- 1 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 353 OF 2021 (PAR) BETWEEN: SMT. SHARADAMMA W/O NAGARAJ, AGED ABOUT 42 YEARS, R/AT MELINAPETE, HOSAKOTE BENGALURU RURAL DISTRICT - 560 067. PRESENTLY RESIDING AT ULLUR KANE, SONADENAHALLI GATE, CHINTHAMANI ROAD, KUMBALAHALLI POST, HOSAKOTE TALUK, BENGALURU RURAL DISTRICT - 562 114. …APPELLANT (BY SRI. NAGARAJA HEGDE, ADVOCATE) AND: SRI. MUNIYAPPA SINCE DECEASED BY LRS 1. SRI. MUNIKRISHANAPPA, S/O LATE MUNIYAPPA, AGED ABOUT 68 YEARS, 2. SRI. MUNINARAYANAPPA S/O LATE MUNIYAPPA, AGED ABOUT 65 YEARS, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 SRI. MUNIRAJAPPA BY LRS 3. KAVERAMMA, W/O MUNIRAJAPPA, AGED ABOUT 48 YEARS, 4. SMT. ANJULAMMA D/O LATE MUNIRAJAPPA, AGED ABOUT 31 YEARS, 5. SRI. ABBAIAH S/O LATE MUNIRAJAPPA, AGED ABOUT 28 YEARS, RESPONDENTS NO.1 TO 5 R/AT KATTIGENAHALLI, JALA HOBLI, BENGALURU NORTH TALUK, BENGALURU URBAN DISTRICT - 560 064. 6. SMT. MALLIKA W/O MUNIYAPPA, D/O MUNIRAJAPPA, AGED ABOUT 24 YEARS, R/AT RAMAPURA VILLAGE, BIDARAHALLI HOBLI, BENGALURU SOUTH TALUK. 7. SMT. ROOPA W/O NAGARAJA, D/O LATE MUNIRAJAPPA, AGE ABOUT 22 YEARS, R/AT NEAR KESHAVASWAMY TEMPLE REDDYPETE, VIJAYAPURA, DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT - 562 135. - 3 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 8. SR. NANJAPPA S/O LATE MUNIYAPPA, AGED ABOUT 61 YEARS, 9. SRI. JAYARAMAIAH S/O LATE MUNIYAPPA, AGED ABOUT 59 YEARS, SMT. JAYALAKSHMAMMA W/O ERASAPPA, SINCE DECEASED BY LR'S 10. SRI. KUMAR S/O LATE ERASAPPA, AGED ABOUT 40 YEARS, 11. SMT. MUNIRATHNAMMA D/O LATE ERASAPPA, AGED ABOUT 35 YEARS, 12. RAMACHANDRA S/O LATE MUNIYAPPA, SINCE DEAD BY LR'S 12(A). SMT. MANJULA W/O LATE RAMACHANDRA AGED ABOUT 96 YEARS 12(B). SMT. NETRAVATHI W/O MOHAN D/O LATE RAMACHANDRA AGED ABOUT 26 YEARS 12(C). SMT. NANDINI W/O PRADEEP - 4 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 AGED ABOUT 24 YEARS R/AT KESHVAPPANAVRAMANE DHARMAYU TEMPLE STREET REDDY PETE, VIJAPURA TOWN VIJAPURA HOBLI, DEVANAGAHALLI TALUK, BENGALURU RURAL DISTRICT. 12(D). SRI. MITHUN S/O LATE RAMACHANDRA AGED ABOUT 22 YEARS DEFENDANT 12(A), 12(B), 12(D) ARE RESIDING AT KATTIGENA HALLI VILLAGE BENGALURU MAIN ROAD, YELAHANKA POST, JALAHALLI HOBLI, BENGALURU NORTH TALUK. 13. NAGARAJA S/O LATE MUNIYAPPA, AGED ABOUT 51 YEARS, RESPONDENTS NO.8 TO 13 ARE R/AT KATTIGENAHALLI, JALA HOBLI BENGALURU NORTH TALUK, BENGALURU URBAN DISTRICT - 560 064. 14. SMT. RATHNAMMA W/O CHIKKAYERAPPA, AGED ABOUT 49 YEARS, R/AT HESARAGATTA, SHIVAKOTE POST, BENGALURU NORTHE TALUK - 560 089. 15. SRI. SRINIVASA S/O LATE MUNIYAPPA, AGED ABOUT 45 YEARS, R/AT KATTIGENAHALLI, JALA HOBLI - 5 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 BENGALURU NORTH TALUK, BENGALURU URBAN DISTRICT - 560 064. 16. SMT. PADMAMMA W/O VENKATESHA, AGED ABOUT 43 YEARS, R/AT YALAVALLI ROAD, VIJAYAPURA, DEVANAHALLI TALUK - 562 135. …RESPONDENTS (BY SMT. VIJAYA SHEKARA GOWDA V, ADVOCATE FOR R1 TO R3, R5, R8, R9, R13, R15 & R12(A TO D); SMT. B.M. KAVYA, ADVOCATE FOR R4; SRI. B.J. KRISHNA, ADVOCATE FOR R6 AND R7, R10 AND R16 ARE SERVED; VIDE ORDER DATED 28.07.2025, R11 AND R14 ARE PLACED EX-PARTE) THIS RSA IS FILED UNDER ORDER 42 RULES 1 AND 2 R/W SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.08.2020 PASSED IN RA.NO.15001/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, DEVANAHALLI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 08.12.2016 PASSED IN O.S.NO.2235/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 6 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 ORAL JUDGMENT Heard Sri. Nagaraja Hegde, learned counsel for the appellant and Sri. Vijaya Shekara Gowda V., learned counsel for the respondents. 2. Plaintiff in O.S. No.2235/2006 is the appellant in the second appeal challenging the decree of the suit in part by the Trial Judge confirmed by the First Appellate Court. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: A suit came to be filed by the plaintiff contending that plaintiff and defendants No.1 to 12 are the members of joint family and they are in joint position and enjoyment of the suit properties which are more fully described hereunder: - 7 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 All that piece and parcel of the land bearing Sy.No.25, to an total extent of 6 acres 13 guntas, situated at Kattigenahalli Village, Jala Hobli, Bengaluru North Taluk (Yelahanka) bounded on: East by : Siddappa and Munianjanappa's property West by : Oni Passage and Water channel North by : Basappa's land South by : Dongara 4. It is her contention that first defendant is her father and he did not manage the family property on account of his illness; taking advantage of the situation, sixth defendant had been given the power to manage the suit property who in turn did not take necessary interest to protect the properties of the joint family. 