- 1 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100372 OF 2017 (PAR/POS) BETWEEN: SMT. HEMAVATI W/O. VITHAL GIRADDI, AGE: 65 YEARS, OCC: HOMEMAKER AND AGRICULTURE THROUGH SPECIAL POWER ATTORNEY HOLDER VITHAL VENKAPPA GIRADDI, AGE: 68 YEARS, R/O: NEAR FOREST OFFICE, RAMATIRTH ROAD, JAMKHANDI-587301, DIST: BAGALKOTE. …APPELLANT (BY SRI K.L.PATIL, ADV) AND: 1. SRI. BASAVARAJ S/O. SANGAPPA SINDHUR, SINCE DECEASED BY LRS 1(A) SANJAYKUMAR S/O BASAVARAJ SINDHANUR AGE: 29 YEARS, OCC:LINEMAN, R/O SAVALAGI SUB DIVISION, SAVALAGI, TQ. JAMKHANDI, DIST. BAGALKOT. 2. SRI. MALLAPPA S/O. SANGAPPA SINDHUR, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: TUBACHI-587119 TQ: JAMKHANDI, DIST: BAGALKOTE. 3. SRI. SHIVALINGAPPA S/O. SANGAPPA SINDHUR, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: TUBACHI-587119 TQ: JAMKHANDI, DIST: BAGALKOTE. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.01 10:53:14 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 4. SRI. SHANKREPPA S/O. SANGAPPA SINDHUR, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: TUBACHI-587119 TQ: JAMKHANDI, DIST: BAGALKOTE. 5. SRI. BABU S/O. SANGAPPA SINDHUR, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: TUBACHI-587119 TQ: JAMKHANDI, DIST: BAGALKOTE. 6. SMT. KALLAWWA W/O. SANGAPPA SINDHUR, AGE: 79 YEARS, OCC: NIL, R/O: TUBACHI-587119 TQ: JAMKHANDI, DIST: BAGALKOTE. 7. SMT. GANGAWWA W/O. SIDDAPPA TAKKALAKI, AGE: 61 YEARS, OCC: HOMEMAKER, R/O: TUNGAL-587330 TQ: JAMKHANDI, DIST: BAGALKOTE. …RESPONDENTS (BY SRI PRAKASH N.HOSAMANE, ADV FOR R1(A), NOTICE TO R2 TO R7 ARE SERVED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF CPC, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY ADDITIONAL SENIOR CIVIL JUDGE, JAMKHANDI IN O.S.NO.35/2010 DATED 17.07.2017 AND CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFF AND COSTS THROUGH OUT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI - 3 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Appeal is filed by defendant No.7 challenging the judgment and preliminary decree dated 17.07.2017 passed in O.S.No.35/2010 by the learned Addl. Senior Civil Judge, Jamakhandi. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.7, respondent No.1 was the plaintiff, and the other respondents were the defendants. 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 one Sangappa was the original propositus. He had a wife named Kallawwa, i.e., defendant No.5. Sangappa and Kallawwa had 6 children, viz., defendants and the plaintiff No.1 to 4 and 6. Late Sangappa - 4 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 possessed the landed properties. Out of the landed properties, RS No.58/1 measuring 4 acres 12 guntas, and RS No.74/2 measuring 5 acres of Tubachi have been sold. Similarly, RS No.374/4/1+2 measuring 4 acres, was also sold. RS No.2/2/1 measuring 1 acre 1 guntas and RS No.2/2/2 measuring 1 acre 1 gunta was submerged in Upper Krishna Project, Alamatti. It is contended that R.S No.210/2 and R.S.No.210/3 were purchased from the sale proceeds of the above said lands. It is contended that defendant No. 3 has sold RS No. 210/3 to defendant No. 7 behind the back of the plaintiff. It is the case of the plaintiff that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants, and no partition has been effected between them. Hence, the plaintiff demanded partition and separate possession. But, 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. - 5 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 4. Defendants No.1, 2, 4 and 5 filed a written statement admitting the averments made in the plaint, and also sought their respective shares, and paid the Court fee. Accordingly, prays to decree the suit. 5. Defendant No.6 also supported the case of the plaintiff, and sought a 1/6th share in the suit schedule properties. Accordingly, prays to dispose of the suit. 6. Defendant No.3 filed a written statement admitting the relationship between the parties to the suit. It is admitted that Sangappa possessed certain landed properties. The lands in RS Nos.58/1, 74/2, 374/4/1+2 were sold, and landing RS No.2/2/1 and RS No.2/2/2 were acquired. He admitted that the compensation amount awarded regarding RS Nos.2/2/1 and 2/2/2 has been received by him, his mother, and brothers. It is denied that he was addicted to bad vices, and to meet the same, he sold RS No.210/3 in favour of defendant No.7. It is contended that in 1996 and 1998, a partition was effected - 6 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 concerning Tubachi lands. It is contended that he and defendant No.2, out of their private funds, purchased the lands in RS No.210/2 and 210/3, and as such, he became the absolute owner of RS No.210/3. Hence, prays to dismiss the suit against him. 7. Defendant No.7 filed a written statement reiterating the averments of the written statement filed by defendant No.3, and contended that after verifying with the title of defendant No.3, he has purchased RS No.210/3 under the registered sale deed dated 07.02.2006, and defendant No.3 put defendant No.7 in possession of the said property. Defendant No.7 is in possession of RS No.210/3. Since the date of sale deed. It is also contended that there was a partition between the family members of the plaintiff and defendants No.1 to 6. RS No.210/3 fell to the share of defendant No.3. It is contended that she is a bonafide purchaser for a value without a notice of the plaintiff alleged claim over the said land. Hence, she prays to dismiss the suit against her. - 7 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 8. The trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendants No. 1 to 4? 