- 1 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2ND DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.6195 OF 2012 (PAR) BETWEEN: 1. SHRI. ABHINANDAN S/O. NAGESH BANDEKAR, AGE: 42 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 2. SMT. ALKA W/O. NAGESH BANDEKAR, AGE: 66 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 3. SANDEEP S/O. NAGESH BANDEKAR, AGE: 36 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 4. MAHENDRA S/O. NAGESH BANDEKAR, AGE: 36 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 5. DEEPAK S/O. NAGESH BANDEKAR, AGE: 35 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 6. ANAND S/O. NAGESH BANDEKAR, AGE: 33 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 7. ARAVIND S/O. DATTA BANDEKAR, AGE: 61 YEARS, R/O: MURALIDHARMATH ROAD, KARWAR. 8. KIRAN S/O. PRABHAKAR PAINGANKAR, AGE: 50 YEARS, R/O: G-18, RAMBARG, BAMMANAWADA, M.C. CHAKALA ROAD, ANDHERI (EAST), MUMBAI – 400 099. 9. SMT. RASHMI W/O. CHANDRAKANT SAVANT, AGE: 47 YEARS, R/O: FLAT NO. 104, SHRINATH DHAM, WAMANROA SAVANT ROAD, DAHISAR (E), MUMBAI – 400 068. 10. SMT. MEENAL W/O. PRABHAKAR PAINGANKAR, AGE: 44 YEARS, R/O: FLAT NO. 4, JEEVANSARIT TEJPAL SCHEME ROAD NO.1, VILE PARIE (E), MUMBAI – 400 057 …APPELLANTS (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. SMT. SUNANDA W/O. ASHOK HASYAGAR, AGE: 53 YEARS, R/O: MURALIDHAR MATH ROAD, KARWAR. 2. SMT. RAJANI W/O. RAJU BANDEKAR, AGE: 64 YEARS, R/O: MURALIDHAR MATH ROAD, KARWAR. - 3 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 3. SMT. ANITA D/O. SURESH NAIK, AGE: 39 YEARS, R/O: MURALIDHAR MATH ROAD, KARWAR. 4. LAXMIDHAR H. KEREMANE, SINCE DECEASED BY HIS LR’S 4A. SMT. PADMINI W/O. LAXMIDHAR KEREMANE, AGE: 69 YEARS, OCC: HOUSE HOLD, R/O: LOTUX COMPLEX, GREEN STREET, KARWAR – 581 301, KARNATAKA. 4B. HRISHIKESH S/O. LAXMIDHAR KEREMANE, AGE: 40 YEARS, OCC: SERVICE, R/O: LOTUX COMPLEX, GREEN STREET, KARWAR – 581 301, KARNATAKA. 4C. ADESH S/O. LAXMIDHAR KEREMANE, AGE: 33 YEARS, OCC:SERVICE, R/O: LOTUX COMPLEX, GREEN STREET, KARWAR – 581 301, KARNATAKA. 5. SMT. PADMINI LAXMIDHAR KAREMANE, AGE: 61 YEARS, R/O: LOTUS COMPLEX, GREEN STREET, KARWAR. 6. ASHOK S/O. YESHWANT BAADKAR, SINCE DECEASED BY HIS LR’S. 6A. MRS. SABEETA ASHOK BADKAR(WIFE) WIFE OF ASHOK BADKAR, AGE: 59 YEARS, R/O: 29/240, UNNATNAGAR NO.II, S.V.ROAD, GOREGAON(WEST) MUMBAI(MAHARASHTRA STATE). - 4 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 6B. SUMEET ASHOK BADKAR (SON) WIFE OF ASHOK BADKAR, AGE: 39 YEARS, R/O: 29/240, UNNATNAGAR NO.II, S.V.ROAD, GOREGAON(WEST) MUMBAI (MAHARASHTRA STATE). 6C. SNEHA ASHOK BADKAR (DAUGHTER) WIFE OF ASHOK BADKAR, AGE: 30 YEARS, R/O: 29/240, UNNATNAGAR NO.II, S.V.ROAD, GOREGAON(WEST) MUMBAI(MAHARASHTRA STATE). 7. PRAMOD YESHWANT BAADKAR, AGE: 40 YEARS, R/O: A1-14, SATYADARSHAN HOUSING CO-OP. SOC. MALAPA, DONGRI NO.3, ANDHERI (EAST), MUMBAI. …RESPONDENTS (BY SRI. S.V.YAJI, ADVOCATE FOR R1 TO R3; SRI. RAVI S. BALIKAI, ADVOCATE FOR R4(A TO C); R6(A) TO R6(C) ARE SERVED; V/O DATED: 11.06.2025 NOTICE TO R7 IS DISPENED WITH) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.10/2011 PASSED BY THE DISTRICT JUDGE, UTTARA KANNADA, KARWAR DATED 17.08.2012 CONFIRMING THE JUDGMENT AND DECREE PASSED IN O.S.NO.35/2004 PASSED BY THE ADDITIONAL CIVIL JUDGE (SR.DN.,) KARWAR DATED 17.12.2010, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. Plaintiffs are before this Court being aggrieved by the judgment and decree dated 07.12.2010 passed in O.S.No.35/2004 on the file of Additional Civil Judge (Sr. Dn.), Karwar (for short, ‘Trial Court’) by which the Trial Court decreeing the suit of the plaintiffs in part granted equal share to the parties in respect of suit lands in Sy.Nos.1329/4, 1329/5 measuring 0-5-0 guntas and dismissed the suit in respect of land in Sy.No.1330/5 measuring 0-12-04 guntas which is confirmed by the judgement and order dated 17.08.2012 passed in RA No.10/2011 on the file of District and Sessions Judge, Uttara Kannada, Karwar (for short ‘First Appellate Court’). 