- 1 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1785 OF 2013 (DEC) BETWEEN: 1. SRI.ANNAPPA S/O LATE HALAPPA AGED ABOUT 54 YEARS R/O KUPPALU VILLAGE MATHIGHATTA POST KASABA HOBLI KADUR TALUK DISTRICT CHIKKMAGALUR 2. SRI HALAPPA S/O RANGAPPA SINCE DECEASED BY HIS LRS SMT SHANKARAMMA W/O LATE HALAPPA AGED ABOUT 72 YEARS HOUSE WIFE R/O KAREHALLY VILLAGE MATTIGATTA POST KADUR TALUKA …APPELLANTS (BY SRI. HAVERI S S.,ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 AND: 1. SMT.GIRIYAMMA W/O LATE CHIKKABEERANNA AGED ABOUT 62 YEARS SINCE DECEASED REPRESENTED BY HER LRS RESPONDENSTS 2 to 6 R/O MATHIGHATTA VILLAGE AT AND POST KASABA HOBLI KADUR TALUKA CHIKKAMAGALUR DIST 2. SRI MANJUNATH S/O LATE CHIKKABEERANNA AGED ABOUT 30 YEARS R/O MATHIGHATTA VILLAGE AT AND POST KASABA HOBLI KADUR TALUKA CHIKKAMAGALUR DIST 3. SMT LAKKAMMA W/O LATE KALLESHAPPA D/O CHIKKABEERANNA AGED ABOUT 52 YEARS R/O SINGATAGERE VILLAGE & AT & POST SINGATAGERE HOBLI KADUR TALUKA DIST CHIKKAMAGALUR 4. SMT GOWRAMMA W/O MADIHALLAPPA D/O LATE CHIKKABEERANNA AGED ABOUT 50 YEARS R/O HULIKERE VILLAGE - 3 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 SINGATAGERE HOBLI KADUR TALUK DIST CHIKKAMAGALUR 5. SMT NEELAMMA W/O RAJAPPA D/O LATE CHIKKABEERANNA AGED ABOUT 47 YEARS R/O KALLANAYAKANAHALLY VILLAGE ARASIKERE TALUKA HASSAN DISTRICT 6. SMT BHAGYAMMA W/O JAYANNA D/O CHIKKABEERANNA AGED ABOUT 44 YEARS R/O NARAYANAKOPPALU VILLAGE SINGATAGERE HOBLI KADUR TALUK DIST CHIKKAMAGALUR 7. SRI OMKARAPPA S/O LATE HALAPPA AGED ABOUT 50 YEARS R/O AREHALLI VILLAGE SAKHARAYAPATNA HOBLI KADUR TALUKA DIST CHIKKAMAGALUR …RESPONDENTS (BY SRI. K R LINGARAJU FOR R2 TO R6.,ADVOCATE) - 4 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 (BY SRI.T.BASAVARAJ ADVOCATE FOR R7) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 13.8.2013 PASSED IN R.A.NO.59/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KADUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 12.7.2010 PASSED IN OS.NO.17/2006 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KADUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellants challenging the judgment and decree dated 13.08.2013, passed in R.A.No.59/2010 by the learned Senior Civil Judge and JMFC, Kadur. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were defendant Nos.2 and 3, respondent Nos.1 to 6 were the plaintiffs and respondent No.7 was defendant No.1. - 5 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for declaration partition and separate possession of their 1/3rd share in item Nos.1 to 4 of the suit schedule property. It is the case of the plaintiffs that item Nos.1 and 2 of the suit schedule properties were purchased by Beeranna from defendant No.2 in 1962 and 1965 under a registered sale deed. It is contended that the plaintiff are the LRs of said Beeranna and are in peaceful possession and enjoyment of the suit schedule properties. The said Chikka Beeranna had purchased the properties looking into the family necessities of defendant No.2, as such, he is a bonafide purchaser for value without notice. 3.1. Defendant No.1 filed a suit for partition and separate possession in O.S.No.9/1982 against defendant Nos.2 and 3, including Chikka Beeranna. In the said suit, defendant No.2 had filed a written statement, which was adopted by Chikka Beeranna. The said suit was decreed - 6 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 insofar as item Nos.1 and 2 of the suit schedule properties therein and dismissed the suit insofar as item Nos.3 and 4 of the suit schedule properties, vide judgment and decree dated 14.06.1983. The said judgment and preliminary decree was challenged in R.A.No.51/1983, wherein the first Appellate Court reversed the judgment and decree passed in O.S.No.9/1982. Defendant No.1 preferred a second appeal in RSA No.475/1990, which was allowed vide judgment dated 24.10.1997. Defendant No.1 has filed FDP and the same is pending. The plaintiffs, recently came to know that apart from item Nos.1 and 2, the defendants also got certain other properties, which were not included in O.S.No.9/1982. Hence, Chikka Beeranna, being a bona fide purchaser, is entitled to seek partition in all the suit schedule properties of the defendants and also to seek relief of equitable allotment of item Nos. 1 and 2 to defendant No.2 and in turn to allot the same in his favour. Hence, prays to decree the suit. - 7 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 3.2. Defendant No.1 filed a written statement, except filing of suit, preferring an appeal in R.A. and RSA and FDP, has denied all other averments made in the plaint. It is contended that there is no cause of action to file a suit for partition and separate possession and the same is barred by limitation. It is also contended that suit item Nos.4 to 7 are not the joint family properties. Hence, prays to dismiss the suit. 3.3. The Trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiffs prove that the suit schedule properties are the joint family properties? 