2. Whether the plaintiff proves that defendant No.3 sold property bearing R.S.No.210/3 to defendant No.7 without the consent of plaintiff? 3. Whether the defendants No.2 & 3 proves that, the land bearing R.S.No.210/2 and 201/3 are their self acquired properties? Re-casted issue No.3 3. Whether the defendant No.3 proves that, the land bearing R.S.No.210/2 and R.S.No.210/3 are the self acquired properties of defendant No.2 and him respectively? 4. Whether the defendant proves that alleged previous partition? 5. Whether the defendant No.7 proves that, she is bona-fide purchaser for value? 6. Whether the plaintiff is entitled for the relief sought for? 7. What Order and Decree? 9. The plaintiff, to substantiate his case, examined himself as PW-1, one witness as PW-2, and marked 21 - 8 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 documents as Exs.P-1 to P-21. In rebuttal, defendant No.2 was examined as DW-1, one witness was examined as DW-2, and marked 7 documents as Exs.D-1 to D-7. 10. The trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, answered issue Nos.1, 2, 5 and 6 in the affirmative, issue Nos.3 and 4 in the negative, and issue No.7 as per the final order. The suit of the plaintiff was decreed in part with costs vide judgment dated 17.07.2017 and it is declared that plaintiff and defendants No.1 to 5 are entitled to a 8/49th share each in the suit properties Defendant No.6 is entitled to a 1/49th share in the suit properties. The sale deed executed by defendant No.3 in favour of defendant No.7 is not binding upon the plaintiff and defendants No.1, 2 and 4 to 6; Defendant No.7 was permitted to participate in the final decree proceedings to seek equitable remedy. - 9 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 11. Defendant No.7, aggrieved by the judgment and decree passed by the trial Court awarding a share regarding of RS No.210/3, filed this Regular First Appeal. 12. Heard the arguments of the learned counsel for defendant No.7, and the learned counsel for the original plaintiff. 13. A Notice was issued to the respondents. Respondent No.1 appeared through counsel. However, despite service of notice, respondents No.2 to 7 remained unrepresented. 14. Learned counsel for defendant No.7 submits that defendant No.7 has taken a specific defence in paragraph No.10 of the written statement that there was a prior partition between the family members of the plaintiff and defendants No.1 to 6, and a mutation was effected vide M.E.No.2624 and 2993 and certified on 25.03.1996 and on 29.07.1998. He submits that, as per M.E.Nos.2624 and 2993, the partition was effected and the status of a - 10 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 joint family was disrupted. Hence, he submits that defendant No.7 has purchased the properties mutated in M.E.Nos.2624 and 2993. He also submits that before this Court, the said documents are marked as Exs.D-8 and D- 9. He further submits that the trial Court has granted a share in RS No.210/3 only on the ground that defendant No.7 had not produced any records to establish that there was a prior partition. In view of the production of Exs.D-8 and D-9, defendant No.7 has proved that the suit schedule property bearing R.S. No.210/3 is the self acquired property of Defendant No.3. Hence, defendant No.3 was the absolute owner of the suit schedule property and he sold the same in favour of defendant No.7 for family and legal necessity. He submits that the judgment and decree passed by the trial Court insofar as RS No.210/3 concerned is arbitrary, and erroneous. Hence, he prays to allow the appeal, and dismiss the suit against defendant No.7 regarding of R.S.No.210/3. - 11 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 15. Per contra, learned counsel for original plaintiff/respondent No.1(a) supported the impugned judgment and contended that there was no partition as alleged by defendant No.7 in the written statement. Hence, on these grounds, he prays to dismiss the appeal. 16. Perused the records, and considered the submissions of the learned counsel for the parties. 17. The points, that would arise for consideration are as follows: 1) Whether the defendant No.7 proves that RS No.210/3 is the self acquired property of defendant No.3 and sold the same in favour of defendant no. 7 under registered sale deed dated 07.02.2006? 2) Whether the defendant No.3 proves that the trial Court committed an error in awarding a share in RS No.210/3 to the plaintiff? 