- 1 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 3057 OF 2011 (PAR) C/W REGULAR SECOND APPEAL NO. 5926 OF 2011 IN RFA NO.3057 OF 2011: BETWEEN: 1. SHRI RANGANATH S/O. NARASINH JAMANIS, AGE: 67 YEARS, OCC: SERVICE, R/O: PATIL GALLI, GAYATRI NAGAR, II CROSS, P.B. KHASBAG, TQ AND DIST: BELAGAVI. 2. SHRI RAGHAVENDRA @ RAGHUNATH S/O. NARASINH JAMANIS, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: KATTI GALLI, M.K. HUBLI, TQ: BAILHONGAL, DIST: BELAGAVI. … APPELLANTS (BY SRI. SANTOSH B. RAWOOT, ADVOCATE) AND: 1. SHRI RAMACHANDRA S/O. RANGARAO JAMANIS, SINCE DECEASED BY LR’S., (NOTE: LEGAL REPRESENTATIVE OF RESPONDENT NO.1 ARE ALREADY ON RECORD AS RESPONDENT NO.2 TO 5) 2. SHRI ANAND RAMACHANDRA JAMANIS, AGE: 66 YEARS, OCC: AGRICULTURE, R/O: M.K. HUBLI, TQ: BAILHONGAL, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 DIST: BELAGAVI. 3. SHRI SRIDHAR RAMACHANDRA JAMANIS, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: M.K. HUBLI, TQ: BAILHONGAL, DIST: BELAGAVI, NOW AT BASARKOD, TQ: BAILHONGAL, DIST: BELAGAVI. 4. SHRI ASHOK RAMACHANDRA JAMANIS, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: M.K. HUBLI, TQ: BAILHONGAL, DIST: BELAGAVI, NOW AT BASARKOD, TQ: BAILHONGAL, DIST: BELAGAVI. 5. SHRI VILAS RAMACHANDRA JAMANIS, AGE: 57 YEARS, OCC: SERVICE, R/O: MOKASHI BUNGALOW, 1ST CROSS, SAPTAPUR, DHARWAD. 6. SHRI SURESH @ VIJAY KRISHNAJI PAGAD, SINCE DECEASED BY LR’S., 6A. SMT. SULABA W/O SURESH PAGAD, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: GURUWAR PETH, KITTUR, TQ: BAILHONGAL, DIST: BELAGAVI. 6B. SHRI SUNIL S/O SURESH PAGAD, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: GURUWAR PETH, KITTUR, TQ: BAILHONGAL, DIST: BELAGAVI. 6C. SHRI PAVANKUMAR S/O SURESH PAGAD, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: GURUWAR PETH, KITTUR, TQ: BAILHONGAL, DIST: BELAGAVI. 6D. SMT. VEENA D/O SURESH PAGAD, AGE: 60 YEARS, OCC: HOUSEHOLD, R/O: GURUWAR PETH, KITTUR, TQ: BAILHONGAL, DIST: BELAGAVI. 7. SHRI RAJENDRAKUMAR S/O. KRISHNAJI PAGAD, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: GURUWAR PETH, KITTUR, - 3 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 TQ: BAILHONGAL, DIST: BELAGAVI. … RESPONDENTS (BY SRI. S.G. NANDOOR, ADVOCATE FOR R3, R2 AND R5 V/O/D 08/12/2023; R2 TO R5 ARE LR’S. OF DECEASED R1; R6(A-D) AND R7-SERVED) THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 05.03.2011 PASSED IN O.S. NO.37/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL AT BAILHONGAL. IN RSA NO. 5926 OF 2011: BETWEEN: ANANT RAMACHANDRA JAMANIS, AGE: 50 YEARS, OCC: AGRICULTURE, R/O: M.K. HUBLI, TQ: BAILHONGAL. … APPELLANT (BY SRI. S.K. KAYAKAMATH, ADVOCATE) AND: 1. RAGHAVENDRA @ RAGHUNATH S/O. NARSIMHA JAMANIS, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: M.K. HUBLI, TQ: BAILHONGAL. 2. RANGANATH S/O NARSIMHA JAMANIS, AGE: 54 YEARS, OCC: TRAFFIC POLICE, R/O: PATIL GALLI, GAYATRI NAGAR, 2ND CROSS, P.B. ROAD, KHASBAG, BELAGAVI. 3. RAMACHANDRA S/O. RANGO JAMANIS, SINCE DECEASED BY HIS LR’S., 3A. SMT. SEETABAI RAMACHANDRA JAMANIS AGE: 88 YEARS, R/O: MUKTAMATH COMPOUND, 1ST CROSS, SAPTAPUR, DHARWAD. 3B. SMT. REVATI W/O BALARAM KULKARNI, AGE: 69 YEARS, R/O: MUKTAMATH COMPOUND, - 4 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 1ST CROSS, SAPTAPUR, DHARWAD. 3C. SMT. ANITA @ KALAVATI W/O ASHOK NADAGOUDA, AGE: 67 YEARS, R/O: WALVEKAR COMPOUND, NEAR UTTARADHI MATH, ACHAR GALLI, BELAGAVI. 3D. SMT. ANITA @ SARALA W/O ASHOK DESAI, AGE: 59 YEARS, R/O: SHRUTI NAGAR, GOKUL ROAD, TARIHAL, HUBBALLI. 4. SRI. SRIDHAR S/O. RAMACHANDRA JAMANIS, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: BASARKOD, BAILHONGAL. 5. SRI. ASHOK S/O. RAMACHANDRA JAMANIS, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: BASARKOD, BAILHONGAL. 