- 1 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100903 OF 2022 (PAR/POS-) BETWEEN: 1. SMT. SUSHEELA B. W/O. SHIVASHANKRAPPA B. SAHUKAR, AGE: 63 YEARS, OCC: HOUSEHOLD, R/O. NANDI NILAYA, OLD AMARAWATI, NEAR WOMEN’S HOSTEL, HOSAPETE-583201, TQ: HOSAPETE, DIST: VIJAYANAGAR. 2. SMT. KALAKAMMA W/O. DR. SHIVASHANKRAPPA MANGAL, AGE: 52 YEARS, OCC: HOUSEHOLD, R/O. DHANWANTARI COLONY, BHAGYANAGAR, KOPPAL-583231, TQ: KOPPAL, DIST: KOPPAL. 3. SMT. KAVERI W/O. BASAVARAJ GOBBARGUMPI, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O. BEHIND FCI GODOWN, ABHISHEK BADAVANE, BHAGYANAGAR, KOPPAL-583231, TQ: KOPPAL, DIST: KOPPAL. 4. SHEKHARAPPA @ SHEKAPPA S/O. KUDLEPPA KARAGALLANAVAR (SAHUKAR), AGE: 48 YEARS, OCC: AGRICULTURE, R/O. BEVINAHALLI-583228, TQ: KOPPAL, DIST: KOPPAL. 5. HANUMAPPA S/O. KUDLEPPA KARAGALLANAVAR (SAHUKAR), AGE: 41 YEARS, OCC: AGRICULTURE, R/O. BEVINAHALLI-583228, TQ: KOPPAL, DIST: KOPPAL. 6. VIRUPANNA S/O. KUDLEPPA KARAGALLANAVAR (SAHUKAR), AGE: 38 YEARS, OCC: AGRICULTURE, SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 R/O. BEVINAHALLI-583228, TQ: KOPPAL, DIST: KOPPAL. …APPELLANTS (BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE) AND: 1. RENUKAMMA W/O. VEERABHADRAPPA HADAPAD, AGE: 60 YEARS, OCC; HOUSEHOLD WORK, R/O. KOGALI-583212, TQ: H.B. HALLI, DIST: BALLARI. 2. SMT. SIDDAWWA W/O. HANUMANTAPPA KABBI, AGE: 78 YEARS, OCC: HOUSEHOLD WORK, R/O. GULADALLI-583228, TQ AND DIST: KOPPAL. 3. SMT. NAGARATNAMMA @ NAGARATNA, W/O. RUDRAYYA HIREMATH, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O. GULADALLI-583228, TQ/DIST: KOPPAL. …RESPONDENTS (BY SMT. GAYATRI S.R., ADVOCATE FOR R1; R2-DECEASED; R3-SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE KOPPAL IN R.A. NO.19/2017 DATED 24.05.2022 CONFIRMING THE IMPUGNED JUDGMENT AND DECREE IN O.S. NO. 98/2009 DATED 23.09.2017 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KOPPAL AND DISMISS THE SUIT OF THE PLAINTIFFS IN ITS ENTIRETY, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 ORAL JUDGMENT This Regular Second Appeal is filed by the legal representatives of the defendant No.1, defendant Nos.2 to 4 assailing the judgment and decree dated 24.05.2022 passed in RA No.19/2017 on the file of the Senior Civil Judge and CJM, Koppal (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 23.09.2017 passed in OS No.98/2009 on the file of Principal Civil Judge and JMFC, Koppal (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. Facts in nutshell for the purpose of adjudication of this appeal are that, the plaintiff and defendant No.1 are the children of Hanumanthappa and Gangamma. It is stated that, they had one more sister-Annamma, who died without leaving behind any legal representatives. It is the - 4 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 case of the plaintiff that, the suit schedule properties are the joint family properties of the plaintiff and defendant No.1 and as such, it is contended that, the plaintiff is entitled for half share in the suit schedule properties. 3.1. It is also stated in the plaint that, the defendant No.1 had executed two registered sale deeds bearing registration No.1408 of 91-92 and document No.1538 of 91-92 in favour of defendant Nos.5 and 6 and same were not binding on the plaintiff. Hence, the plaintiff has filed OS No.98/2009, seeking relief of partition and separate possession in respect of the suit schedule properties. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant No.1 that, there was oral partition between the plaintiff and defendant No.1 and the plaintiff herself has sold her share by creating third party rights and therefore contended that, the suit itself is not maintainable. Hence, sought for dismissal of the suit. - 5 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 5. On the basis of the rival pleadings, the Trial Court has formulated issues and additional issues for its consideration. 6. In order to establish their case, plaintiff has examined two witnesses as PW1 and PW2 and got marked 50 documents as Exs.P1 t P50. On the other hand, defendants have examined four witnesses as DW1 to DW4 and produced 7 documents as Exs.D1 to D7. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 23.09.2017 decreed the suit holding that, the plaintiff is entitled for half share in the suit schedule properties. Being aggrieved by the same, legal representatives of the defendant No.1 along with defendant Nos.2 to 4 have preferred Regular Appeal in RA No.19/2017 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 24.05.2022 dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in OS - 6 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 No.98/2009. Being aggrieved by the same, the appellants/defendants have preferred this Regular Second Appeal. 