2. The above suit is filed by the plaintiffs contending that one Nagappa was the propositus having two sons by name Datta and Yeshwant. Plaintiffs represent the branch of Datta and defendants represent the branch of Yeshwant. Defendant Nos.2 to 6 are the purchasers of item No.3 of suit property namely land bearing - 6 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 Sy.No.1330/5 measuring 12 guntas. That the suit land was originally a tenancy land and the propositus Nagappa being a tenant was in possession and cultivation of the same. That he had constructed house bearing Municipal Nos.1654 and 1655. Upon his demise, plaintiffs and defendant No.1 were cultivating the land and as such they filed Form No.7 before the Land Tribunal, Karwar seeking occupancy rights. The occupancy rights were granted to the manager of the joint family namely Datta, Nagappa and others. However, while issuing Form No.10 by the Tahasildar, Karwar in respect of suit land bearing Sy.No.1330/5, the same was issued in the name of Yeshwant without mentioning the name of Datta which is contrary to the judgement passed by the Land Tribunal, Karwar. The said Datta passed away on 03.05.1978. Upon his demise his son Nagesh (father of the plaintiff Nos.1 to 6) had challenged the grant certificate in Form No.10 issued by the Tahsildar, Karwar before the High Court in WP No.31670/1999. That on 13.08.1999 even the said Nagesh passed away. In that circumstances, a - 7 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 compromise was entered into between the plaintiffs and defendant No.1, which was filed in the said writ petition in WP No.31670/1999 accordingly, matter was settled between the parties. In terms of the said compromise plaintiffs and defendants agreed to be the joint owners of land and whatsoever transaction that had been done by defendant No.1 or her family prior to the order passed in WP No.31670/1999 was not binding on the plaintiffs, accordingly suit for partition of the suit property was filed. 3. Written statement is filed by the defendant No.2 denying the plaint averments it is contended that earlier plaintiffs had filed the suit in OS No.4/2000 which was withdrawn without notice to the defendants. That the suit filed by the defendant without seeking declaration was not maintainable. The defendants after purchase of portion of the land have put up residential house. Plaintiffs being aware of deed of sale executed by defendant No.1 in their favour and their names having been entered into revenue records, have not objected therefore, the plaintiffs are - 8 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 restrained making any imaginary claims. Hence, sought for dismissal of the suit. 4. Defendant No.4 also filed written statement claiming that the Land Tribunal, Karwar in its order dated 15.05.1976 had conclusively held that the suit lands were the exclusive property of Yeshwant as such, the plaintiffs have no claim over the property. The claim with regard to joint tenancy is also denied by defendant No.4. Defendant Nos.5, 6 and 3 are also filed written statement in the lines of the written statement filed by defendant No.4. 5. Based on the pleadings on record, the Trial Court framed the following issues for its consideration: 1) Whether the plaintiffs prove that they and defendant No.1 are the samyuk owners of the Suit schedule 'A' and 'B' properties? 2) Whether the suit is hit by the principle of resjudicata? 3) Whether the suit is bad for non- joinder of necessary parties? 4) Whether the suit is barred by limitation? - 9 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 5) Whether the defendant No.6 proves that he is the bonafide purchaser of 0- 0-11 in Sy.No.1330/5 of Baad-III of Karwar Taluka? 6) Whether the plaintiffs are entitled for the relief sought for? 7) What order or decree? 6. Plaintiff No.1 examined himself as PW1 and produced 13 documents marked as Ex.P1 to P13. Three witnesses have been examined on behalf of defendants as DW1 to DW3 and have produced 37 documents marked as Ex.D1 to D37. On appreciation of the evidence, the Trial Court partly decreed the suit granting share in suit land in Sy.Nos.1329/4 and 1329/5 and dismissed the suit in respect of land bearing Sy.No.1330/5. 7. Being aggrieved by the same, the plaintiffs preferred regular appeal in RA No.10/2011. The First Appellate Court framed the following points for its consideration. 1) Whether the appellants have made out a case for allowing I.A IV to allow additional evidence? - 10 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 2) Whether plaintiffs have also made out a case for grant of share in respect of land in Sy.No.1330/5? 3) If so, impugned order to that extent is suffering from infirmity, capriciousness or illegality? 4) What Order? 8. On re-appreciation the First Appellate Court answered the point Nos.1 to 3 in the negative and consequently, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, plaintiffs are before this Court. 