- 1 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH 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. 100264 OF 2018 (PAR/POS) BETWEEN: 1. GOVIND S/O SADASHIVA SHETTI, AGED: 73 YEARS, OCC: AGRICULTURE, R/O: AJJIKATTA, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. 2. PRAMOD S/O SADASHIVA SHETTI, AGED: 71 YEARS, OCC: RETIRED EMPLOYEE, R/O: AJJIKATTA, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. NOW RESIDING AT BENGALURU-01. 3. RAJANI D/O SADASHIVA SHETTI, AGED: 69 YEARS, OCC: HOUSEHOLD, R/O: AJJIKATTA, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. 4. ONAM S/O SADASHIVA SHETTI, AGED: 65 YEARS, OCC: AGRICULTURE, R/O: AJJIKATTA, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. 5. VASANTH S/O SADASHIVA SHETTI, AGED: 65 YEARS, OCC: AGRICULTURE, R/O: AJJIKATTA, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.03.15 11:31:02 +0530 - 2 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314, NOW RESIDING AT: BENGALURU. …PETITIONERS (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: 1. MANOHAR S/O SHANKAR SHETTI AGED: 59 YEARS, OCC: AGRICULTURE, R/O: AMBARKODLA,TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. 2. BABA MUSA U.K. MOHAMMED, AGED: MAJOR, OCC: NOW KNOWN, R/O: SHEDAGERI, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. 3. SNEHA MANOHAR SHETTI, @ SNEHA BOMMAYYA NAIK, AGED: 24 YEARS, OCC: HOUSEHOLD, R/O: SHEDAGERI, TQ: ANKOLA, DISTRICT: UTTARA KANNADA-581314. …RESPONDENTS (BY SRI. J S SHETTY AND SMT.DEEPA UDIYAR, ADVOCATES) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:09.04.2018 PASSED IN O.S.NO.29/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AT ANKOLA, PARTLY DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M. ADIGA) This is plaintiffs' appeal against the judgment and decree dated 9th April 2018, passed by the learned Senior Civil Judge, Ankola, (for short, `trial Court’), in O.S.No.29/2017. The plaintiffs have filed the suit for partition and separate possession of their share in the suit schedule properties. The said suit was dismissed by the learned trial Judge by the impugned judgment. The same is challenged in the present appeal. 2. We refer to the parties according to their rankings before the trial Court. 3. Brief facts of both parties are that : It is the case of plaintiffs/appellants that their great grandmother was one Smt.Shanteri wife of Gidda Shetty. She had two daughters by name Malamma and Parvathi. Malamma was married to Nagappa Shetty and they had no issues. Another daughter by name Parvathi had a - 4 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 daughter and two sons by name Kaveri, Sadashiva and Shankar. Plaintiffs are sons of Sadashiva. Sadashiva had two daughters by name Rajini and Pushpa. Another son of Parvathi was Shankar and he had a daughter and a son by name Vasanthi and Manohar. The said Manohar is defendant No.1, his wife is defendant No.3. The defendant No.2 is purchaser of a portion of suit property from defendant No.1. 4. Smt.Shanteri, the great-grandmother of plaintiffs died intestate on 02.12.1953, leaving her property to succeed by her daughters Smt.Malamma and Smt.Parvati. According to Hindu Succession Act, 1956, both of them succeeded to the properties left by Smt.Shanteri. All the properties held by her i.e., properties situated at Shedegeri village of Ankola Taluk and Ankola Village of Ankola Taluk were mutated in the name of Mallamma in the M.E.No.2599, dated 01.04.1962 since she was elder daughter. She was not absolute owner of the said properties. After the death of Malamma, as well as - 5 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 Parvathi, her legal heirs succeeded to those properties and they have been enjoying the same as a joint family property. The said Malamma died intestate on 26.12.1967 and she had no issues. Therefore, plaintiffs and defendants are jointly enjoying the said properties. Plaintiff Nos.2, 3 and 5 were not residing in the village. Defendants never interfered in the peaceful possession and enjoyment of the suit schedule properties by the plaintiff. 5. It is further contended that during August 2015, an attempt was made by the defendants to start lorry servicing and repair industry in the suit property. The plaintiff No.4 enquired with defendant No.1 as to what he was doing in the suit schedule property. At that time, defendant No.1 contended that the suit properties are belonging to him and plaintiffs have no right over the said properties. Thereafter, plaintiff No.4 obtained the copies of the revenue records and found that defendant No.1 sold a portion of the property in the name - 6 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 of defendant No.2 and defendant No.1 transferred some of the properties in the name of his daughter - defendant No.3 and all the said transactions are illegal and without consent of the plaintiffs. 