8. This Court vide order dated 26.08.2022 formulated the following substantial question of law. “Whether Courts below are justified in disbelieving earlier partition as per Ex.D.4 on ground that it was unregistered overlooking admission of plaintiff that it was acted upon?” 9. I have heard Sri. Shriharsh A. Neelopant, learned counsel appearing for the appellants and Smt. Gayatri S. R., learned counsel appearing for the respondent No.1. 10. Learned counsel appearing for the appellants submits that, both the Courts below have committed an error in not appreciating Ex.D.4–Mutation Entries made in respect of the suit schedule properties. It is also contended by the learned counsel appearing for the appellants that, the relief sought for by the plaintiff is barred by limitation challenging the registered sale deeds - 7 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 and that apart, the plaintiff was allotted 1 acre of land by the father of the plaintiff which makes it clear that, there was oral partition in the joint family and accordingly, sought for interference of this Court. 11.1. He also invited the attention of the Court to the deposition of PW1 and submitted that, the plaintiff admits about the oral partition between the plaintiff and defendant No.1 and therefore, sought for setting aside the judgment and decree passed by both the Courts below. 11. Per Contra, the learned counsel appearing for the respondent No.1 submitted that, the defendants have failed to prove the oral partition before the Trial Court and no acceptable evidence has been adduced to substantiate their claim in the written statement and accordingly, sought for dismissal of the appeal. 12. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. In order to ascertain the - 8 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 relationship between the parties as averred in the plaint, the genealogy reads as under: Hanumanthappa(died) Gangamma (wife)(died) Gundamma Annamma Renukamma (D-1) (issueless)(died) (Pltf.) Shekharappa Sushilamma Hanumanthappa Kalakamma Virupanna Kaveri (D-2) (D-3) (D-4) 13. Perusal of the genealogy would indicate that, the plaintiff and defendant No.1 are children of Hanumanthappa and Gangamma. One of the sisters of plaintiff and defendant No.1 – Annamma died without leaving behind any legal representatives. It is also to be noted that, the suit schedule properties are the joint family properties of defendant No.1 and plaintiff. It is the contention of the plaintiff that, the plaintiff is entitled for half share in the suit schedule properties. Undisputably, there are eight schedule items in the schedule to the plaint. 14. It is the plea of the learned counsel appearing for the appellants/defendants that, there was earlier - 9 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 partition in the family and the plaintiff admits in the evidence about the division of properties and therefore, the suit itself is not maintainable. In this regard, I have carefully examined the cross examination of PW1 wherein, it is deposed by PW1 as follows: ! "! # $% & '"! () ! "* + ! ,!-.! #%-# /0"! () ! "! # $%0"! () ! "* + ! ,1 (Emphasis supplied by me) 15. On perusal of the aforementioned deposition of PW1 makes it clear that, during the life time of the father of the plaintiff and the defendant No.1 – Hanumanthappa had allotted 1 acre each to the plaintiff as well as to the defendant No.1. The said admission of allotting 1 acre of land by the father of the plaintiff and defendant No.1, cannot be construed as oral partition between the parties. 16. In that view of the matter, as the defendants have failed to establish the earlier partition effected between the parties through independent witnesses and also nothing has been produced before the Trial Court with - 10 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 regard to the division of the schedule properties which are in eight items of land property, I am of the view that, both the Courts below have rightly decreed the suit holding that, the plaintiff and defendant No.1 are entitled for half share each in the suit schedule properties. 17. Taking into consideration the arguments advanced by the learned counsel appearing for the appellants that, the main prayer in the plaint is with regard to claiming share in the suit schedule properties which is in the nature of suit for partition and separate possession and therefore, a prayer challenging the sale deeds is the consequential relief. 18. In that view of the matter, I am of the view that, the defendants have not made out a case for interference in this appeal and further, Ex.D.4 which is the Mutation Register effected with regard to one such properties of the joint family, which cannot be a basis or ground to arrive at a conclusion that there was partition between the plaintiff and defendant No.1. - 11 - NC: 2025:KHC-D:6812 RSA No. 100903 of 2022 19. Therefore, I do not find material irregularities or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed. The substantial question of law framed above favours the plaintiff and accordingly, appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 31