- 1 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 392 OF 2025 (PAR) BETWEEN: SMT VENKATAMMA W/O ABBANNA AGED ABOUT 62 YEARS RESIDING AT KAKINATHA VILLAGE, SUGUTUR HOBLI, KOLAR TALUK AND DISTRICT – 563101 …APPELLANT (BY SRI S VISWESWARAIAH, ADVOCATE) AND: 1. SMT VARALAKSHMI W/O NATARAJ, D/O LATE P.CHINNAPPA AGED ABOUT 36 YEARS, R/AT AGRAHARA BEEDI WARD NO.22, SIDDLAGHATTA TOWN CHIKKABALLAPURA DISTRICT – 562101 2. SMT.ANASUYAMMA, W/O.K.G.NARAYANASWAMY D/O LATE P.CHINNAPPA AGED ABOUT 38 YEARS, RESIDING AT KAKINATHA VILLAGE, SUGUTUR HOBLI, KOLAR TALUK AND DISTRICT – 563101 3. SRI.VENKATESHAPPA SON OF LATE P.CHINAPPA AGED ABOUT 47 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 4. SRI.ARJUN SON OF LATE P.CHINAPPA AGED ABOUT 42 YEARS, 5. SRI. ANAND SON OF LATE P.CHINAPPA AGED ABOUT 38 YEARS, RESPONDENTS NO.3 TO 5 ARE RESIDING AT NEAR OM SHAKTHI TEMPLE 14TH CROSS, KARANJIKATTE KOLAR CITY - 563 101. 6. SMT.PARVATHAMMA WIFE OF NARAYASWAMY AGED ABOUT 54 YEARS RESIDING AT KAKINATHA VILLAGE, SUGUTUR HOBLI, KOLAR TALUK AND DISTRICT – 563101 7. SRI.SHIVAKUMAR SON OF SUBBARAYAPPA AGED ABOUT 33 YEARS 8. SRI.PRABHAKAR SON OF SUBBARAYAPPA AGED ABOUT 29 YEARS RESPONDENT NO.7 AND 8 ARE RESIDING AT 12TH CROSS, SHANTHINAGAR KARANJIKATTE, KOLAR CITY - 563 101 9. SRI.KOTIREDDY SON OF KOTIREDDY AGED ABOUT 54 YEARS RESIDIDNG AT NO.1964, ANJINEYASWAMY TEMPLE ROAD KARANJIKATTE, - 3 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 KOLAR CITY - 563 101. 10. KUM.N.POOJA D/O NAGARAJU AGED ABOUT 26 YEARS RESIDING AT NO.253/1, NAGALAYA 2ND CROSS, ANTHARAGANGE ROAD, MUNESHWARANAGARA KOLAR TOWN - 563 101. 11. KUM. SHRAVANI D/O RAMESH .V AGED ABOUT 26 YEARS RESIDING AT BYRAVESHWARA NILAYA ABAYA ANJINEYASWAMY TEMPLE ROAD, 10TH CROSS, KARANJII KATTE KOLAR CITY - 563 101. …RESPONDENTS [BY SRI RAMAKRISHNA HEGDE, ADVOCATE C/R1 AND R2 (CP NO.4531/25)] THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.01.2025 PASSED IN RA NO.8/23 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.01.2023 PASSED IN O.S.NO.187/2018 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, KOLAR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 4 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 ORAL JUDGMENT Heard Sri Visweswariah, learned counsel for the appellant. Defendant No.4 is the appellant in this present second appeal. 2. This second appeal is filed challenging the judgment and decree passed in O.S.No.187/2018, whereby respondent/plaintiffs have been granted 1/5th share in the suit properties which was confirmed in R.A.No.8/2023. 3. The facts which are utmost necessary for disposal of the present appeal are as under: 3.1. Respondent Nos.1 and 2 were the plaintiffs before the Trial Court who filed suit for partition and separate possession in respect of the suit schedule properties by contending that the suit properties are joint family properties and plaintiff Nos.1 and 2 are the daughters and defendants Nos.1 to 3 are the sons of late P. Chinnappa which is not in dispute. 3.2. During the lifetime of P. Chinnappa, he was in possession and enjoyment of the suit schedule properties. - 5 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 After the death of the parents of plaintiff Nos.1 and 2 and defendants 1 to 3, first defendant being the eldest member of the joint family, got mutated the revenue entries in his name on ‘pavathi varasu’ without the knowledge of the plaintiffs. 3.3. It is further contention of the plaintiffs that after the marriage, they started residing in their respective husbands place. However, they being the members of joint family, they were in joint possession of suit properties even though they were residing with their respective husbands. 3.4. Defendants 1 to 3 started alienating the suit property which has come to the knowledge of the plaintiffs and therefore they demanded their legitimate share in the suit properties. The same was denied. As such, suit was filed. 3.5. Defendant Nos.4 to 7 have purchased portion of the suit properties and therefore, they were also arraigned as party-defendants to the suit. 4. Upon receipt of the suit summons, there was a common written statement filed by defendant Nos.1 to 7, setting up the plea of previous partition and after the partition, the suit properties fell to the share of defendants 1 to 3. - 6 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 Therefore, they had the absolute right, title over the suit properties and they got the suit item No.1 of the suit properties converted for non agriculture purpose and they formed the layout and sold the individual sites to the parties for defendants Nos.4 to 7. 