6. SRI. VILAS S/O RAMACHANDRA JAMANIS, AGE: 42 YEARS, OCC: AGRICULTURE, NOW AT R/O: BASARKOD, BAILHONGAL. … RESPONDENTS (BY SRI. SANTOSH B. RAWOOT, ADVOCATE FOR R1 AND R2; SRI. M.M. HIREMATH, ADVOCATE FOR R6; R3(A), R3(C), R3(D) AND R5-SERVED; R3(B) AND R4-HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 RULE 1 OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 18.07.2009 PASSED IN O.S. NO.79/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.), BAILHONGAL AND ALSO SET ASIDE THE JUDGMENT AND DECREE DATED 27.07.2011 PASSED IN R.A. N0.25/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, BAILHONGAL. THIS RFA AND RSA ARE COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 ORAL COMMON JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) By virtue of the order passed by the Hon’ble the Chief Justice, RSA No.5926/2011 is tagged with RFA No.3057/2011 and ordered that both these appeals shall be heard by the learned Single Bench having roster of RFA. Therefore, the above said RSA No.5926/2011 is tagged with RFA No.3057/2011. Hence, both the appeals are taken up together for common judgment. 2. RFA No.3057/2011 is filed by the appellants/plaintiffs challenging the judgment and decree passed in O.S.No.37/2005 dated 05.03.2011 on the file of Senior Civil Judge, Bailhongal (for short, ‘Trial Court’), thereby, the suit filed for partition and separate possession is dismissed. 3. RSA No.5926/2011 is filed by the appellant/plaintiff challenging the judgment and decree dated 18.07.2009 passed in O.S.No.79/2004 on the file of Principal Civil Judge (Jr.Dn), Bailhongal (for short, ‘Trial - 6 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 Court’), which is confirmed by the judgment and decree dated 27.07.2011 passed in R.A.No.25/2009 on the file of the Presiding Officer, Fast Track Court, Bailhongal (for short, ‘First Appellate Court’). 4. In RFA No.3057/2011, the suit is filed for partition and separate possession of Schedule-B, Schedule-C and Schedule-D properties, which are as follows: Schedule-B Sl.No. Village R.S.No. Area As.Gs. Assessment Rs. Ps. 1. Basarkod 05 0-13 1-38 2. Basarkod 6/02 0-26 01-49 3. Basarkod 6/4 6-23 12-37 4. Basarkod 82/1 1-23 03-60 5. Basarkod 94/A2 1-25 10-44 6. Basarkod 9A/B2 1-26 03-18 7. Basarkod 95/1 9-20 46-45 8. Basarkod 95/2B 1-20 01-03 9. Basarkod 96/3B/2 0-35 02-35 - 7 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 Schedule-C Residential house with backyard bearing G.P.No.943 situated in Chavadi Oni, Guruwar Peth, Kittur village. Schedule-D Property bearing G.P.No.684 situated ad Basarkod village. 5. In RSA No.5926/2011, the suit is filed for partition and separate possession of the schedule properties, which are as follows: Sl.No. Sy.No. Extent A-G4 Assessment Rs.-Ps. 1. 547/1C 4-15 12-48 2. 547/3 1-31 4-82 3. 547/5 0-10 0-68 4. 548/2A 1-10 3-20 6. Both the suits have been filed between the same family members and genealogies in both the suits are common and the said genealogies are not in dispute. The plaintiffs in O.S.No.37/2005 have shown the genealogy as follows: - 8 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 RAMACHANDRA RANGARAO JAMANIS (Propositus) Krishnaji Rangarao Narayan Died issueless =Radhabai =Laxmibai On 19-07-1941 (died on 27-11-87) Ramachandra Jeevaji Narasinhrao Venkatesh (D1) @ Laxmanrao (died 3-6-96) (went in adoption (died on 6-10-94) to krishnaji s/o Ramachandra =Kamalabai (died on 10-10-91) =Vimalabai =Sitabai (died on 16-7-96) Anant Shreedhar Ashok Vilas Rangnath Raghavendra (D2) (D3) (D4) (D5) (Plft-1) @ Raghunath (Plft-2) 7. The plaintiffs in O.S.No.37/2005 have stated that all the properties are ancestral properties. Hence, they have right of claiming share in the properties, therefore field the suit for partition and separate possession. The