6. It is also contended that Smt.Malamma did not execute any Will in favour of any person and she had no occasion to execute such Will. All the suit schedule properties are joint family properties and have been jointly possessed and enjoyed by all the members of the family. The said Malamma had no right to execute the Will. Defendant No.1 and his father with an intention to gulp the property belonging to the joint family, have created certain documents and by virtue of the said documents, they are claiming that they are owners of the suit schedule properties. 7. It is further contended by the plaintiffs that, on further verification of the records, they also found that defendant No.1 had taken huge amount of loan by creating charge over the suit schedule properties, without - 7 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 the consent or permission or knowledge of the plaintiffs. He also sold the property in favour of defendant No.2 and transferred the property in favour of defendant No.3. Therefore, the plaintiffs were constrained to file the suit. With these reasons, plaintiffs prayed for partition and separate possession of their half share in the suit schedule properties. 8. The defendant No.1 has contended that his father late Shankar Govind Shetty filed O.S.No.21/1973 before the Munsiff Court, Karwar, against Sadashiv Govind Shetty and Govind Sadashiv Shetty for the relief of permanent injunction in respect of the property situated at Ankola Taluk, Shedgeri village, bearing Survey No.55A1A/3A, measuring 1 acre 10 guntas. The said suit came to be dismissed. The said Shankar filed an appeal against the judgment and decree passed in O.S.No.21/1973 in R.A.No.259/1973, before the Senior Civil Judge's Court at - 8 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 Karwar and it was also dismissed by the learned Senior Civil Judge. 9. It is further contended that Defendant No.1 herein Manohar Shankar Shetty had filed OS No.81/1978 before the Munsiff Court, at Karwar, against Sadashiv Govinda Shetty and Govinda Sadashiv Shetty for the relief of permanent injunction in respect of Survey No.55A1A/3A, measuring 1 acre 10 guntas. After the establishment of Munsiff Court at Ankola, the said suit was transferred to Munsiff Court, Ankola, and it was renumbered as O.S.No.57/1981. The said Manohar Shankar Shetty withdrew O.S.No.57/1981 with permission to file a fresh suit on the same cause of action on 21.11.1985. 10. It is further contended by defendant No.1 that Govind Sadashiv Shetty and Onam Sadashiv Shetty have filed O.S.No.10/1986 against Manohar Shankar Shetty and Shankar Govind Shetty (defendant No.1 and his father) before Munsiff Court, Ankola, for permanent injunction relating to property bearing Survey No.55A/2, measuring - 9 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 5 guntas and Survey No.55A1A/3B, measuring 10 guntas. The said suit was dismissed on 11.04.1986 as per the memo filed by the plaintiff of that suit, stating that the said suit was settled out of Court. It is further contended by defendant No.1 that the lands belonging of plaintiffs and defendant No.1 are situated adjacent to each other. In view of the said fact, plaintiffs are well aware about the acquisition of land by defendant No.1. Under these circumstances, the suit is hopelessly barred by time. 11. Defendant No. 1 has further contended that Smt.Malamma, wife of Nagappa Shetty, had executed a Will dated 12.09.1962 in favour of defendant No.1 and she died on 26.12.1967. By virtue of the said Will, defendant No.1 became absolute owner of Survey No.55A1A-3A, measuring 1 acre 10 guntas, Survey No.55A1A-3B, measuring 10 guntas and Survey No.55A/2, measuring 5 guntas (non-agriculture land). Mallamma purchased the said lands under Registered Sale Deed dated 23.11.1953 - 10 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 from Smt.Shanteri wife of Gidda @ Subraya Laxman Shetty. Hence she had every right to execute the Will and bequeath her properties in favour of others. The said Malamma, out of love and affection and out of sound disposing state of mind, voluntarily had executed the Will in favour of defendant No.1 and plaintiffs have no right over the said properties. The suit is filed just to blackmail and harass defendant No.1. With these reasons, defendant No.1 prayed to dismiss the suit with costs. 12. From the rival contentions of the parties, the trial Court framed following issues : 1. Whether the plaintiffs prove that the suit schedule properties are joint family ancestral property of plaintiffs and defendants? 2. Whether the plaintiffs further prove that they have 1/2 joint right in suit schedule property? 3. Whether the defendants prove that suit is barred by limitation and principle of estoppel and acquiescent due to previous suit between same parties? 4. Whether defendant no.1 proves that suit property is self-acquired properties of late Malamma - 11 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 and she had bequeathed the same in favour of defendant as per will dated 12.19.1962 in sound disposing state of mind? 5. Whether the defendant proves that Occupancy right was granted by the Land Tribunal relating to Sedgeri Survey No. 55A1A/3A, area 1 Acre 10 guntas and Survey No. 55A1A/3B, area 10 guntas considering his possession which was never challenged by the defendants? 