4.1. They denied the rights of the plaintiffs in the suit properties by virtue of the previous partition wherein plaintiffs have also derived rights, title and interest over the other suit properties left behind by P. Chinnappa. 5. Learned Trial Judge based on the rival contentions of the parties, raised necessary issues and after recording the evidence of the parties, appreciated the material evidence on record in proper perspective and recorded a categorical finding that the plea of previous partition set up by defendants 1 to 3 has not been established. Therefore, decreed the suit of the plaintiffs granting 1/5th share to each of the plaintiffs in all the suit schedule properties. 6. Being agreed by the same, defendant No.4 alone filed an appeal before the First Appellate Court in R.A.No.8/2023. - 7 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 7. Learned Judge in the First Appellate Court after securing the records from the Trial Court heard the arguments of the parties in detail, re-appreciated the factual aspects and the material evidence on record and dismissed the appeal of the defendant No.4. 8. Being further aggrieved by the same, defendant No.4 is before this court in the second appeal on the following grounds.  The courts below have committed a serious error in Decreeing the suit of the Respondent No.1 and 2 without properly appreciating EXHIBIT D-1. Partition Deed dated 23.07.2011 wherein the said Respondents are allotted "H" Schedule which is admitted by them. Further the recitals of the Partition Deed clearly state that there are no other joint family properties to be divided among the parties. except the property mentioned in the partition deed. In that view of the matter the Decreetal of suit is highly improper, illegal and is liable to be set-aside.  The Trial court has wrongly proceeded on the premise that since the Defendant No.1 to 7 have not stated anything inregard to items 2 to 7 in the written statement except item No.1 the same amounts to admission regarding acquisition of the other properties by Late P.Chinnappa under Section 58 Indian Evidence Act is highly illegal for the reason that the Defendants - 8 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 apart from stating regarding Item No.1 have also denied the other averments made in the plaint which is nothing but disputing the claim of plaintiffs and the burden is on the plaintiff to prove the same. Hence, the finding of the Trial Court regarding the said aspect is without any basis.  The Trial Court as further erred in relying on the stray sentences in the cross examination of DW1 without fully reading the cross examination in its entirety which resulted in Decreeing the suit.  The Trial Court has not properly considered the cross examination of DW1 wherein he has stated that the Plaintiffs have no share in the suit properties. But the Trial Court only has taken the cross examination of the DW1 in part to hold that the DW1 has admitted that plaintiffs have got a share in the property which is highly illegal. Hence, the Judgment and Decree is without proper scrutiny of evidence on record.  The Trial Court has only considered the cross examination of DW1 without discussing the cross examination of PW1 wherein she has clearly admitted that there was registered partition among the family members on 23.11.2011 and that she along with plaintiff No.2 was allotted a separate schedule which amply prove that there are no other properties to be divided among the family members. This fact was completely lost sight by the court which resulted in decreeing the suit. - 9 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025  The Trial court has not properly considered the fact that there are several sites were formed in Item No.1 by Late Chinnappa during his life time and after his death same are sold in favour of Appellant and Respondents No.3 to 7 through Registered Sale Deeds and the owners are in possession of the same have got the Katha in their favour. Furthermore the Plaintiffs are also signatories to one of the sale deeds in respect of one of the Sites in favour of K.G.Manjunatha. Hence, the Plaintiffs are estopped from claiming share in Item No.1.  