defendants in O.S.No.37/2005 have appeared through their advocate and filed written statement denying the case of the plaintiffs that there was already partition in the year 1985 by taking a specific plea at paragraph No.7 of the written statement. - 9 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 8. In O.S.No.37/2005, based on the pleadings of the parties, the Trial Court has framed the following Issues: 1. “Whether the plaintiffs prove that the Laxmanrao @ Jivaji S/o Rangarao has relinquished his share in favour of plaintiff No.2 with the knowledge of defendant No.1? 2. Whether the plaintiffs prove that themselves and the defendant No.1 to 5 are jointly possessing the suit properties? 3. Whether the defendant No.1 to 5 prove that under Gift deed dated 27/11/1987, 25/10/1969 and compromise between Narayan Laxmibai, defendant No.1, defendant No.1 acquired ownership over Sy.No.547/4 of M.K.Hubli village and Sl.No.1, 2 and 4 to 9 of Schedule-B properties? 4. Whether the defendant No.2 proves the partition of the year 1985 pleaded in para No.7 of W.S. and partition of 1998 as pleaded in para No.9 of W.S.? 5. Whether defendants prove the partition of the year 1941 between Venkatesh A/F Krishnaji, Rangarao and Narayan pleaded in the W.S? - 10 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 6. Whether defendant No.6 and 7 prove that Schedule-C was the purchased property of Narayan? 7. Whether defendant No.6 and 7 proves that under Gift deed executed by defendant No.1 and Narayan, Smt.Laxmibai acquired ownership over schedule-C property Sy.No.6/4 of Basarkod village? 8. Whether defendant No.6 & 7 prove that Laxmibai bequeathed schedule-C property Sy.No.5, 6/2, 6/4 of Kittur to them and Sy.No.96/3B/2 to Vithal Devasthan under Will dated 16/07/1992? 9. Whether this suit is an off suit of O.S.No.79/04 on the file of Civil Judge (Jr.Dn) Bailhongal? 10. Whether plaintiffs are entitle for the relief claimed in para 19 of the plaint? 11. Whether plaintiffs are having ½ of share in the suit properties? 12. Whether plaintiffs proves that suit is well within time? 13. Whether suit filed by the plaintiffs is bad for non joinder of necessary parties? 14. Whether the defendant No.6 & 7 prove that the plaintiffs have not paid the proper court fee? - 11 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 15. Whether the plaintiffs prove that the suit filed by them is maintainable without cancellation of gift deed? 16. What order of decree?” 9. The Trial Court has dismissed O.S.No.37/2005 by holding that there was partition in the year 1941 and the properties allotted to Laxmanrao @ Jivaji are not included. Insofar as partition effected in the year 1985, whatever properties were allotted to Laxmanrao @ Jivaji, were got mutated in the name of plaintiff Nos.1 and 2 and plaintiff Nos.1 and 2 have not included the said properties. Therefore, the Trial Court has dismissed the suit, as the suit for partition is not maintainable. 10. In O.S.No.79/2004, the plaintiff, who is the son of Ramachandra Jamanis, has pleaded that Ranganath and Raghavendra have illegally got mutated the schedule properties of Laxmanrao @ Jivaji. But as per Clause-II legal heirs, the plaintiff and the children of Ramachandra are equally entitled to share as per Clause-II legal heirs of - 12 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 the Hindu Succession Act, 1956 (for short, ‘the Act, 1956’). But the Trial Court dismissed the suit, which is confirmed by the First Appellate Court. Therefore, the plaintiff in RSA No.5926/2011 has preferred the present regular second appeal. 11. In O.S.No.79/2004, the Trial Court has framed the following issues: 1. Whether the plaintiff proves that he is the member of the joint family of the plaintiff and defendants? 