5. Defendants No.7 and 12 are married and they are living separately with their respective husbands and sixth defendant with an intention to deceive the family members and knock off the - 8 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 ancestral property, sold without consent of the plaintiff to other defendants. Out of the sale proceeds, he acquired a land in his own name. 6. It is also contended that sixth defendant sold one of the joint family properties named as 'Bande Hola' and purchased 2 acres of land in Sy.No.25 of Kattigenahalli Village and as such, said land also a joint family property. 7. Plaintiff's grandmother said to have mortgaged 2-00 acres of land in Sy.No.25 out of total extent of 6 acres 21 guntas in the name of Pilimma w/o. Dodda Gullappa. 8. Sixth defendant instead of redeeming the mortgage property, purchased the same in his own name from Smt. Pillamma by utilizing the joint family funds and as such, said properties also joint family properties and sought for share in the suit property. - 9 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 9. Upon receipt of the summons, defendants appeared through their respective counsels and filed different written statements. First defendant during the pendancy of the suit died leaving behind plaintiff and defendants No.2 to 12 as his legal representatives so also, fourth defendant died and his legal representatives were brought on record. 10. In the written statements, defendants have denied the plaint averments in toto but admitted that Doddabbaiah had two sons. It is further assertion in the written statement that there was a division in the family of Doddabbaiah and there was a specific denial with regard to the allegations levelled against the sixth defendant in mismanaging the property and purchasing the property which was mortgaged by the plaintiff's grandmother by utilizing the family funds in Sy.No.25 after selling the 'Bande Hola'. - 10 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 11. It is also contended that 6 acres 21 guntas of the land as is contended by the plaintiff did not exclusively belong to first defendant and out of 6 acres 21 guntas, 2 acres of the land in the family property is the family property and it was belonging to Smt. Pillamma which was purchased by her from Puttaraju. 12. When Smt. Pillamma expressed her willingness to sell the land, sixth defendant purchased the same for valuable sale consideration from out of his earnings and therefore, only 4 acres 21 guntas of the land was given to the share of Ramaswamappa, who is the brother of the first defendant. 13. It is further contended that 2 acres 21 guntas of the remaining land, 0-08 guntas was the kharab land and there was a partition between first defendant and his brother Ramaswamappa which has - 11 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 taken place long back and therefore suit is bad for non-joinder of necessary parties. 14. Based on the arrival contentions of the parties necessary issues were also raised and during the pendancy there was a registered partition deed therefore, an additional issue was raised, which reads as under: 1) Whether the plaintiff proves that herself and defendants No.1 to 12 constitute undivided joint Hindu family and the suit schedule property is their joint family property? 2) Whether the plaintiff further proves that, the defendant No.6 has sold all the ancestral property without the consent of the plaintiff and other defendants and out of the sale proceeds has purchased the suit schedule property? 3) Whether the plaintiff further proves that, herself and defendants No.1 to 12 are in joint possession and enjoyment of the suit schedule property? - 12 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 4) Whether the suit is bad for non-joinder of necessary parties? 5) Whether the valuation made and payment of court fee is correct and sufficient? 6) Whether the plaintiff is entitled to the reliefs sought for? 7) What order or decree? ADDITIONAL ISSUES 1) Whether the plaintiff proves that the sale deed dated 27.11.2006 and Partition Deed dated 15.12.2006 are not binding on her? 15. After recording the evidence of the parties and hearing arguments of the parties, learned judge decreed the suit of the plaintiff in part, by answering issue Nos.1, 3 and 6 and additional issue No.1 as 'Partly affirmative' and issue Nos.2 and 4 'in the negative'. - 13 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 16. The suit of the plaintiff were decreed to the extent of 1/12th share to the plaintiff in 2 acres 13 guntas of land in Sy.No.25 of the suit property. 