2) Whether the plaintiffs prove that the defendants sold item No.2 of the suit schedule property in favour of late Chikkaveeranna for legal necessity and for benefit of the family? 3) Whether the plaintiffs prove that they have came to know about the leaving of other item of properties after receipt of notice in FDP No.5/02? 4) Whether the suit is barred by limitation? - 8 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 5) Whether the defendants prove that this Court has no pecuniary jurisdiction to try the suit? 6) To what reliefs, the parties are entitled? 7) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.2 was examined himself as PW-1, examined 2 witnesses as PWs.2 and 3 and marked 13 documents as Exs.P1 and P13. In rebuttal, defendant No.1 was examined himself as DW.1 and no documents were produced or marked. The trial Court, after recording the evidence, hearing on both sides and, assessing the verbal and documentary evidence of the parties, answered issue No.1 partly in the affirmative, issue Nos.2 to 6 in the negative, issue No.7 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 12.07.2010. 3.5. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.17/2006, preferred an appeal in R.A.No.59/2010, on the file of Senior Civil Judge and JMFC, Kadur. - 9 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 3.6. The First Appellate Court, after hearing the parties, has framed the following points for consideration: 1) Whether the judgment and decree passed by the trial Court in O.S.No.17/2006 dated 12.07.2010 is illegal, erroneous and opposed to the principles of law, facts and probabilities of the case and liable to be set aside? 2) Whether the appellants/ plaintiffs proves that item Nos.3 to 7 of the suit schedule properties are the joint family properties of the respondents/defendants? 3) Whether the appellants/ plaintiffs proves that the respondent No.2/defendant No.2 had sold the item Nos.1 and 2 of the suit schedule properties to Chikkabeeranna for the legal necessities and benefits of the family? 4) Whether the suit in O.S.No.17/2006 is in time? 5) What order or Decree? 3.7. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point No.1 to 4 in the affirmative, point No.5 as per the final order. The appeal was allowed with costs. The judgment and decree passed by the trial Court was set aside. Consequently, the - 10 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 suit of the plaintiffs was decreed. It is ordered and declared that defendant Nos.1 to 3 have got 1/3rd share each in the entire suit schedule properties. It is also further declared that the plaintiffs, being bonafide purchasers of item Nos.1 and 2 of the suit schedule properties, are entitle to a 1/3rd share of the vendor – defendant No.2 (Halappa) in the said properties. The plaintiffs are entitled to claim equitable allotment of item Nos.1 and 2 properties to their share while division and separation of shares of the parties in the suit schedule properties. The partition, separation and allotment of shares of the plaintiffs and defendant Nos.1 to 3 in respect of the suit schedule properties shall be effected under Section 54 of the CPC and under Order XX Rule 18 of CPC. Consequently defendant Nos.1 to 3 were retrained from executing the preliminary decree in O.S.No.9/1982 through FDP No.05/02 or other proceedings. - 11 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 3.8. Defendant Nos.2 and 3, aggrieved by the judgment and decree passed in R.A.No.59/2010, have filed this regular second appeal. 4. Heard the arguments of the learned counsel for defendant Nos.2 and 3, and the learned counsel for the plaintiffs. 5. Learned counsel for defendant Nos.2 and 3 submits that before the filing of the present suit, defendant No.1 filed a suit in O.S.No.9/1982 against Halappa, Annappa and Chikka Beerappa for partition and separate possession regarding the suit schedule properties therein and the said suit was partly decreed insofar as item Nos.1 and 2 of the suit schedule properties, but dismissed the suit in respect of item Nos.3 and 4 of the suit schedule properties. Hence, he submits that item No.3 and 4 are not the joint family properties and he also submits that while discussing in the impugned judgment, the first Appellate Court has recorded a finding in para 24 - 12 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 of the judgment, wherein the plaintiffs are entitle to a share in respect of item Nos.1 and 2 of the suit schedule