2. Whether plaintiff further proves that he has 1/10th share in the suit schedule properties? 3. Whether the defendant Nos.1 and 2 proves that the suit is bad for non-inclusion of the joint family properties of the plaintiff? 4. Whether the defendant Nos.1 and 2 proves that suit is bad for non-joinder of the necessary parties? 5. Whether the Court fee paid on the plaint is correct one? - 13 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 6. Whether the defendant Nos.1 and 2 prove that Laxman who is the brother of the father of the plaintiff has executed a relinquished deed in favour of the defendant Nos.1 and 2 in respect of the suit properties? 7. To what reliefs the parties are entitled? 8. What order or decree?” 12. The Trial Court has dismissed O.S.No.79/2004, which is confirmed by the First Appellate Court in R.A.No.25/2009. Therefore, these two appeals i.e., RFA No.3057/2011 and RSA No.5926/2011 are arising out of the impugned judgment and decrees respectively. 13. The learned counsel for the appellants/plaintiffs in RFA No.3057/2011 submitted that there was no partition in the year 1941 and Rangarao and Narayanrao were not allotted to any share in the schedule properties. Further also, there is no partition proved in the year 1985 and this is correctly held by the Trial Court, but wrongly dismissed the suit without being partition. Therefore - 14 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 submitted that though the Trial Court is justified in answering Issue No.4 in O.S.No.37/2005 that the defendants failed to prove that there was partition in the year 1985, but the Trial Court ought to have granted decree for partition, but not granted. Therefore, prays to allow regular first appeal. 14. The learned counsel for the appellants in RSA No.5926/2011 submitted that these appellants have been inherited the properties given to Laxmanrao @ Jivaji legitimately and considering this, the Trial Court and the First Appellate Court have dismissed the suit, which needs to be confirmed. Therefore, prays to dismiss the appeal. 15. On the other hand, the learned counsel for the respondents/defendants in RFA No.3057/2011 and learned counsel for the respondents in RSA No.5926/2011 submitted that there was partition in the year 1985 between Ramachandra, Laxmanrao @ Jivaji and Narasinhrao, which is correctly held in O.S.No.79/2004. - 15 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 Therefore, the judgment and decree passed in O.S.No.37/2005 need not be interfered with. Further submitted that the plaintiffs have filed suit in O.S.No.37/2005, is nothing but offshoot to the suit filed in O.S.No.79/2004. Therefore, O.S.No.37/2005 is filed with malafide intention. Further submitted that Laxmanrao @ Jivaji died issueless. Therefore, whatever properties given to his share, as per 1985 partition, will be inherited to the plaintiffs and defendant Nos.1 to 5 as per Clause-II legal heir of the Act, 1956. Therefore, prays to allow the regular first appeal. 16. The learned counsel Sri.S.K. Kayakmath appearing for the appellants in RSA No.5926/2011 submitted that Ranganath and Raghavendra have illegally mutated their names in respect of the properties allotted to Laxmanrao @ Jivaji. Therefore, Anant has filed the suit for partition on the properties allotted to the share of Lakshmanrao. The Trial Court without considering the fact that Anant is also one of the Class-II legal heirs and is - 16 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 entitled to share, has dismissed the suit. Therefore, prays to allow the regular second appeal. In RFA No.3057/2011: 17. Having heard arguments and on perusal of records, the following points that arise for consideration is: i) Whether, under the