3) What order or decree? - 12 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 Regarding Point No.1: 18. The plaintiff filed a suit against the defendants for partition and separate possession, regarding suit schedule properties, it is contended that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants No.1 to 6. The plaintiff and defendants No.1 to 6 are the members of a Hindu Undivided Family, and no partition has been effected between the plaintiff and defendants No.1 to 6. Except defendant No.3, the rest of the defendants No.1, 2 and 4 to 6 filed a consenting written statement, and also sought a counterclaim, claiming that they are also entitled to a share in the suit schedule properties. Defendant No.3 filed a written statement contending, that he purchased R.S.No.210/3 under the registered sale deed marked as Ex.D-2 which discloses that the said property was purchased by defendant No.3 under the registered sale deed dated 21.05.1984 from one Vasudev. There is a - 13 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 recital in the registered sale deed that defendant No.3 had paid the entire consideration amount. 19. Admittedly, it is the contention of defendant No.3 that there was a partition during 1996-1998. Admittedly, RS No.210/3 was not included in the partition on the ground that the said property is the self acquired property of defendant No.3. Defendant No.3 has sold RS No.210/3 in favour of defendant No.7. Defendant No.7 paid the consideration amount and defendant No.3 delivered the possession of the suit schedule property under a registered sale deed marked as Ex.P-6. Further the defendant No.7 has taken a contention that there was a prior partition during the years 1996-1998. Though defendant No.7 is a stranger to the family of the plaintiff and defendants No.1 to 6, defendant No.7 has taken a defence in paragraph No.10 of the written statement regarding prior partition and based on the partition, mutations were effected as M.E.Nos.2624 and 2993. - 14 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 20. Defendant No.7 however has taken a defence in the written statement regarding M.E.Nos.2993 and 2624, but defendant No.7 did not produce the said documents before the trial Court. Hence, defendant No.7 filed an application in I.A.No.1/2025 before this Court for the production of an additional evidence, and produced the mutation entries in M.E.Nos.2624 and 2993. The application is allowed with the consent of both parties, and the documents are marked as Exs.D-8 and D-9. The trial Court has recorded a finding that defendant No.7 has not produced any documentary evidence to prove the prior partition. In view of production of Exs.D-8 and D-9, defendant No.7 has produced the documentary evidence to prove the prior partition. 21. As rightly submitted by the learned counsel for defendant No.7, that RS No.210/3 is the self acquired property of the defendant No.3, and he had sold the same in favour of the defendant No.7, the said aspect was not adequately considered by the trial Court, and committed - 15 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 an error in granting a share in RS No.210/3 to the plaintiff and defendants No.1 to 6. 22. Ex.D-3 is a registered sale deed which discloses that defendant No.3 was the absolute owner of the said property. Hence, considering Ex.D-3, and Ex.P-6, this Court holds that defendant No.3 was the absolute owner of the suit schedule property, and he sold the suit schedule property in R.S.No.210/3 in favour of defendant No.7. The plaintiff and the defendants No.1, 2 and 4 to 6 are not entitled to claim any share in RS No.210/3. 23. In view of the above discussion, I answer point No.1 in the affirmative. Regarding Point No.2: 24. Defendant No.7 has taken a specific contention in the written statement that he is the bonafide purchaser for a value without notice. The trial Court framed issue No.5 which is answered in the affirmative, holding that defendant No.7 is the bonafide purchaser for value. As - 16 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 discussed above, defendant No. 7 has produced M E No. 2624 and 2993 before this court, and the same are marked as Ex. D-8 and D-9 with the consent of the parties. Admittedly, defendant No. 7 could not produce the mutation entries in M E No. 2624 and 2993 before the trial court and the trial court has recorded a finding that defendant No. 7 has not produced any documents to prove the prior partition and granted a share to the plaintiff and defendant No. 1 to 6 in RS No. 210/3 which is a self acquired property of defendant No. 3 in view of the production of the aforementioned mutation entries and marking of the same as Ex. D-8 and D-9, the suit of the plaintiff regarding RS. No. 210/3 is liable to be dismissed and the impugned judgment requires to be modified. In view of the above discussion, I answer Point No. 2 in the affirmative. 25. In view of the above, I proceed to pass the following: - 17 - HC-KAR NC: 2025:KHC-D:9765 RFA No. 100372 of 2017 ORDER (i) The Regular First Appeal is allowed in part. (ii) The judgment and preliminary decree dated 17.07.2017 passed in O.S.No.35/2010 by the learned Addl. Senior Civil Judge, Jamakhandi is hereby modified. (iii) The suit of the plaintiff is dismissed regarding of RS No.210/3. (iv) The rest of the impugned judgment is maintained. (v) In view of the disposal of the appeal, pending interlocutory applications, if any, stand disposed off. SD/- (ASHOK S. KINAGI) JUDGE NAA CT: GSM List No.: 1 Sl No.: 7