6. Whether the plaintiffs are entitled for the relief of partition and separate position as prayed for? 7. What order or decree? 13. The plaintiffs to prove their case, examined plaintiff No.5 as PW-1 and got marked Exs.P-1 to P-18. Defendant No. 1 was examined as DW-1 and got marked documents from Exs.D-1 to D-29. 14. The learned trial Judge after hearing both parties and appreciating the pleadings and evidence available on record, answered issue Nos. 1, 2, 4, 5 and 6 in the negative, issue No.3 as “does not arise for consideration” - 12 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 and issue No.7 is answered and the suit was dismissed by the impugned judgment and decree. 15. We have heard the arguments of learned counsels appearing for both parties and perused the materials on record. 16. The learned counsel for appellants submits that plaintiffs in detail have stated about the genealogy of the family and mode of acquisition of the properties by the joint family. In the written statement, the said pleadings were not specifically denied by the defendants. The learned trial Judge did not consider the oral and documentary evidence produced by the plaintiffs and the learned trial Judge mainly dismissed the suit on the basis of previous litigations. 17. The learned counsel for the appellants further submits that previous litigations were filed by both the parties to the suit and the said suits were for the relief of permanent injunction. The first suit was filed by first defendant's father against father of the plaintiffs and the - 13 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 said suit was dismissed and appeal was also dismissed. Thereafter both plaintiffs as well as defendant No.1 filed one suit each and the said suit was later on withdrawn as settled out of the Court. Therefore, the pleadings and evidence led in the cases will not affect the rights of the present plaintiffs for claim petition. 18. He further submits that the earlier suit was filed prior to coming into force of Land Reforms Act and at that point of time, the rights of the parties over Survey No.55 was leasehold right and were not absolute owners. It was mulageni/permanent lease. After coming into force of Land Reforms Act, the occupancy right was granted in favour of parties to the suit in respect of the tenanted lands. Thus, the family of the plaintiffs and defendant No.1 became owner of the said properties. Therefore fresh cause of action arose to the plaintiffs to file a suit for partition and separate possession. The learned trial Judge has not considered the said facts. - 14 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 19. The learned counsel for appellants further submits that in the cross-examination of DW-1, deliberately DW-1 pleads ignorance to each and every questions asked to him. Therefore, evidence of such witnesses is not at all acceptable. Even he pleads ignorance about the Will executed by Smt.Malamma. According to contents of the Will, he was aged about two years at the time of execution of the Will. There is no reference as to the special reasons to Malamma to execute will in favour of Defendant No. 1. He further submits that the said Will produced before the Court was incomplete Will and there is no explanation in this regard. 20. He further contends that since the suit scheduled properties are not absolute properties of Smt.Malamma, she had no right to execute the Will. The learned trial Judge has not considered these facts. More or less the suit was dismissed only on the ground of previous litigations. The said findings of the trial Court is erroneous illegal and arbitrary. The trial Court did not consider any - 15 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 of the documents produced by both the parties. Therefore submits that in view of the reasons mentioned in the appeal memo, the impugned judgment was to be set aside and suit be decreed as prayed in the plaint. 21. The Learned council for the defendants submits that the learned trial Judge has properly considered case of both the parties and rightly dismissed the suit and it does not call for any interference. The learned Counsel for defendants further submits that the pleadings of the plaintiffs are not consistent in the previous litigations as well as in the present litigation. In the previous litigation, they contended that Survey No.55 was absolute property of defendant No.1 and his father. In the present case, they contends that it is a joint family property. Therefore, both the contentions of the plaintiffs are inconsistent and self- destructive. 