facts and circumstances involved in the case, defendant Nos.1 to 5 in O.S.No.37/2005, who are plaintiff and defendants No.3 to 6 in O.S.No.79/2004 prove the fact that there was partition in the year 1985 between Ramachandra (defendant No.1 in O.S.No.37/2005), Jivaji @ Lakshmanrao and Narasinhrao? ii) Whether the judgment and decree passed in O.S.No.37/2005 dated 05.03.2011 on the file of Senior Civil Judge, Bailhongal, requires any interference of this Court? iii) Whether the judgment and decree passed in O.S.No.79/2004 dated 18.07.2009 on the file of Principal Civil Judge (Jr.Dn), Bailhongal and R.A.No.25/2009 dated 27.07.2011 on the file of Presiding Officer Fast Track Court, Bailhongal, requires any interference of this Court? - 17 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 In RSA No.5926/2011: 18. Having heard arguments and on perusal of records, the following points that arise for consideration is: i) Whether, under the facts and circumstances involved in the case, defendant Nos.1 to 5 in O.S.No.37/2005, who are plaintiff and defendants No.3 to 6 in O.S.No.79/2004 prove the fact that there was partition in the year 1985 between Ramachandra (defendant No.1 in O.S.No.37/2005), Jivaji @ Lakshmanrao and Narasinhrao? ii) Whether the judgment and decree passed in O.S.No.79/2004 dated 18.07.2009 on the file of Principal Civil Judge (Jr.Dn), Bailhongal and R.A.No.25/2009 dated 27.07.2011 on the file of Presiding Officer Fast Track Court, Bailhongal, requires any interference of this Court? 19. These two appeals are considered in the background of pleadings, schedule properties and genealogies as described above. The fact that the genealogies produced by the plaintiffs in both suits are not disputed by the defendants in their respective suits and - 18 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 also, the nature of properties, which are ancestral properties, are also not in dispute. 20. It is contention of the counsel for the appellants/plaintiffs in O.S.No.37/2005 (defendants No.1 and 2 in O.S.No.79/2004) that there were no prior partitions and the properties are ancestral properties. 21. On the other hand, it is contention of the counsel for the defendants No.1 to 5 in O.S.No.37/2005 who are plaintiffs and defendants No.3 to 6 in O.S.No.79/2004 that, there was partition in the year 1941 and in the year 1985. Therefore, the suit properties are not ancestral properties. Further, it is case made out in O.S.No.79/2004 by the plaintiff in that suit that the suit schedule properties in that suit were earlier belonging to Laxmanrao @ Jivaji who died issueless. Therefore, the children of Ramachandra and Narasinhrao are entitled to equal share of 1/6th as per Class-II legal heir according to Hindu Succession Act, 1956. - 19 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 22. The trial Court has framed issue, as issue No.5 in O.S.No.37/2005 that whether there was partition in the year 1941, between Venkatesh adopted father of Krishnaji, Rangarao and Narayan as pleaded in the written statement. The trial Court has answered this issue No.5 holding that the partition took place in the year 1985 is proved. Ex.D2 is the mutation entry No.286 of Basarkod village, according to which, there was oral partition between Venkatesh, adopted father of Krishnaji, Rangarao and Narayan and that is reduced into writing and accordingly, varadi(report) was given to the revenue authorities that there was partition in the family. Accordingly, these three persons have received their respective shares and according to it, acted upon. Exs.D8 and D9 are the gift deeds dated 27.03.1973 that the said Narayan had gifted the properties which were fallen to his share to Ramachandra who is son of Rangarao. Therefore, the partition of the year 1971 was acted upon. The trial Court has correctly held this issue as the partition in the - 20 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 year 1941 is proved. Hence, the findings given in issue No.5 is found to be correct and justified as per the evidence on record. 