The Trial Court though was appraised of the fact that all the site owners are not made as parties and only Defendants No.4 to 10 are made as parties and the suit is bad for not Including all the sites owners as parties, went in error in decreeing the suit. which is prima facie illegal.  The Trial Court has wrongly decreed the suit in respect of Item No.7 wherein no boundaries are shown and the property cannot be indentified which itself is suffice to state that the court has not properly looked into the pleadings and evidence on record.  The Trial Court has wrongly held that the plaintiffs have proved that the suit properties are joint family proprieties and that they are in joint possession without properly considering EXHIBIT D-1 in its proper perspective wherein the recitals clearly state that there are no other joint family properties to be divided amongst the members of the family. Hence the decreetal - 10 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 of the suit is highly illegal, perverse and capricious and is liable to be set aside.  The Appellate Court being a final fact finding court has not properly re appreciated the material evidence on record and has simply concurred with the findings of the Trial Court which is manifestly illegal and is liable to be set-aside.  The Appellate court has erred in concluding that the partition effected on 23.07.2011 is only respect of one property and that the said partition has no severance of status by metes and bounds and that the theory of partition cannot be accepted is highly unjust for the reason that in the partition deed EXHIBIT D1 it is clearly mentioned that there are no other joint family properties to be divided among the parties for which the plaintiffs are signatories apart from the fact that they have been allotted a separate schedule. Hence, the reasoning of the learned judge that there is no partition is contrary to the recitals of EXHIBIT D1 and hence impugned Judgment and Decree is liable to be set at naught.  The Appellate Court has not properly considered the application for additional evidence which throw light on the defense of the appellate and hence dismissing IA is highly illegal and unjust.  The Appellate Court has proceeded the stray sentences in the cross examination of DW1 without completely looking into the same and further has not properly considered the admission of PW1 in cross examination wherein she has admitted the partition dated 23.11.2011 - 11 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 EXHIBIT D1. If the same was considered the suit ought to have been dismissed.” 9. Appellant has raised the following substantial questions of law before this court. i. Whether the courts below are justified in decreeing the suit in respect of Item No.1 which is admittedly a converted land wherein several sites are formed and it is no more agricultural land and coming within the limits of Ward No.26, Kolar and as such suit is maintainable? ii. Whether the courts below are justified in Decreeing the suit in respect of Item No.7 which is un-identifiable as the same is not described by boundaries? iii. Whether the Courts below are justified in decreeing the suit based on the stray sentences in the cross examination DW1 without completely looking into the evidence and thereby the decree of suit is proper? iv. Whether the courts below are right in decreeing the suit without properly considering the recitals in EXHIBIT D1 wherein it is recited that there are no other properties among the family members to be divided and further the Plaintiffs were allotted share and in view of the same the suit for partition is maintainable? - 12 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 v. Whether the suit for partition is maintainable in view of earlier partition vide EXHIBIT D1 for which Plaintiffs are parties and are estopped from claiming share in the suit properties especially in view of the recital in the partition deed that there are no other properties to be divided among the family members? vi. Whether the courts below have properly appreciated the material evidence on record and decreed the suit of the plaintiffs? vii. Whether the courts below have properly considered the cross examination of PW1 in its proper perspective and thereby the decreetal of the suit is proper? viii. Whether Appeal court is justified