17. The operative portion of the judgment of the Trial Court reads as under: Suit filed by the plaintiff is Partly Decreed with costs. The plaintiff is entitled for 1/12th share in the 2 acres 13 guntas of land in Sy.No.25 of the suit schedule property. Further, the registered Partition Deed dated 15.12.2006 held between the defendants during the pendency of the suit is not binding on the plaintiff's 1/12th share in the 2 acres 13 guntas of land in Sy.No.25. 18. Being aggrieved by the same, other defendants filed Regular Appeal so also Cross Appeal was filed by the plaintiff and defendant No.7. Learned Judge in the First Appellate Court issued notices to the parties. However, the appeal filed by other defendants - 14 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 were withdrawn and the matter proceeded only with regard to the Cross Appeal filed by the plaintiff and seventh defendant. 19. Learned Judge in the First Appellate Court in the light of the arguments canvassed on behalf of the plaintiff, took into consideration the probative value of the sale deed executed by Sri. Puttarajappa in favour of Smt. Pillamma marked as Ex.D3 dated 21.01.1965 and has confirmed the decreeing of the suit of the plaintiff in part by supplementing additional reasons in paragraphs Nos.20, 21 and 22 which are culled out hereunder for ready reference : "20. As discussed supra, the plaintiff has specifically contended that the defendant No.6 had purchased 2 acres of land by investing the sale proceeds of land known as Bande Hold. In order to prove that the said property was sold by defendant No.6 or to prove that there was such property in the possession of joint family, the plaintiff has not produced any piece of document in her evidence. Apart from that, the plaintiff has not produced any evidence in the form of - 15 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 document to show that there was partition between the defendant No.1 and his brother after demise of grand father. Further, the documents produced by the defendant No.6 in his evidence falsifies the claim of the plaintiff that the properties are purchased by the defendant No.6 from one Pillamma was originally belongs to plaintiff and it was mortgaged by their grand mother. The original sale deed dated 21.01.1965 was marked as Ex.D.3 which evident that Pillamma had purchased that property from one S. Puttarajappa. 21. Apart from that, the document Ex.D.2 the copy of panchayath parikath shows that there was only 4 acres 20 guntas of property was available in the joint family which was divided among the defendant No.1 and his Brother on 18.10.1994. Subsequently, they have entered into a registered partition on 16.12.2006, whereby 4 acres 13 quntas of land in Sy.No.25 situated at Kattigenahalli Village has been divided among late Muniyappa and his brother Ramaswamappa. In the above partition 2 acres 13 quntas of land fell to the share of defendant No.1. 22. It is settled position of law that mere assertion without any proof no use. The burden is upon the plaintiff to prove their assertion in order to succeed in their claims. The learned Trial Judge upon appreciation of oral and documentary evidence has rightly held that in respect of entire suit schedule property, the plaintiff has failed to made out a case for the relief of partition. I do not find any illegalities or infirmities in the findings recorded by the learned Trial Judge to warrant interference. Therefore, the cross appeal filed by the plaintiff - 16 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 and LR's of defendant No.7 is liable to be dismissed. Accordingly, the points for consideration are answered." 20. Being further aggrieved by the dismissal of the Cross Appeal, plaintiff is before this Court on the following grounds:  The Judgment and Decree passed by the appellate court is illegal, erroneous, perverse, capricious, arbitrary, defective and opposed to law.  The learned Trial Judge gravely erred in holding that Ex- D-1 sale deed dated 08.06.1947 reveals that the suit schedule property in Sy.No. 25 was vested with the father of the deceased defendant no. 1 when the document at Ex-D-1 actually pertains to Sy. No. 24 and not suit Sy.no. 25 discussed at para 22 page 14 of the judgment.  The learned 1st appellate court gravely erred in coming to the conclusion that the portion of schedule property claimed to have been purchased by defendant no. 6 under EX-D-4 is his self acquired property and not joint family property available for division.  