23. The principal contention of the plaintiffs in O.S.No.37/2005 that there was no partition in the year 1985, the defendants in O.S.No.37/2005 at paragraph No.7 have taken pleading that there was partition in the year 1985 but documentary evidence is not produced before the trial Court. Therefore, the trial Court held while answering issue No.5 that, the partition in the year 1985 is not proved whereas, in the suit O.S.No.79/2004, the very same issue involved regarding proving the partition of the year 1985 in O.S.No.79/2004 and the trial Court held that the partition in the year 1985 was proved in O.S.No.79/2004. Thereafter, the document regarding partition took place in the year 1985 is produced as per Ex.P6, M.E.No.10186. In O.S.No.79/2004, the plaintiffs in O.S.No.37/2005 were defendant No.1 and defendant No.2 and have filed their written statement by specifically - 21 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 taking contention that there was partition in the year 1985. Therefore, the plaintiffs in O.S.No.37/2005 have taken contra stand as that of pleading taken in O.S.No.79/2004. The counsel for the appellants in Regular First Appeal (plaintiffs in O.S.No.37/2005) has produced memo along with certified copy of M.E No.10186 and the Court by exercising its power under Order 41 Rule 27 of CPC, this document is treated as an additional evidence as it is relevant to decide the lis between the parties for pronouncing the judgment on substantial cause. Therefore, the document–M.E.No.10186 is received and considered as additional evidence in the appeal in RFA No.3057/2011 as per Order 41 Rule 27 of CPC. 24. According to this documentary evidence, M.E.No.10186 and the same is produced in O.S.No.79/2004 as per Ex.P6 that there was oral partition in the year 1985 and the same is reduced into writing, accordingly a varadi (report) was given to the revenue authorities. Accordingly, the partition was entered in the - 22 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 M.E. No.10186 dated 28.11.1985. As per this M.E.No.10186, the following lands were partitioned between Ramachandra, Laxmanrao and Narasinhrao. !"#$% &'( )) * +,-% . $/ 01 23"34 23"5+6 + "# 7" "89- :;8 :<;8 :<;: = => =>> *=? =>> =: , @.A"B 84 =* *=<: :; :<;* :<; :<;" => =* >=> := *=> := >=C =: ,!"#$%&'()) @.A "B84 <=C = :? :<;5 :<; =< :=> => :=: => *=<> ,+,-% @.A"B 84 <=*? >=C D"06. 2"# 23"57"! 25!9EF1(G "HI"! 25. Upon appreciating the documentary evidence- Ex.P6 and additional documentary evidence M.E. No.10186, it is proved that Ramachandra, Laxmanrao and Narasinhrao were given their respective shares as above - 23 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 described. Since, this documentary evidence is not produced in O.S.No.37/2005, therefore, the trial Court held that the partition of the year 1985 is not proved. But with this, the very same document is produced in the suit in O.S.No.79/2004. Therefore, in O.S.No.79/2004, it is held affirmative that the partition of the year 1985 is proved. Therefore, upon appreciating the evidence on record, it is proved that there was prior partition in the year 1985 between Ramachandra, Laxmanrao and Narasinhrao. 26. Further, upon considering the suit schedule properties concerned, the plaintiffs in O.S.No.37/20005 have not included the properties in the suit which have been fallen to the share of Laxmanrao. As per plaintiffs case, the lands which were allotted to Laxmanrao, these plaintiffs have got mutation entries in the revenue records pertaining to the properties which were given to share of Laxmanrao on the very same day, on the death of Laxmanrao dated 06.10.1994. On the very same day, - 24 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 these plaintiffs have got mutated their names in the said properties which were given to the share of Laxmanrao. But these properties are not included in the suit for partition, only the properties which were given to the share of Ramachandra and Laxmanrao are included for partition. Therefore, in this regard, there is no merit found in O.S.No.37/2005 so as to pass decree for partition and the trial Court has rightly dismissed the suit. 27. Learned counsel for the appellant relied on judgment of this Court, during the course of hearing, in the case of Niroop D.J. V/s D.A. Jayarame Gowda and Others1, has argued that suit for partial partition is not maintainable. The facts and circumstances in the above cited case and in the present case are different. Therefore, this citation is not applicable in the present case. It is more so, applicable that the plaintiffs in O.S.No.37/2005 have not included the properties shared to Laxmanrao in the suit. Therefore, this very citation is applicable to 1 HCR 2024 Kant. 21 - 25 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 answer the contention taken by appellants/plaintiffs in O.S.No.37/2005. 28. Insofar as the suit schedule properties are concerned in O.S.No.79/2004, these properties are shares given to Laxmanrao in the partition took place in the year 1985 as per Ex.P6 and additional documentary evidence as above discussed. Admittedly, the schedule properties in O.S.No.79/2004 were fallen to the share of Laxmanrao as per partition took place in the year 1985 and Laxmanrao died issueless. Therefore, these properties were to be inherited to the legal heirs of Ramachandra and Narasinhrao as Class-II legal heir of Schedule No.I of Hindu Succession Act. Since, defendant No.1 in O.S.No.37/2005 died during the pendency of the appeal, therefore, defendants No.2 to 5 and plaintiffs No.1 and 2 in O.S.No.37/2005 are entitled to equally 1/6th share each in the schedule properties in O.S.No.79/2004. Therefore, in O.S.No.79/2004 in R.A.No.25/2009 both trial Court and First Appellate Court have committed error in appreciating - 26 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 these evidence on record as discussed above. Therefore, the RSA No.5926/2011 is liable to be allowed in part. 29. Accordingly, in RFA No.3057/2011, I answer points No.(i) and (iii) in the “affirmative” and point No.(ii) in the “negative”, and in RSA No.5926/2011, I answer points No.(i) and (ii) in the “affirmative”, the substantial question of law is answered that there was partition in the year 1985. 30. Hence, I proceed to pass the following: ORDER i. RFA No.3057/2011 is dismissed. ii. The judgment and decree passed in O.S.No.37/2005 dated 05.03.2011 on the file of Senior Civil Judge, Bailhongal, is hereby confirmed. iii. RSA No.5926/2011 is allowed in part. iv. The judgment and decree dated 18.07.2009 passed in O.S.No.79/2004 on the file of Principal Civil Judge (Jr.Dn), - 27 - HC-KAR NC: 2025:KHC-D:8465 RFA No. 3057 of 2011 C/W RSA No. 5926 of 2011 Bailhongal, which is confirmed by the judgment and decree dated 27.07.2011 passed in R.A.No.25/2009 on the file of the Presiding Officer, Fast Track Court, Bailhongal, is modified to the extent that the plaintiffs in O.S.No.79/2004 is entitled to 1/6th share in suit schedule properties in O.S.No.79/2004 by metes and bounds. v. Draw decree accordingly. vi. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP-para 1 to 18 RKM-para 19 to end CT:BCK List No.: 1 Sl No.: 27