properties and in the operative portion of the judgment and decree, it is declared that defendant Nos.1 to 3 have got 1/3rd share each in the entire suit schedule properties and the plaintiffs being a bona fide purchasers of item Nos.1 and 2 of the suit schedule property are entitle for 1/3rd share of the vendor- defendant No.2 in the said properties. There is a confusion regarding whether the plaintiffs are entitled to claim an equitable partition in item Nos.3 and 4 of the suit schedule property. Hence, he submits that the matter requires reconsideration by the first Appellate Court and also submits that the parties have not produced a copy of the judgment in RSA No.475/1990. He submits that defendant Nos.2 and 3 have produced the xerox copy of the judgment passed in RSA No.475/1990. The first Appellate Court, without going through the findings recorded in RSA No.475/1990, has passed the impugned judgment. Hence, he submits that the - 13 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 impugned judgment passed by the first Appellate Court is perverse, arbitrary and erroneous. Hence, on these grounds, prays to allow the appeal. 6. Per contra, learned counsel for the plaintiffs submits that the plaintiffs are the purchasers of item Nos.1 and 2 of the suit schedule property, and the plaintiffs came to know that the defendants and their family members are possessing other properties. The plaintiffs, being a bona fide purchasers, are entitled to a share in the suit schedule properties, and the first Appellate Court has rightly passed the impugned judgment. Hence, on these grounds, prays to dismiss the appeal. 7. This Court vide order dated 22.08.2014, admitted the appeal to consider the following the substantial question of law. “When the trial Court dismissed the suit instituted by respondent Nos.1 to 6 seeking relief of declaration and for equitable partition on the basis of the evidence on record, whether the first Appellate Court was justified in reversing the - 14 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 judgment and decree and granting relief of declaration and equitable partition and in doing so, did not assign appropriate and valid reasons to overcome the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?” 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. REG. SUBSTANTIAL QUESTION OF LAW: The plaintiffs have filed a suit for partition and separate possession regarding the suit schedule property. It is contended that that the suit schedule property are the joint family properties of the defendants and the plaintiffs have purchased item Nos.1 and 2 of the suit schedule property from defendant No.2. It is contended that defendant No.1 herein filed a suit against defendant No.2 and the husband of plaintiff No.1 and father of plaintiff Nos.2 to 6, for partition and separate possession, in O.S.No.9/1982. The said suit was partly decreed in sofar as item Nos.1 and 2 of the suit schedule property is - 15 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 concerned and dismiss the suit in respect of item Nos.3 and 4 of the suit schedule property, holding that item Nos.3 and 4 of the suit properties belonging to the brother of Halappa and therefore, he and the plaintiffs, are not entitled to get separate share out of suit item Nos.3 and 4 of the suit schedule property. An appeal was preferred against the judgment and decree in O.S.No.09/1982, in R.A.No.51/1983 on the file of Learned Civil Judge, Tarikere. The said appeal was allowed and the judgment and decree passed in O.S.No.9/1982, was set aside. The plaintiff in O.S.No.9/1982, preferred an appeal in RSA.No.475/1990 on the file of this Court. This Court vide judgment dated 24.10.1997, allowed the appeal and set aside the judgment and decree passed in R.A.No.51/1983. 10. Subsequently, after disposal of the second appeal, the plaintiffs, being purchasers of item Nos.1 and 2, filed a suit in O.S.No.17/2006 for declaration, partition and separate possession. The trial Court, after recording the evidence of the parties, held that the plaintiffs have - 16 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 not proved that the suit schedule properties are the joint family properties and recorded a finding that item Nos.1 and 2 are not joint family properties and item Nos.3 to 7 are also not the joint family properties and held that the plaintiffs have failed to prove that the defendant No.2 has sold the item Nos.1 and 2 of the suit schedule property in favour of Late.Chikkabeeranna, for legal necessity and for the benefit of the family and the plaintiffs also have failed to prove that they came to know the leaving of other items of the properties after receipt of notice in FDP.No.5/2002. It is held that the defendants have failed to prove that the suit is barred by limitation and also held that the Court has got the pecuniary jurisdiction to try the suit, and held that the plaintiffs are not entitled to any share. Accordingly, dismissed the appeal. 