22. He further submits that Smt.Malamma was the absolute owner of the said property and she had purchased Survey No.55 from Gidda Shetty under - 16 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 registered Sale Deed of the year 1953. Thereafter, when she was in sound disposing state of mind, she executed a registered Will in favour of defendant No.1 out of love and affection over him and these facts were specifically mentioned in the Will. The defendant No.1 has produced the original Will before the Court and it was thirty years old document. Therefore, it has got a legal presumption under Section 90 of the Indian Evidence Act. Considering all these facts, the learned trial Judge has rightly dismissed the suit and it does not call for any interference. Therefore, pray to dismiss the appeal. 23. The following points emerge for our determination: (i) Whether the learned trial Judge erred in not holding that suit properties are ancestral and joint family properties of plaintiffs and defendant No.1? (2) Whether the learned trial Judge erred in rejecting the claim of the plaintiffs on the basis of previous litigations between the same parties? - 17 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 (3) Whether the findings of the learned trial Judge is arbitrary, perverse and illegal and interference by this Court is required? (4) What order or decree? We answer the above points in the negative for the following reasons : 24. Point Nos.1 and 2 are interconnected, therefore we discuss them together. PW-1 is plaintiff No.5. In his evidence he has reiterated the plaint averments and he was cross- examined thoroughly on behalf of all the members of the family. His consistent case is that the suit properties were earlier belonging to Smt.Shanteri wife of Gidda Shetty i.e., great grandmother of the plaintiffs. After the death of Smt.Shanteri, the said properties were succeeded by her two daughters i.e., Malamma and Parvathi. The said Shanteri died on 02.12.1953. It is further contended that the said Malamma is the wife of Nagappa Shetty and they had no issues. The suit properties held by Malamma were - 18 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 joint family properties and she was not the absolute owner of the said properties. She died intestate on 26.12.1967. Thereafter, plaintiffs and defendants together were enjoying the suit properties as joint family properties. However, defendant No.1 and his father created the documents and got mutated the revenue records in their name. Therefore, plaintiffs are entitled for share in the suit properties. 25. In his cross-examination, he stated that on 23.11.1953, Smt.Shanteri, great grandmother of plaintiffs and defendant No.1 executed Sale Deed in favour of Malamma in respect of permanent leasehold properties. But he further says that the said Sale Deed was invalidated due to provisions of law. It is further suggested to him that the suit properties were granted in favour of father of defendant No.1 by the Land Tribunal. He admitted that before the Land Tribunal, defendant No.1 contended that Malamma had executed Will in respect of Survey No.55 in his favour. He also admitted that father - 19 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 of plaintiffs had filed an application before the Land Tribunal for grant of occupancy rights in respect of certain properties, however he did not mention the suit property in the said application. He admits that father of defendant No.1 has also filed an application before the Land Tribunal for grant of occupancy rights. 26. Looking to the thorough cross-examination of PW-1, he admits the previous litigations filed by both the parties and result of the said suits. He has also not denied that plaintiffs never challenged the Will executed by Malamma in favour of defendant No.1 and Sale Deed executed by Shanteri in favour of Malamma. 27. As rightly observed by the learned trial Judge, the parties have not produced the pleadings in respect of O.S.No.81/1978, O.S.No.57/1981 and O.S.No.10/1986, however defendants produced Exs.D-1, the certified copy of the judgment and decree passed in R.A.No.259/1973 arising out of the judgment passed in O.S.No.21/1973. The said suit was filed by the Manohar Shankar Shetty - - 20 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 defendant No.1 in the present suit. The said litigation was in respect of Survey No.55A1A/3A, measuring 1 acre 10 guntas and Survey No.55A1A/3B, measuring 10 guntas. The plaintiffs in the present suit were defendants in O.S.No.21/1973. They disputed only in respect of Survey No.55/A, measuring 5 guntas, but admitted the possession and ownership of defendant No.1 herein contrary to the contentions taken by the plaintiffs. In the pleadings, as well as in the evidence, there is no explanation about the said fact. It was specifically admitted by the plaintiffs in O.S.No.21/1973 that Survey No.55A1A/3A, measuring 1 acre 10 guntas was belonging to defendant No.1 herein and they had no right over the said properties and they have not obstructed the possession of defendant