The learned 1st appellate court gravely erred in coming to the conclusion that there is no material on record to prove partition between 1 st defendant and his brother - 17 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 Ramaswamappa in spite of Ex-D-2 and Ex-D-5 at page 17 para 20 of the Judgment.  The learned Trial Judge gravely erred in holding that the 2 acres of land purchased by defendant no. 6 under Ex-D-4 is the self acquired property of defendant no.6.  The learned Trial Judge gravely erred in holding that Section 6 of the Hindu Succession Act, 1956 is not applicable to the facts of the case but Section 8 of the Hindu Succession Act, 1956 is applicable to the facts of the case  The learned Trial Judge gravely erred in upholding the Two sale deeds produced at Ex-P-3 and Ex-P-4 dated 27.11.2006 executed during the pendency of the suit by Defendant no. 6 in favour of defendant no. 3 and 5 respectively.  The learned Trial Judge gravely erred in coming to the conclusion that the remaining 2 acres of land in Sy. No. 25 standing in the name of defendant no. 6 is not available for division between the plaintiff and defendants.  The learned Trial Judge gravely erred in holding that the sale deeds dated 27.11.2006 produced at Ex-P-3 and Ex- P-4 executed by defendant no. 6 was his self acquired property and hence was not available for division and plaintiff had no share in the said land, - 18 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021  The learned Trial Judge gravely erred in failing to mark the Regd. Partition dated 15.12.2006, document no. 24837/2006-07 produced by the defendant no. 6 even though findings have been given in respect of the said document at para 24 of the judgment at page 16.  The learned Trial Court and 1st appellate court failed to properly appreciate the oral and documentary evidence of the appellant/plaintiff and respondent no 6/defendant no.6.  The Judgment and Decree passed by the Courts below in respect of the portion of schedule property is not sustainable in law and on the facts of the case.  The Courts below have gravely erred in giving a finding of fact ignoring completely an important piece of evidence and on misconstruction and misreading of evidence being such a defect justifying interference in second appeal.  The courts below have gravely erred and over looked a material piece of evidence produced at Ex-D-1 and therefore the judgment suffers from the infirmity of non- consideration of material evidence on record, which is a point of law for which a concurrent finding of fact is liable to be set aside in a second appeal.  The Hon'ble Court is empowered to interfere on the ground of it being erroneous and there is substantial error - 19 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 or procedure prescribed by law which has defect in the produced error or defect in the decision of the case upon merits. 21. An application is also filed by the plaintiff seeking the permission of this Court to place additional evidence to show that the sale deed contain the survey number as 24 and it has been wrongly made as Sy.No.25 and to substantiate the same, additional documentary evidence are sought to be placed on record. 22. Sri Nagaraj Hegde, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum in the light of the following substantial questions of law contended that, both the Courts have misdirected themselves in not properly appreciating the case of the parties and erred in law in granting 1/12th share to the plaintiff out of 2 acres 13 guntas - 20 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 in land in Sy.No.25 and thus sought for admitting the appeal for further consideration. 23. Substantial questions of law raised the appeal reads as under: 1. Whether the lower courts failed to consider material and important and relevant evidence on record produced Ex-D-1 by mis-appreciation and misconstruction and mis-reading of oral and documentary evidence and directly and substantially affects the rights of the parties. 2. That the Lower Court has committed substantial error in Law when it failed to consider material evidence on record produced at Ex-D-1 which in fact pertains to Sy.No. 24, but which is presumed to be in respect of Sy. No. 25 being the suit schedule property, thereby arriving at finding of fact based on mis-appreciation of oral and documentary evidence and finding of fact is arrived at ignoring important relevant evidence and hence finding is one bad in law. 24. Per contra, Sri. Vijay Shekhar Gowda, learned counsel for the contesting respondents supports the impugned judgements. He contents that in the suit itself, the suit for partition is in respect of property in Sy.No.25 of Kattigenahalli Village and village and therefore, as an afterthought placing the - 21 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 additional evidence on record that too in the second appeal is per se not maintainable. 