9. This Court by order dated 02.07.2025 admitted the aforesaid appeal to consider the following substantial question of law: i) Whether the Trial Court and the First Appellate Court are justified in coming to the conclusion that the suit land bearing Sy.No.1330/5 is the absolute property of Yashwant and not the joint family property? ii) Whether the Trial Court and the First Appellate Court are justified in granting share in respect of other properties to Amba, Kalyani and Jayavanti, daughters of the propositus Nagappa though they are stated to have been - 11 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 passed away long prior to filing of the suit without leaving behind any legal heirs? 10. Sri. Sangram S. Kulkarni, learned counsel appearing for the plaintiff/appellant taking this Court through the records vehemently submits that the land bearing Sy.No.1330/5 was a joint family property and Form No.7 had been filed jointly by all the members of the family. However while issuing certificate in Form No.10 the same was issued in the name of Yeshwant. He further submits that the parties by entering into a compromise in WP No.31670/1999 had mutually agreed and decided to treat the suit properties as joint family properties. As such, the defendant No.1 had no right to alienate the joint family property in favour of defendant Nos.2 to 6. 11. He further submits that the plaintiff had filed an application under Order XLI Rule 27 of CPC seeking production of additional documents namely Form No.7 filed in TNC:MSC:SR:3619, which the First Appellate Court has not considered. Thus, he submits that non- consideration of material evidence by the Trial Court and - 12 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 the First Appellate Court has resulted in perversity in passing the judgment by holding land in Sy.No.1330/5 being the absolute property of Yeshwant. 12. Adverting to the substantial question of law, counsel submits that the Trial Court and First Appellate Court erred in giving share to Amba, Kalyani and Jayavanti the daughters of original propositus Nagappa even though they were neither parties to the suit nor they were alive at the time of filing of the suit. He submits that the Trial Court and the First Appellate Court erred both on facts and law and substantial question of law framed are required to be answered in favour of the appellants. 13. Per contra, Sri.Ravi S Balikai learned counsel appearing for the defendant No.5 and 6 and Sri.S.V.Yaji learned counsel appearing for defendants No.2 to 4 justifying the judgement and decree passed by the Trial Court confirmed by the First Appellate Court, submits that the grant order at Form No.10 produced in respect of the land in Sy.No.1330/5 at Ex.P.11 makes abundantly clear - 13 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 that two items of the land in Sy.No.1329/4 and 1329/5 each measuring 5 guntas was granted in the name of Datta while the land in Sy.No.1330/5 was granted in the name of Yeshwant. He submits that the plaintiffs herein had challenged the grant made in favour of Yeshwant in Writ Petition No.31670/1999. Though a compromise was entered into in the said writ petition, subsequently at the instance of the purchasers, another Writ Petition came to be filed in W.P.No.33918/2000 challenging the compromise that has been entered into between the plaintiffs and wife defendant No.1 and this Court by order dated 11.08.2004 allowed the said writ petition setting aside the compromise that had been entered into. However, an opportunity was given to the plaintiffs to prove their case notwithstanding setting aside of the compromise to prove and establish their contention of the said property being the joint family property by leading cogent evidence. - 14 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 14. He submits that despite such an opportunity having been granted, the plaintiffs have not produced any acceptable material evidence before the Trial Court. He further submits though an attempt is made before the First Appellate Court by filing an application under Order 41 Rule 27 of CPC seeking production of application in Form No.7, the application so produced is pertaining to the other two landed properties namely Sy.No.1328 and 1329 which was granted in the name of Datta. He submits that the plaintiffs not having availed the opportunity that was granted by this Court while disposing of the aforesaid W.P.No.33918/2000 cannot be heard to say that they have not been given an opportunity. While the application under Order 41 Rule 27 of CPC was filed by them before the First Appellate Court referring to the same at para No.32 of the judgement, the First Appellate Court has found that the documents produced by the parties were sufficient enough to dispose of the appeal though no documents in justification were claimed of property - 15 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 Sy.No.1330/5 to show the same as self-acquired property. Hence, seeks for dismissal of the appeal. 