- 1 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100347 OF 2025 BETWEEN: 1. YAMANAPPA S/O. KALLEPPA TEMMINAL, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 2. SMT. RENAVVA W/O. YAMANAPPA TEMMINAL AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. …APPELLANTS (BY SRI. SHIVANAND MALASHETTI, ADVOCATE) AND: 1. SMT. GYANAMMA W/O. PRASAPPA VANDALI AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 2. BHEERAPPA S/O. KALLEPPA TEMMINAL, AGE: 52 YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 3. SMT. DURAGAMMA W/O. MAHADEVAPPA KURI, AGE: 57 YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 4. SMT. DEVAMMA W/O. CHATRAPPA NARNAL, AGE: 52YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 5. LAXMANA S/O. SHIVAPPA, AGE: 21 YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 6. KUMARI DEVAMMA D/O. SHIVAPPA, AGE: 20 YEARS, OCC: HOUSELD WORK, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 7. KALLEPPA S/O. BHEERAPPA TEMMINAL, AGE: 82 YEARS, OCC: AGRICULTURE, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. 8. SMT. DEVAMMA W/O. BHEERAPPA TEMMINAL, AGE: 47 YEARS, OCC: HOUSEHOLD WORK, R/O: JULAKUNTI, TALUK: KUSHTAGI, DIST: KOPPAL – 583 121. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO CALL FOR THE RECORDS AND TO SET ASIDE THE IMPUGNED JUDGMENT DATED 31.01.2025 AND DECREE DATED 06.02.2025 IN REGULAR APPEAL NO.118/2023 PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-I AT KOPPAL AND THE IMPUGNED JUDGMENT AND DECREE DATED 05.04.2023 PASSED IN OS NO.574/2015 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, AT KUSHTAGI INSOFAR AS COUNTER CLAIM IS CONCERNED AND CONSEQUENTLY DISMISS THE COUNTER CLAIM FILED BY THE RESPONDENT NO.3 AND 4/DEFENDANT NO.3 AND 4 BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, ORDER WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendants No.2 and 8 being aggrieved by the judgment and decree dated 05.04.2023 passed in O.S.No.574/2015 on the file of Senior Civil Judge and JMFC, Kushtagi (for short, ‘Trial Court’), by which the Trial Court decreed the counterclaim made by defendants No.3 and 4 holding each of them being entitled 1/7th share in the suit schedule ‘B’ properties. The said judgment and decree is confirmed by judgment and order dated 31.01.2025 passed in R.A.No.118/2023 on the file of Additional District and Sessions Judge FTSC-1, Koppal (for short, ‘First Appellate Court’). 2. The above suit is filed by plaintiff/respondent No.1 herein for partition and separate possession claiming 1/7th share in the suit schedule ‘B’ properties contending inter alia that defendant No.7 - Kallappa is the propositus of the family and Duragamma – defendant No.3, Beerappa - 4 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 - defendant No.1, Devamma- defendant No.4, Yamanappa – defendant No.2, Suramma - late mother of defendant No.5 and 6 and plaintiff – Gyanamma are his children. Defendant No.8 is the wife of defendant No.2. Suit schedule ‘B’ properties are the joint family ancestral properties. There has been no partition taken place amongst the plaintiff and the defendants. Hence suit for partition. 3. Defendants No.1 to 8 appeared through their respective advocates. Defendant No.9 was impleaded thereafter. Defendant No.2 filed written statement. Defendants No.3 and 4 filed joint written statement. 4. Defendant No.2 in his written statement admitted the relationship of the plaintiff and defendants and has not denied the suit properties being the joint family properties. It is contended that subsequent to his marriage, there was difference of opinion between him and defendants No.1, 3 to 7 as such defendant No.7 effected an oral partition in the year 2010 in terms of which Item - 5 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 No.5 and 7 of the suit schedule properties namely land in Sy.No.3/3 measuring 5 acres and Sy.No.3/4 measuring 5 acres respectively were allotted to his share and the other defendants had consented for the same, as such his name and name of his wife have been mutated in respect of the said two properties in the year 2011 and as such sought for dismissal of suit. 5. Defendants No.3 and 4 admitting the claim made by the plaintiff for partition and separate possession, also made their claim for their share in the suit properties. The Trial Court based on the pleadings on record, framed the following issues: “1. Whether the plaintiff proves that, genealogy furnished by plaintiff is true and correct? 2. Whether the plaintiff proves that, the plaintiff and the defendants are having ancestral properties and there are in joint possession of the suit property? 3. Whether the defendant No.2 proves that already partition taken place? 4. Whether the defendant No.2 proves that suit is hit by order 2 Rule 2 of CPC? 5. Whether the defendant proves that the suit is bad for non joinder of necessary party? - 6 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 6. Whether the defendant proves that suit is not maintainable? 