25. He also argued that both the Courts have properly appreciated the oral and documentary evidence placed on record and rightly decreed the suit and therefore, appeal is meritless and needs to be dismissed. 26. Having heard the arguments of both sides, this Court perused the material on record meticulously. 27. On such perusal of the material on record, it is crystal clear that the parties have joined the issue in respect of suit properties mentioned supra. There is a clear admission in the pleadings as well as in the oral evidence of the plaintiff that there was a previous partition between her father and Ramaswamappa way back in the year 1984. - 22 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 28. Subsequent partition that has taken place which is registered is admittedly during the pendancy of the suit that is on 15.12.2006. There was an amendment to the plaint with regard to the subsequent partition which has taken place during the pendancy of the suit. 29. Therefore additional issue No.1 as referred to supra has been raised. In fact there were two additional issues that were framed, but additional issue No.2 was deleted. 30. Taking note of the mentioning of the specific and unambiguous survey number in the plaint schedule and placing the oral and documentary evidence with regard to the suit items by the plaintiff and thereafter when parties have joined the issue with regard to the plaint schedule property, it is too late for the plaintiff to contend contra by way of placing - 23 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 additional evidence, that too before this Court, in this second appeal. 31. Further, under Section 100 of the Code of Civil Procedure, this Court is only required to consider the substantial questions of law to admit the appeal for further consideration and not allow the parties to place additional facts. 32. Therefore this Court has rightly directed that the additional evidence would be considered along with the main if the appeal is to be admitted on substantial questions of law. 33. In the teeth of the admission by the plaintiff in the form of pleadings and the oral and documentary evidence on record by the plaintiff on which the entire trial has taken place, plaintiff seeking the permission of this Court to alter the very survey number of the - 24 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 land from 24 to 25 by placing the additional evidence on record cannot be countenanced in law. 34. Admittedly, first defendant being the father of the defendant who entered into partition with Ramaswamappa way back in the year 1984 did not find any discrepancy or controversy with regard to the survey number of the land nor the location of the suit property. 35. Mortgage deed said to have been executed by sixth defendant in favour of Smt. Pillamma and later on purchasing the property from Smt. Pillamma is also taken note of by both the Courts and has specifically stated that subsequent to oral partition that took place, sixth defendant having purchased the property from Smt. Pillamma cannot be taken into consideration as joint family property. - 25 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 36. Further, First Appellate Court as referred to supra has specifically pointed out that no semblance of oral or documentary evidence placed on record to show that sixth defendant neither mismanaged the property nor purchased one of the items of the suit property by utilising the joint family funds. 37. Thus, under such circumstances, what has fallen to the share of the plaintiff, in her father's share who was first defendant before the Trial Court. Thus, learned trial Judge has rightly granted 1/12th share in the suit property in land measuring 2 acres 13 guntas in Sy.No.25 of Kattigenahalli Village. 38. Therefore, the substantial questions of law raised in the appeal memorandum do not merit for further consideration. - 26 - HC-KAR NC: 2025:KHC:33405 RSA No. 353 of 2021 39. In view of foregoing discussion, following order : ORDER (i) Appeal is meritless and hereby dismissed. (ii) Consequently, all pending IAs would not survive for consideration. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 31 CT: BHK