2 . SHOBHA W/O MALLIKARJUN AVARI AGE: 34 YEARS, OCC: AGRICULTURE, R/O: CHIKKAMYAGERI-583206, TQ: YALABURGA, DIST: KOPPAL. …RESPONDENTS (NOTICE TO R1 AND R2 SERVED AND UNREPRESENTED) THIS RFA FILED UNDER SECTION 96 OF THE CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.75/2019 DATED: 28.01.2020 IN SO FAR AS REJECTION OF CLAIM OF THE PLAINTIFFS/APPELLANTS OVER SUIT (II) PROPERTY, PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, RON AND ETC., THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.01.2025, THIS DAY, UMESH M ADIGA, J., DELIVERED THE FOLLOWING: - 4 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) The plaintiffs No.1 to 9 of OS No.75/2019 on the file of Senior Civil Judge and JMFC., Court, Ron have filed this appeal challenging the judgment and decree dated 28.01.2020 passed by the said Court. Appellants-plaintiffs have filed the OS No.75/2019 for partition and separate possession. The trial Court partly decreed the suit. Being aggrieved by the same, plaintiffs preferred this appeal. 2. We refer the parties as per their ranking before the trial Court. 3. It is the case of the plaintiffs that one Yamanappa was the propositus of the family and he died during the year 1999 leaving behind, his wife Sharanavva who died on 03.12.2017 and a son by name Basavaraj (defendant No.1) and five daughters by name Shavantravva alias Renavva, Huttavva alias Renavva, Jayashree, Yallavva and Mallavva - 5 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 (plaintiffs). His eldest daughter Shavantravva alias Renavva died leaving behind her husband Prabhulinga and two children i.e. Krishna and Rekha (Plaintiffs No.5 to 7). Son of Yamanappa that is defendant No.1 has two children by name Chaitra and Ganesha (Plaintiffs No.8 and 9). 4. It is further contended that Yamanappa was owner of the suit properties and after his death, his wife and children succeeded to the suit properties and they are joint family properties. They are in joint possession and enjoyment of the suit properties. Daughters of Yamanappa are married and residing in their respective husband’s houses. Taking undue advantage of the absence of the plaintiffs in their native place, defendant No.2 has been interfering in peaceful possession and enjoyment of the suit properties. On enquiry, she contended that she had purchased the suit properties from mother of the plaintiffs and defendant No.1. Thereafter, plaintiffs obtained the revenue records and found that their mother Smt.Sharanavva as well as defendant No.1 executed a sale deed in the name of defendant No.2, in respect of - 6 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 Sy.No.79/2 of Jigari village, totally measuring 8 acres 15 guntas including 2 acres pot kharab. 5. It is further contended by the plaintiffs that defendant No.1 addicted to bad vices and criminal activities. He was arrested and detained in the custody. Plaintiffs learnt that defendant No.2 taking undue advantage of the situation pursued the said Basavaraj to sign on a document with misrepresentation that she would make arrangements for releasing him from the custody. The said Basavaraj believing the words of defendant No.2 had signed on the documents. From such signed papers defendant No.2 created alleged sale deed as if it was executed by Basavaraj as well as Smt.Sharanavva. Smt.Sharanavva never told plaintiffs that she sold the said property in favour of defendant No.2. Therefore sale deed dated 24.05.2006 was obtained by defendant No.2 by playing fraud and misrepresentation on defendant No.1 as well as their mother Smt.Sharanavva. 6. Both the suit properties are joint family properties. Sharanavva or defendant No.1 were not absolute owners of the said properties. They had no right to sell said - 7 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 property in favour of defendant No.2. The said sale deed will not bind the rights of the plaintiffs. With these reasons, plaintiffs prayed for partition and separate possession of their 1/6th share each in the suit schedule property and also declare that the sale deed executed by the Sharanavva and defendant No.1 in favour of defendant No.2 was got executed by playing fraud on them and it will not bind rights of the plaintiffs and consequently grant of permanent injunction restraining the defendants from interfering in the peaceful possession and enjoyment of the suit schedule property in survey No.79/2. 7. Before the trial Court, both the defendants did not appear and they were placed exparte. Plaintiffs to prove their case examined plaintiff no.1 as PW.1 and got marked documents as Exs.P1 to P6 and closed their evidence. 8. The learned trial Judge after hearing the arguments of plaintiffs-appellants and on going through the documents, held that property No.1 i.e. land bearing Re.Sy.No.80/2 is a joint family property and plaintiffs and defendant No.1 are entitled for share in the said property. - 8 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 Trial court held that Sy.No.79/2 is not joint family property. Hence rejected reliefs sought in respect of said property. Being aggrieved by the same, plaintiffs preferred this appeal. 9. Before this Court also, respondents have not appeared. 10. We have heard the arguments of learned advocate for plaintiffs. The learned counsel for the plaintiffs submit that plaintiffs in the pleading as well as in the evidence have consistently contended that suit schedule properties are joint family properties and the said properties are belonging to propositus of the family by name Yamanappa Kempanal and after his death his wife, son and daughters succeeded to the said property by inheritance. Hence, Sharanavva or Basavaraj were not the absolute owners of Sy.No.79/2. Prior to filing of the suit, defendant No.2 started to interfere in peaceful possession and enjoyment of the survey No.79/2 of the suit schedule property. On enquiry with defendant No.2 plaintiffs came to know that she is claiming right on the basis - 9 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 of a sale deed said to be executed by Smt.Sharanavva as well as Basavaraj. Both were not absolute owner of suit property and had no right to sell the land bearing Sy.No.79/2. On further enquiry they learnt that by playing fraud on Sharanavva and Basavaraj, defendant No.2 obtained their signatures and created the alleged sale deed. Therefore, the said sale deed do not bind the rights of the appellants-plaintiffs. 11. The learned advocate for plaintiff further contended that respondents were exparte and contentions of appellants-plaintiffs were not at all disputed by the defendant No.2. The trial Court without considering these facts and properly appreciating evidence and materials held that Smt.Sharanavva as well as Basavaraj were absolute owners of the said survey No.79/2 and they had authority to execute the sale deed. The trial Court also held that the claim of the plaintiffs is barred by time since the sale deed was executed during the year 2006 and it was not challenged by either Sharanavva or defendant No.1 or plaintiffs. The plaintiffs have no knowledge of execution of - 10 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 the said sale deed, since plaintiffs i.e., daughters of Yamanappa have been residing in their respective husband’s house. The trial Court has not considered this fact and erroneously rejected the claim of plaintiffs to grant share in survey No.79/2. Therefore, prayed to set aside the said findings of the trial Court and hold that survey No.79/2 is also joint family property and grant the relief in favour of the plaintiffs. Hence, prayed to allow the appeal. 12. Following points emerges for our determination: 1. Whether the learned trial Judge is justified in not holding that Suit property bearing R.S.No.79/2 of Jigari village of Gajendragad taluk is the joint family property? 2. What order? 13. We answer the said point No.1 in the negative for the following reasons: It is the settled principal of law that whether defendants appear and contest their case before the court or not but burden is on the plaintiff to prove their contentions to grant - 11 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 decree. Merely defendants are remained absent or not filed written statement does not mean that suit shall be decreed. 14. In this case defendants did not appear before trial court. Hence plaint averments were not denied. 15. The only question to be determined is; Whether Sy.No.79/2 of Jigari village of Gajendragad taluk is a joint family property? Plaintiffs in the pleadings as well as in the evidence of PW-1 consistently contended that it was a joint family property and after the death of propositus of the family-Yamanappa, his wife and children have succeeded to the said property. To prove the said contention, appellants-plaintiffs have produced RTC of survey No.79/2 of the year 2019-2020, at Ex.P-2. The said RTC is standing in the name of defendant No.2 both in column No.9 as well as column No.12. In column No.10, it is mentioned that name of defendant No.2 was mutated vide sale deed dated 23.08.2006. Plaintiffs have produced mutation No.2 dated 23.08.2006 at exhibit P3 and it shows that both Sharanavva as well as defendant No.1 have executed the sale deed in favour of defendant No.2 and by virtue of the said sale - 12 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 deed, mutation entry was changed in the name of defendant No.2. Above said both exhibits P2 and P3 nowhere discloses that suit schedule properties bearing survey No.79/2 was a joint family property or it was standing in the name of Yamanappa till his death. No documents produced to prove that any point of time was standing in the name of Yamanappa. Details of acquisition of said land by the Yamanppa is also not furnished and no documents produced to prove that Yamanappa acquired said land. 16. The plaintiffs produced certified copy of the sale deed executed by Sharanavva and defendant No.1 in favour of the defendant No.2 at Ex.P-4. It is dated 24.05.2006. Contents of the said document shows that both the Sharanavva and defendant No.1 mentioned in the said sale deed that “they were absolute owners of the property and members of their family had no right over the said property” Both of them sold the said property for Rs.2,94,000/- to defendant No.2. It is registered sale deed. Photos of Sharanavva and defendant No.1 is reflected in the said document. They were identified by witnesses, infront of sub- registrar. Plaintiffs have not disputed their photos in Ex.P.4. Therefore their contention that when - 13 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 defendant No.1 was in jail, defendant No.2 obtained his signature on a document by misrepresenting him that she would release him from jail are not believable. 17. Sale deed was executed at an undisputed point of time and about 10 years prior to the filing of the suit. Nowhere, in the said document, it is mentioned that the property was earlier belonged to Yamanappa and after his death they succeeded to the said property. 18. Plaintiffs contended that the said sale deed was obtained by playing fraud and misrepresentation. According to the averments in the plaint, plaintiffs have no idea about execution of the sale deed. Sale deed was executed by Smt.Sharanavva as well as defendant No.1 on 24.05.2006 Smt.Sharanavva survived till 2017. At no point of time, she did challenge the said sale deed. Defendant No.1 also did not challenge the same till this day. It is also not the case of the plaintiffs that on enquiry with defendant No.1, he told them about these facts. Defendant No.1 did not appear in this case and supported case of plaintiffs. Therefore, the said averments - 14 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 made by the plaintiffs in their pleadings as well as in the evidence is not believable. 19. Ex.P-4 is registered sale deed and was executed on 24.05.2006 for valuable consideration in favour of defendant No.2. It is stated in the said document that possession was delivered infavor of defendant No.2. Said facts are not disputed by executant of the document. Hence, contentions of plaintiffs that they have been in possession of suit land is also not believable. 20. Learned trial Judge has considered all these facts and rightly rejected the claim of plaintiffs on the ground that they were unable to prove that it is a joint family property. On re-appreciation of evidence and materials, we do not find any reasons to interfere in the said findings. In our view, plaintiffs failed to prove and establish that survey No.79/2 of Jigari village is belonging to the family of the plaintiffs and defendant No.1. Sharanavva and defendant No.1 being absolute owners of the said property have executed Sale deed. Hence it cannot be invalidated. Plaintiffs have no right to claim share in the said property. It is a collusive suit between plaintiffs and defendant - 15 - NC: 2025:KHC-D:3118-DB RFA No. 100362 of 2020 No. 1 to deny the rights of defendant No.2. Hence the trial judge rightly dismissed the claim of plaintiff in respect of Sy.No.79/2. 21. For the aforesaid discussions, we pass the following: ORDER Appeal is dismissed. No order as to costs. Judgment and decree passed in OS No.75/2019 dated 28.01.2020 by the Senior Civil Judge and JMFC., Ron is confirmed. Send back the trial Court records along with copy of this judgment to the trial court. Draw decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB List No.: 1 Sl No.: 1