No.1 at any point of time. In view of the said contention, the trial Court in O.S.No.21/1973 found that there was no cause of action for the plaintiffs of the said suit to file a suit. Hence on that ground, the suit was dismissed. - 21 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 28. In the previous litigations, plaintiffs in the present suit never contended that it was a joint family property and they had right over the said property or it was in the joint possession and enjoyment of both the parties to the suit. In view of the said admission of the plaintiffs in the previous litigation plaintiffs at present cannot contend that Survey No.55, totally measuring 1 acre 10 guntas is belonging to the joint family property and defendants are not absolute owners of the said property. 29. In the pleadings, plaintiffs have not at all disclosed about the previous litigations and even they have not explained about the said admission in the previous pleadings. In view of the inconsistent pleadings of the plaintiffs in the present suit as well as in O.S.No.21/1973, it is difficult to accept the contention of the plaintiffs in the present suit that suit properties are ancestral and joint family properties of plaintiffs. - 22 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 30. The learned trial Judge in the impugned judgment has observed that nearly about eight cases were filed in-between the plaintiffs and defendant No.1 in respect of Survey No.55 belonging to their family. Totally measuring about 1 acre 10 guntas and 5 guntas, having different sub-division numbers. The said eight cases were also not disclosed by the plaintiffs in the plaint or in the evidence of PW-1. Defendant No.1 in his written statement disclosed about O.S.No.21/1973, O.S.No.81/1978, O.S.No.57/1981 and O.S.No.10/1986 filed between the parties seeking certain reliefs. 31. Defendant No.1 was examined as DW-1 and he has produced the RTCs. of the suit properties as per Ex.D- 18, mutation extracts at Exs.D-15 to D-17 and D-28 and D-29, certified copies of Form No.7 and Form No.10 at Exs.D-24 and D-25. Ex.D-17 shows that by virtue of Will executed by Smt.Malamma in favour of defendant No.1 and on the statement of his father, the revenue records were mutated in respect of suit schedule properties, in the - 23 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 name of defendant No.1. It appears said entries were not at all challenged by the plaintiffs. Even no reliefs were sought against the said Will said to be executed in the name of defendant No.1. An incomplete original Will is said to be produced at Ex.D-14. The contention of the defendants is that said document is thirty years old document, therefore it shall be presumed that it was executed and attested by the persons in accordance with law. 32. In the cross-examination of DW-1, except denial of execution of the Will, nothing was brought out to disbelieve the said document. It is worth to note that reliance on the Will by defendant No.1 is as a defence and he is not seeking any relief on the basis of the said Will. Therefore, merely defendants have not produced the complete Will or examined attesting witnesses, as contended by the learned counsel for the appellants, cannot be a reason to decree the suit. The revenue records were mutated long back in the name of defendant - 24 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 No.1 by virtue of the Will. That was not challenged. In previous litigations, plaintiffs themselves contended that survey No.55 measuring 1 acre and 10 guntas was absolute property of defendants and they have no claim over the same. More over the suit properties are not Hindu joint family properties. On the contrary, they are succeeded by the father of plaintiffs and defendant No.1 through female heir i.e., from their mother's side. In view of all these reasons, plaintiffs utterly failed to prove that suit schedule properties are ancestral and joint family properties and plaintiffs are together entitled for half share in the suit properties. 33. The learned trial Judge has properly considered the said contentions and rightly dismissed the suit. On re-appreciating the entire materials available on record, we are of the opinion that the findings of the learned trial Judge is proper and in accordance with law and it does not call for any interference by this Court. - 25 - NC: 2025:KHC-D:3790-DB RFA No. 100264 of 2018 34. For the above said reasons, we answer point Nos.1 to 3 in the negative and proceed to pass the following: ORDER The appeal is dismissed. The judgment and decree dated 9th April 2018, passed by the learned Senior Civil Judge, Ankola, in O.S.No.29/2017 is confirmed. In view of dismissal of the appeal, all the pending applications stand disposed of. Registry is directed to transmit the records along with copy of this judgment to the concerned trial court without delay. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE bk/ List No.: 1 Sl No.: 5