7. Whether the plaintiff is entitled for relief of partition? 8. What order or decree?” 6. Despite sufficient opportunities, plaintiff did not lead any evidence. Consequently suit of the plaintiff came to be dismissed. However, in view of the counterclaim made by defendants No.3 and 4, they have examined themselves as DW.1 and DW.2 and got marked 11 documents as Ex.D.1 to Ex.D.11 and closed their side. Defendant No.2 examined himself as DW.3 and also examined another three witnesses as DW.4 to 6 and exhibited 47 documents as Ex.D.12 to Ex.D.47. On appreciation of evidence, the Trial Court answered issue No.1, 2 and 7 in the affirmative and issue No.3, 4, 5, 6 in the negative and consequently granted the counterclaim made by defendants No.3 and 4 as noted above. 7. Aggrieved by the same defendants No.2 and 8 being the husband and wife preferred Regular Appeal in - 7 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 R.A. o.118/2023. There was a delay of 21 days in filing the appeal. The First Appellate Court accordingly framed the following points for its consideration: “1. Whether there is sufficient cause to condone the delay in filing this appeal? 2. Whether the trial court has correctly held that defendant No.3 and 4 are entitled for share in the suit schedule properties way of counter claim? 3. Whether the impugned judgment and decree passed by the trial Court calls any interference by this Court in exercise of the appellate jurisdiction? 4. What order?” 8. On re-appreciation of evidence, the First Appellate Court answered point No.1 and 2 in the affirmative and point No.3 in the negative and consequently dismissed the appeal confirming the judgement and decree passed by the Trial Court. Being aggrieved, defendants No.2 and 8 are before this Court. 9. Learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that the Trial Court and the First Appellate Court grossly erred in not appreciating the contentions, - 8 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 oral and documentary evidence adduced by defendant No.2 with regard to the oral partition that had taken place between him and the family members. He submits that the oral partition that had taken place has been evidenced by way of entries in the revenue records which was sufficient enough to hold that the partition had taken place. Therefore, he submits the Trial Court and the First Appellate Court have erred in decreeing the suit. 10. That apart, he submits the plaintiff who had filed the suit did not prosecute the matter resulting in suit being dismissed, as such the counterclaim made by defendants No.3 and 4 could not have been allowed. Hence, he submits substantial question of law would therefore arise for consideration. 11. Heard. Perused the records. 12. The relationship between the parties is not in dispute. The suit schedule properties being the joint family properties is also not in dispute. - 9 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 13. The case of the defendant No.2 is that there was an oral family partition in terms of which properties in Item No.5 and 7 of the suit schedule properties being land bearing Sy.No.3/3 measuring 5 acres, Sy.No.3/4 measuring 5 acres respectively have been allotted to his share and the said oral partition had taken place in the year 2010 and the same was evidenced by entries in the revenue records. 14. At this juncture, it is to be noted that the suit schedule properties are admittedly joint family ancestral properties. Plaintiff and defendants No.3, 4 and mother of defendants No.5 and 6 being the daughters became entitled for equal share as members of co-parcenary, in view of the amendment to Section 6 of Hindu Succession Act. Any partition of the joint family subsequent to coming into force of amendment to the Act has to be by a registered instrument or through the Court decree, as such the oral partition allegedly taken place during the year 2000 as claimed by defendant No.2 in the present - 10 - HC-KAR NC: 2025:KHC-D:8093 RSA No. 100347 of 2025 appeal cannot be countenanced. The same without making other members parties is also illegal and void. 15. Other contention urged is that the suit of the plaintiff having been dismissed, the counterclaim could not have been allowed is also contrary to the settled position of law. That is, even if suit is dismissed, the counterclaim has to be adjudicated as a separate suit. Since defendants No.3 and 4 in their written statement have made a counterclaim, though the suit is dismissed, the Trial Court and the First Appellate Court are justified in adjudicating the counterclaim independent to the dismissal of suit. 16. In view of the above, no substantial question of law would arise for consideration. Appeal is accordingly dismissed. Sd/- (M.G.S. KAMAL) JUDGE SMM para 1 SH, CT-ASC List No.: 1 Sl No.: 17