in dismissing IA for additional evidence without passing any order in the operative portion of the impugned order? ix. Whether the Appellate Court has properly re- appreciated the evidence on record as required under 41 Rule 31 of CPC?” 10. Sri S. Vishweswaraiah, learned counsel for the appellant reiterating the grounds in the appeal memorandum contended that defendant No.1 to 3 did not properly contest the matter. Therefore, the present appellant could not properly establish the fact of previous partition which is detrimental to - 13 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 the interest of the present appellant and therefore, decree of the Trial Judge confirmed by the First Appellate Court, granting 1/5th share to the plaintiffs has resulted in miscarriage of justice. Thus, sought for admitting the appeal for further consideration. 11. He would also contend that the suit properties were shown as agricultural properties whereas item No.1 of the suit properties was converted for non agriculture purpose and sites were formed and defendant Nos.4 to 7 and others have purchased the portions of the suit property as individual sites which has been ignored by the learned Judges in both the Courts resulting in miscarriage of justice and sought for allowing the appeal. 12. Per contra, learned counsel for respondents - Sri Ramakrishna Hegde opposes the appeal grounds. 13. He would further contend that assuming that the suit item No.1, of the suit schedule properties is converted during the lifetime of the father of plaintiffs and defendant Nos.1 to 3, in view of the fact that their father died intestate and there was no proof of previous partition between - 14 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 P.Chinnappa and his children, applying the principles of law enunciated in the case of Vineeta Sharma vs. Rakesh Sharma reported in (2020)9 SCC 1, all the children of P.Chinnappa have succeeded to 1/5th share and therefore, the alienation, if any, would not affect the rights of the plaintiffs and sought for dismissal of the appeal. 14. Having heard the arguments of both sides, this Court perused the material on record meticulously. 15. On such perusal of the material on record, the basis for laying the claim by the appellant is on the probative value of Ex.D.1, which is a registered partition deed dated 23.07.2011. 16. Admittedly, the suit properties are not subject matter of Ex.D.1. Therefore, even assuming that Ex.D.1 is a valid document and held to be proved, it did not take away the rights of the plaintiffs and defendant Nos.1 to 3 in respect of the suit properties. 17. Therefore, the contentions urged on behalf of the purchasers that there was a previous partition and therefore, - 15 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 plaintiffs are not entitled for any share in the suit properties cannot be countenanced in law. 18. Admittedly, plaintiffs being the daughters of P.Chinnappa and defendant Nos.1 to 3 are the sons of P.Chinnappa, in the absence of any testamentary deeds executed by P.Chinnappa during the course of his lifetime, the rights accrued to the plaintiffs by natural succession cannot be lost sight while upholding the decree of the Trial Court confirmed by the First Appellate Court. 19. It is settled principles of law and requires no emphasis that unless the properties are divided by metes and bounds, every co-owner enjoys the rights in the suit properties in every inch of the land. 20. Therefore, mere conversion and converting the property into individual sites did not take away 1/5th share of each of the plaintiffs even in the converted land and sites formed thereof. 21. Thus, the only remedy for the present appellant is to seek for equitable relief before the Trial Court in Final Decree - 16 - HC-KAR NC: 2025:KHC:30391 RSA No. 392 of 2025 Proceedings praying to allot the share to his vendors insofar as the property held by defendant No.4. 22. Reserving such liberty for the appellant, to seek for the equitable partition in the final decree proceedings, this Court is of the considered opinion that the substantial questions of law raised in the appeal are not sufficient to admit the appeal for further consideration. 23. Hence, in view of the foregoing discussion following order is passed: ORDER Appeal is meritless and hereby dismissed. No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR