- 1 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100009 OF 2018 (PAR/POS-) BETWEEN: 1. SRI. RAGHAVENDRA S/O HONNAPPA KANNANAYAKAR, AGE: 34 YEARS, OCC: JOB, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 2. SRI. DODDABHARAMAPPA S/O SHIVAPPA KANNANAYKAR, AGE: 60 YEARS, OCC: AGRIL, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581110. 3. SRI. SANNABASAPPA S/O SHIVAPPA KANNANAYKAR, AGE: 56 YEARS, OCC: AGRIL, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581 110. …APPELLANTS (BY SRI. DINESH M KULKARNI, ADV) AND: 1. SMT. HONNAMMA W/O HANAMANTHAPPA KOOLER, AGE: 56 YEARS, OCC: HOUSE HOLD R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581 110. 2. SMT. GIRIJAMMA W/O DHARMAPPA MULIMANI, AGE: 56 YEARS, OCC: HOUSE HOLD R/O: KUPPELUR, TQ: RANEBENNUR, DIST: HAVERI-581 110. 3. SMT. SHANTHAVVA W/O KRISHNAPPA MULIMANI, AGE: 52 YEARS, OCC: HOUSEHOLD R/O: KUPPELUR, TQ: RANEBENNUR, DIST: HAVERI-581110. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.10 12:20:50 +0530 - 2 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 4. SHAMBU S/O HANAMANTHAPPA MULIMANI, AGE: 49 YEARS, OCC: TEACHER R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581 110. 5. SHANKRAPPA S/O HANUMAPPA, AGE: 49 YEARS, OCC: TEACHER R/O: NITTUR, NOW @ CHIKKALLA, DIST: SHIMOGA-577 201. 6. SMT. SUSHILAMMA W/O NAGAPPA KANNANAYAKAR, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 7. SMT. SUJATA D/O K. NAGAPPA KANNANAYAKAR, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 8. MANOHAR S/O K. NAGAPPA KANNANAYAKAR, AGE: 49 YEARS, OCC: BUSINESS, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 9. VASU S/O. K. NAGAPPA KANNANAYAKAR, AGE: 47 YEARS, OCC: BUSINESS, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 10. BABY D/O K. NAGAPPA KANNANAYAKAR, AGE: 47 YEARS, OCC: BUSINESS, R/O: MRUTYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 11. 11a. SMT. SUNDRAMMA W/O SOMAPPA AMARAVATHI, SINCE DECEASED BY HER LR’S., SHRI. UIJAPPA S/O SOMAPPA AMARAVATHI AGE: 70 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR - 3 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 11b. 11c. 11d. 11e. 11f. 11g. 11h. 11i. DIST. HAVERI. SMT. HIRIYAVVA W/O SANNABHARAMAPPA KANNANAIKAR, AGE: 65 YEARS, OCC: COOLIE, R/O: NITTUR, TQ. RANEBENNUR, DIST. HAVERI. SHIVAPPA S/O SOMAPPA AMARAVATHI AGE: 60 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. PARAVVA S/O CHANNABASAPPA AMARAVATHI AGE: 70 YEARS, OCC: COOLIE R/O: ASUNDI, TQ. RANEBENNUR DIST. HAVERI. KARABASAPPA S/O SOMAPPA AMARAVATHI AGE: 54 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. RUDRAPPA S/O SOMAPPA AMARAVATHI AGE: 40 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. SHANKRAPPA S/O SOMAPPA AMARAVATHI AGE: 35 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. SUDHA D/O SOMAPPA AMARAVATHI AGE: 32 YEARS, OCC: HOUSEHOLD R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. LALITA D/O SOMAPPA AMARAVATHI AGE: 30 YEARS, OCC: COOLIE R/O: HALAGERI, TQ. RANEBENNUR DIST. HAVERI. BASAPPA S/O SHIVAPPA KANNANAYAKAR, (SINCE DEAD BY HIS LRS) - 4 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 12. SMT. NAGAMMA W/O BASAPPA KANNANAYAKAR, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581110. 13. MANJAPPA W/O BASAPPA KANNANAYAKAR, AGE: 34 YEARS, OCC: PVT. JOB, R/O: NITTUR, TQ: RANEBENNUR. 14. SMT. NETRAVATHI W/O SURESHAPPA BALLARI, AGE: 28 YEARS, OCC: HOUSEHOLD, R/O: KARJAGI, TQ: RANEBENNUR, DIST: HAVERI-581110. 15. KUMAR S/O BASAPPA KANNANAYAKAR, AGE: 30 YEARS, OCC: AGRIL, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581 110. 16. SMT. KAVITHA W/O KARBASAPPA KANNANAYALKAR, AGE: 29 YEARS, OCC: GOVT. JOB IN HEALTH DEPARTMENT, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581110. 17. SMT. PARAMMA @ SHAKUNTALA W/O HONNAPPA KANNANAYAKAR, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O: MRITYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 18. BABY D/O HONNAPPA KANNANAYAKAR, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O: MRITYUNJAY NAGAR, TQ: RANEBENNUR, DIST: HAVERI-581110. 19. SMT. GOURAMMA W/O HANUMANTHAPPA MARALASIDDAPPANAVAR, AGE: 59 YEARS, OCC: HOUSEHOLD, R/O: HOLESIRAGERI, TQ: HARIHAR, DIST: DAVANAGERE-577601. 20. MALIYAPPA S/O HEMAPPA MAGANUR, AGE: 54 YEARS, OCC: AGRIL, - 5 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI-581110. 21. 21a. 21b. 21c. 21d. SHIVAPPA S/O BASAPPA KARJAGI, SINCE DECEASED BY HIS LRS., SMT. NAGAVVA W/O SHIVAPPA KARJAGI AGE: 68 YEARS, OCC: HOUSEHOLD, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI. SHRI. MANJAPPA S/O SHIVAPPA KARJAGI AGE: 48 YEARS, OCC: AGRIL, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI. BASAVARAJ S/O SOMAPPA KARJAGI AGE: 46 YEARS, OCC: AGRIL, R/O: NITTUR, TQ: RANEBENNUR, DIST: HAVERI. JAYAMMA W/O GADIGEPPA MENASINAHAL AGE: 36 YEARS, OCC: HOUSEHOLD, R/O: ASUNDI, TQ: RANEBENNUR, DIST: HAVERI. …RESPONDENTS (BY SRI. S.N. BANAKAR, ADV FOR R1 TO R5; SRI. RAMESH B. CHIGARI, ADV FOR R6 TO R10; SRI. S.K. KAYAKAMATH, ADV FOR R20; SRIYUTHS. M.H. PATIL AND HARSHAWARDHAN M. PATIL, ADVS FOR R21(b & c); NOTICE TO R11(A TO C, E, G & I), R12 TO R16, R19, R21(A) ARE SERVED; NOTICE TO R17 & R18 ARE HELD SUFFICIENT) THIS IS RFA FILED UNDER ORDER 41 RULE 1 OF C.P.C. READ WITH SECITON 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:16.09.2017 PASSED IN O.S.NO.82/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, RANEBENNUR, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. 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 - 6 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. This Regular First Appeal is filed by the appellants, challenging the judgment and preliminary decree dated 16.09.2017 passed in O.S. No.82/2013 by the learned II Additional Senior Civil Judge, Ranebennur. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were defendant Nos.9, 12 and 13, respondent Nos.1 to 5 were the plaintiffs, and respondent Nos.6 to 21 were the other defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The Plaintiffs filed a suit against the Defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that one Doddabharamappa Talavar @ Kanna Nayak was the original propositus of the family. He had a wife by name Kariyavva. They had two sons by name Shivappa and Kannappa. - 7 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 Kannappa had a wife by name, Nagamma. Kannappa died on 26.06.1977 leaving behind his wife Smt. Nagamma. Nagamma and Kannappa died leaving behind Siddamma, Honnamma- plaintiff No.1, Girijamma-plaintiff No.2, Shanthavva-plaintiff No.3. Shambhu- Plaintiff No.4 and Shankrappa- 5 are the children of Siddamma. Shivappa had a wife by name Ningamma. They had 7 children i.e., Nagappa, Sundramma-defendant No.6, Basappa- defendant No.7, Honnappa–Defendant No. 11, Gouramma, Doddabharamappa–Defendant No. 12 and Sannabharamappa. Honnappa had a wife by name Shakuntala – Defendant No. 8, and they have a children by name, Raghavendra- Defendant No 9 and Baby – Defendant No. 10. Defendant Nos.1 to 5 are the legal heirs of the deceased Nagappa. It is contended that suit schedule A-2( 1 and 2) properties are purchased out of joint family nucleus and on behalf of the family. It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and they constitute a Hindu joint family, and no partition is effected - 8 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 between them. The plaintiffs demanded a partition and separate possession. The defendants refused to affect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.9 filed a written statement. The Same was adopted by defendant Nos.12 and 13. It is contended that Shivappa acquired suit schedule A-3 (1, 2, 5, 6 and 7) properties under a court award. It is his self acquisition. During 1980, the sons of Shivappa have divided the properties. In the said partition, schedule A-3(4 and 8) fell to the share of Basappa, the western portion measuring 2 acres 29 guntas in Sy.No.52/1+4/2 fell to the share of Honnappa and the same extent on an eastern side fell to the share of Nagappa, suit schedule A-1(7) fell to the share of Doddabharamappa and Sannabharamappa, and Shivappa got 2 acres 12 guntas of the land in Sy.No.91. Basappa, Honnappa and Nagappa have divided Sy.No.52/3. Accordingly, M.E. No.1155 was accepted. After the partition, the sons of Shivappa have exchanged some properties - 9 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 among themselves. Further, the plaintiffs have nothing to do with the transactions. Suit schedule A-3(3) is the self acquisition of Basappa and Honnappa. They acquired the same in the compromise held in R.A. No.68/2008. It is contended that suit schedule A-2(1) is the self acquisition of Honnappa, acquired out of his own income. The suit is bad for partial partition. The branch of Kannappa has no right, title or interest in the suit schedule properties. Hence, prays to dismiss the suit of the plaintiffs. 6. The trial Court, based on the pleadings of the parties, framed the following issues: ISSUES 1. Whether the plaintiffs prove the correctness of the genealogy furnished in schedule 'B' of the plaint? 2. Whether the plaintiffs proves that, the schedule 'A' properties are the Joint family properties of themselves and defendant No-1 to 13? 3. Whether the plaintiffs further prove their alleged joint possession over the suit properties along with defendant No-1 to 13? 4. Re-casted Issue: Whether the plaintiffs proves that, suit schedule A-2 (1 & 2) properties were purchased with the aid of ancestral nucleus? - 10 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 5. Whether the defendant No-9 proves that, the suit of the plaintiffs is bad for non-joinder and mis-joinder of necessary parties? 6. Whether he further proves that, schedule A(3) item No-1, 2, 5 to 7 properties were the self-acquired properties of deceased Shivappa contended in para- 6 of his written as statement? 7. Whether he further proves the subsequent division in the year 1980 between Shivappa and his sons and the alleged allotment of shares in the suit schedule A(3) properties as contended in paras 7 to 9 of his written statement? 8. Whether he further proves that, schedule A (2) 1 property was self acquired property of the husband of 8th defendant? 9. Whether the 9th defendant further proves that, the partition of the year 1980 has been duly acted upon by all the parties as contended in para 11 of the written statement? 10. Whether he further proves that, the suit of the plaintiffs is barred by limitation? 11. Whether the plaintiffs are entitled to seek the suit reliefs? 12. What order or decree? 7. The plaintiffs, to substantiate their case, plaintiff No.4 was examined as PW.1, 2 witnesses were examined as PWs.2 and 3, and marked 24 documents as Exs.P-1 to P-24. In rebuttal, defendant No.13 examined himself as DW.1 and - 11 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 defendant No.9 was examined as DW.2, and marked 28 documents as Exs.D1 to D-28. 8. The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue No.1 and 8 in the affirmative, issue Nos.2, 3 and 11 partly in the affirmative, re-casted issue No.4, issue No.5, 6 and 10 in the negative, issue Nos.7 and 9 does not survive for consideration, and issue No.12 as per the final order. The suit of the plaintiff was partly decreed vide judgment dated 16.09.2017. It is declared that the plaintiffs are jointly entitled to a partition and separate possession of ½ share in the suit schedule A- 1(1 to 4) and suit schedule A-3(1 to 8) properties. Defendant Nos.1 to 13 are jointly entitled to a partition and separate possession of a half share in the suit schedule A- 1(1 to 4) and suit schedule A-3(1 to 8) properties and the suit was dismissed against the suit schedule A-2 (1 and 2) properties. It is also held that defendant Nos.14 and 15 are entitled to the share of their vendor by way of equitable partition during the final decree proceedings. Defendants - 12 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 No.9, 12 and 13, aggrieved by the judgment and preliminary decree passed in O.S. No.82/2013 preferred this instant appeal. 9. Heard the arguments of the learned counsel for defendant Nos.9, 12 and 13, the learned counsel for the plaintiffs, and the learned counsel for the other defendants. 10. Learned counsel for defendant Nos.9, 12 and 13 submits that defendant No.9 and 13 have led the evidence and produced the documents however, the trial Court has not considered the documents produced by the defendants. He submits that entire judgment passed by the trial court is without appreciation of the entire evidence on record and it is a general expression. The judgment and decree passed by the trial Court is not in compliance with the provisions of Order XX Rule 5 of the Code of Civil Procedure. Hence, the matter requires fresh consideration by the trial Court. Hence, on these grounds, he prays to allow the appeal and set aside the judgment and preliminary decree passed by the trial Court, and remit the matter to the trial Court with a - 13 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 direction to the trial Court to assign reasons to the issues framed by it. 11. Per contra, learned counsel for the plaintiffs supported the impugned judgment, and submits that the trial Court has considered the entire evidence on record and passed the impugned judgment. Accordingly, prays to dismiss the appeal. 12. Learned counsel for the other defendants adopted the arguments of the learned counsel for defendant Nos.9, 12 and 13. 13. Perused the records, and considered the submissions of the learned counsel for the parties. 14. The points that would arise for consideration in this appeal are as follows: (i). Whether defendant Nos.9, 12 and 13 prove that the judgment and preliminary decree passed by the trial Court is not in compliance with the Order XX Rule 5 of the Code of Civil Procedure? (ii). What order or decree? - 14 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 15. Point No.(i): The plaintiff filed a suit for partition and separate possession contending that the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The plaintiffs and the defendants are the members of the Hindu undivided family and no partition is effected between the parties to the suit. The plaintiffs demanded a partition and separate possession but the defendants refused to affect a partition. The plaintiffs to substantiate their case, plaintiff No.4 was examined as PW.1, examined 2 witnesses as PWs.2 and 3 and marked 24 documents. In rebuttal, defendant No.13 was examined as DW-1 and defendant No.9 was examined as DW.2 and produced 28 documents marked as Ex.D-1 to EX. D-28. 16. From the perusal of the judgment passed by the trial Court, the trial Court has not considered the entire evidence led by the parties properly. The trial Court must consider and appreciate the entire evidence on record. The judgment of the Court shall contain the statement of the case, the points for determination, the decision there on, and the reasons for such decision. Admittedly, in the instant - 15 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 case, the trial Court has not assigned any reasons for discarding the evidence of DWs.1 and 2 and also not discussed the evidence of PWs.2 and 3. Further, the defendants have produced 28 documents. The trial Court has not considered the documents produced by the defendants except, Ex.D-22 i.e. the certified copy of the order sheet in R.A. No.68/2008 and the compromise petition filed in the suit marked as Ex.D-23. Defendant No.9 has raised several grounds contending that the properties were purchased by the defendants. To prove that the defendants have purchased the property in the Court proceedings, produced Ex.D-9 to 16, which are the mutation extracts. There is no whisper by the trial Court regarding the documents produced as Exs.D1 to D-21 and also regarding the documents produced by the plaintiffs. The trial Court has not considered the evidence of PWs.2, and 3, the documents produced by the plaintiffs, the evidence of DWs.1 and 2 and the documents marked by the defendants. The trial Court has not appreciated the entire evidence on record. The judgment and decree passed by the trial Court is not in - 16 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 compliance with the provisions of Order XX Rule 5 of the CPC. Hence, on these grounds itself, the impugned judgment is liable to be set aside. 17. In view of the above discussion, I answer point No.(i) in the affirmative. 18. Point No.(ii): In view of the above discussion, I proceed to pass the following: ORDER i. The Appeal is allowed. ii. The judgment and preliminary decree dated 16.09.2017 passed in O.S. No. 82/2013 by the learned II Additional Senior Civil Judge, Ranebennur, is set aside. iii. O.S.No.82/2013 is restored to its original file. The trial Court is directed to consider the entire evidence on record, and pass appropriate judgement in accordance with Order XX Rule 5 of the CPC. iv. It is made clear that this Court has not made any adjudication on the merits in issue. - 17 - HC-KAR NC: 2025:KHC-D:10106 RFA No. 100009 of 2018 v. The parties are directed to appear before the trial Court on 27th October 2025 without awaiting any further notice. vi. All the contentions of the parties are kept open. vii. The office is directed to transmit the records to the trial Court, forthwith. viii. In view of the disposal of the appeal, pending I.A’s, if any, shall stand disposed of. Sd/- (ASHOK S. KINAGI) JUDGE kmv CT: BSB