11. The plaintiffs, being the purchasers of item Nos.1 and 2 of the suit schedule property filed the instant suit, seeking for declaration, partition and separate possession. The plaintiffs, aggrieved by the judgment and - 17 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 decree passed in O.S.No.17/2006 preferred an appeal in R.A.No.59/2010, on the file of Learned Senior Civil Judge and JMFC, Kadur. The first appellate Court, on re- assessing the entire evidence on record, has recorded its finding in para 24 of the judgment, which reads as follows: 24. In view of the above decisions, I am of the view that the present suit of the plaintiffs in O.S.No.17/2006 is valid and maintainable and that the findings of the trial court on the claim of the plaintiffs regarding Item No.1 and 2 of the suit schedule properties in particular and Item No.3 to 7 of the properties in general are incorrect. Being the bonafide purchasers of Item No.1 and 2 of the suit schedule properties, the plaintiffs will step in to the shoes of the defendant No.2 and that they will get 1/3rd share in the said properties. Since the plaintiffs have demonstrated that the remaining properties are also joint family properties, the plaintiffs are entitled to claim equitable allotment of Item No.1 and 2 of the suit schedule properties to their share while dividing the entire suit schedule properties. Accordingly, I hold that the judgment and decree of the trial court in O.S.No.17/2006 is illegal and that the Item No.3 to 7 of suit schedule properties are the joint family properties of the defendants and that the - 18 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 alienation made by the respondent No.2-Halappa in respect of Item No.1 and 2 of the suit schedule properties in favour of late Chikkabeeranna was for legal necessity of the family of the defendants and is valid to the extent of share held by the said Halappa in the said properties. Hence, my answers to the above points are in the "Affirmative". 12. From the perusal of the judgment passed in R.A.No.59/2010, the first appellate Court, while discussing, it is held that the judgment and decree of the trial Court in O.S.No.17/2006 is illegal and that item Nos.3 to 7 of the suit schedule properties are the joint family properties of the defendants and that the alienation made by defendant No.2 in respect of item Nos.1 and 2 of the suit schedule property in favour of Chikkabeeranna for the legal necessity of the family of the defendants, is valid, to the extent of the shares held by Hallappa in the said properties. The word "said properties" refers to either item Nos.1 and 2 or the entire suit schedule properties. - 19 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 13. The first appellate Court has not clarified, whether the plaintiffs are entitled to equitable shares in item Nos.1 and 2 or in the entire suit schedule properties. The judgment and decree passed by the trial Court is vague and is unclear. Hence, the first appellate Court has not properly considered the entire evidence on record and committed an error in passing the impugned judgment. The matter requires re-consideration by the first appellate Court, about the clarification, whether the plaintiffs are entitled to a share in all the suit schedule properties or not, or only in respect of item Nos.1 and 2 of the suit schedule property. Thus in view of the above discussions, I answer substantial question of law partly in the affirmative, partly in the negative. 14. In view of the above discussions, I proceed to pass the following order: ORDER 1. The appeal is allowed-in-part. - 20 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 2. The judgment and decree dated 13.08.2013 passed in R.A.No.59/2010 by the learned Senior Civil Judge, Kadur is set aside. 3. The R.A.No.59/2010 is restored to its original file. 4. The first appellate Court, after hearing the learned counsel for the parties, shall pass the judgment in accordance with law. 5. This Court has not made any adjudication on merits in issues. All the contentions of the parties kept open. 6. The office is directed to transmit the records to the first appellate Court. 7. Parties are directed to appear before the first appellate Court on 10.09.2025, without awaiting any further notice. - 21 - HC-KAR NC: 2025:KHC:26264 RSA No. 1785 of 2013 In view of the disposal of the appeal pending IAs, if any, disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS,RCK List No.: 1 Sl No.: 14