15. Heard. Perused the records. 16. The relationship between the parties is not in dispute. The only contention being urged in this appeal is with regard to the judgement and decree passed by the Trial Court confirmed by the First Appellate Court holding the land in Sy.No.1330/5 measuring 12 guntas which is Item No.3 in suit ‘A’ schedule property being the absolute property of Yeshwant which is succeeded by his wife defendant No.1 upon his demise. 17. There is no dispute of the fact that upon issuance of Form No.10 in respect of the said property in favour of Yeshwant, the plaintiffs herein had filed Writ Petition No.31670/1999 which ended in a compromise. There is also no dispute of the fact that subsequently upon the writ petition filed by the purchasers namely defendants No.2 to 6 in W.P.No.33918/2000 connected with W.P.No.34555-557/2000, this Court had set aside the - 16 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 order dated 30.11.1989 that had been passed in the earlier Writ Petition No.31670/1999. The operative portion has been extracted by the First Appellate Court at para No.24 of its judgment. Perusal of which would indicate that notwithstanding setting aside of the compromise, the plaintiffs were indeed given an opportunity to prove their case of the aforesaid property being the joint family property. Admittedly, no piece of evidence is placed on record to show that the said land was granted in favour of Yeshwant for and on behalf of the family. 18. Though the learned counsel for the appellants referred to the application filed under Order 41 Rule 27 of CPC before the First Appellate Court in I.A.No.4, perusal of which would indicate that attempt that was made to produce the document was Form No.7 bearing No.3619 which corresponds to the application filed in Form No.7 by Datta in respect of land in Sy.No.1329/4 and 1329/5. Even if the said document is taken record, the same would not in any manner whatsoever justify the claim of the plaintiffs - 17 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 with regard to land in Sy.No.1330/5 inasmuch as the said application refers to the property in Sy.No.1329/4 and Sy.No.1329/5 as noted above and the same does not refer to Sy.No.1330/5. In that view of the matter, the rejection of application by the First Appellate Court cannot be found fault with. Consequently it has to be held that the plaintiffs have failed to prove that Item No.3 of suit schedule ‘A’ of the property bearing Sy.No.1330/5 is joint family property. The first substantial question of law is answered accordingly. 19. As regards the second substantial question of law, admittedly the daughters of Nagappa namely Amba, Kalyani and Jayavanti were not parties to the suit and they are stated to have passed away prior to filing the suit without leaving behind any legal heirs. In that view of the matter, merely because their names were reflected in the genealogy furnished the parties, the Trial Court and the First Appellate Court could not have proceeded to allot share in the rest of the suit properties. Learned counsel for - 18 - HC-KAR NC: 2025:KHC-D:8303 RSA No. 6195 of 2012 the appellant is justified in seeking modification of the decree to the extent of the share allotted to the said Amba, Kalyani and Jayavanti. 20. In view of the aforesaid, the following: ORDER i. The appeal is allowed in part. ii. The judgment and decree passed by the Trial Court confirmed by the First Appellate Court is modified to the extent setting aside the decree allotting shares to Amba, Kalyani and Jayavanti. iii. Consequently, plaintiffs and defendant No.1 since deceased represented by defendants No.7 and 8 her daughters are entitled for equal share in the remaining suit schedule properties. SMM-para 01 to 8 SH – para 8 to till end/ CT-ASC/ List No.: 1 Sl No.: 7 Sd/- (M.G.S. KAMAL) JUDGE