- 1 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100951/2024 (PAR/POS) BETWEEN: SMT. SUJATA W/O. SOMASHEKHAR DHANASHETTI, AGE: 34 YEARS, OCC: HOME MAKER, R/O: HITTINAHALLI, TAL AND DIST: VIJAYPUR – 586 127. …APPELLANT (BY SRI. I. Y. PATIL, ADVOCATE) AND: 1. SMT. BORAMMA W/O. GURAPPA SANDIMANI, AGE: 51 YERS, OCC: HOME MAKER, R/O: HITTINAHALLI, TAL AND DIST: VIJAYPUR – 586 127. 2. RAVI S/O. GURAPPA SANDIMANI, AGE: 37 YERS, OCC: NIL, R/O: HITTINAHALLI, TAL AND DIST.:VIJAYPUR – 586 127. 3. SMT. MAHADEVI W/O. SANGAPPA SANDIMANI, AGE: 56 YEARS, OCC: HOME MAKER, R/O: GIRISAGAR, TQ: BILAGI, DIST: BAGALKOT – 587 116. 4. VANI D/O. SANGAPPA SANDIMANI, AGE: 23 YEARS, OCC: STUDENT, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 R/O: GIRISAGAR, TQ: BILAGI, DIST: BAGALKOT – 587 116. 5. MALLAMMA D/O. SANGAPPA SANDIMANI, AGE: 21 YEARS, OCC: STUDENT, R/O: GIRISAGAR, TQ: BILAGI, DIST: BAGALKOT – 587 116. 6. MALLAYYA S/O. SANGAPPA SANDIMANI, AGE: 17 YEARS, OCC: STUDENT, R/O: GIRISAGAR, TQ: BILAGI, DIST: BAGALKOT – 587 116. 7. ASHWINI D/O. SANGAPPA SANDIMANI, AGE: 16 YEARS, OCC: STUDENT, R/O: GIRISAGAR, TQ: BILAGI, DIST: BAGALKOT – 587 116. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, CALL FOR LCR’S IN O.S.NO.41/2015, ON THE FILE OF THE COURT OF CIVIL JUDGE AND JMFC, BILAGI; SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 25.11.2023 PASSED BY THE LEARNED HON’BLE THE COURT OF SENIOR CIVIL JUDGE AND JMFC, BILAGI IN R.A.NO.25/2022 AND THE JUDGMENT AND DECREE PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, BILAGI IN O.S.NO.41/2015 DATED 15.09.2022, BY ALLOWING THIS APPEAL AND DECREEING THE O.S.NO.41/2015 FILED BY THE PLAINTIFF/APPELLANT AND ETC., THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. With the consent of learned counsel for the appellant, the matter is taken up for final disposal. 2. This appeal is by the plaintiff aggrieved by the judgment and the decree dated 15.09.2022 passed in O.S.No.41/2015 on the file of Civil Judge and JMFC, Bilagi (for short, ‘the trial Court’) by which the suit of the plaintiff for partition and separate possession has been dismissed which is confirmed by the judgment and decree dated 25.11.2023 passed in R.A.No.25/2022 on the file of Senior Civil Judge and JMFC, Bilagi (for short, ‘the First Appellate Court’). 3. The above suit is filed by the plaintiff claiming that defendant No.1 is her mother and defendant No.2 is her brother and all of them constitute a joint Hindu family. That the suit property bearing Sy.No.103/3B measuring 2 acres situated at Honnihal village is the joint family ancestral property. That the husband of defendant No.3 by name Sangappa had allegedly purchased the suit property - 4 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 from the father of the plaintiff. The said Sangappa is no more and is represented by his legal heirs. The suit property formed part of a larger extent of the family property, which was subject matter of a partition in the year 1993. In the said family partition, suit property is allotted to the share of father of the plaintiff namely Gurappa Sangappa Sandimani and his name is mutated vide M.E.No.3278. That the plaintiff and defendant Nos.1 and 2 are in possession and enjoyment of the suit property as joint owners. That the father of the plaintiff during his lifetime had allegedly executed a deed of sale dated 23.12.2000 in favour of defendant No.3. Plaintiff being a minor, she was not given any share in the suit property. As such, her father could not have alienated her share in the suit property and he has acted against the interest of the plaintiff. Hence, the suit. 4. Defendant Nos.1 and 2 filed written statement admitting the plaint averments sought for decreeing of the suit. Defendant Nos.3 and 6 in their written statement contended that the father of the plaintiff and defendant - 5 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 No.2 and husband of defendant No.1 had borrowed money from the husband of defendant No.3 and it was agreed that after the repayment of said amount, he would execute a sale deed in favour of the father of the plaintiff. As such, the deed of sale that was executed by the father of the plaintiff in favour of husband of defendant No.3 was a nominal sale deed. As such, they have filed a suit in OS No.79/2011 seeking cancellation of sale deed. That the said suit came to be dismissed and the appeal filed by them is still pending consideration. Therefore, they are claiming their share in the property by a counter claim. 5. Defendant Nos.3 and 7 filed the written statement denying the plaint averments and contended that defendant Nos.1 and 2 already having been filed suit in OS No.79/2011 challenging the deed of sale dated 23.12.2000 executed by father of the plaintiff. The said suit was filed against the husband of defendant No.3 and upon the demise of husband of defendant No.3, the legal representatives of deceased husband of defendant No.3 are come on record. The said suit has been dismissed. - 6 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 The plaintiff was not party to the said suit and without even reserving her liberty to file a fresh suit, has filed the present suit for partition. Hence, sought for dismissal of the suit. 6. The Trial Court based on the pleadings on record framed the following issues: 1. Whether plaintiff proves that plaintiff and defendant No.1 and 2 are joint family? If so, suit property is the joint family property of plaintiff and defendant No.1 and 2? 2. Whether plaintiff proves that plaintiff is entitled to 1/4th share in suit property? 3. Whether defendant No.3 to 7 prove that husband of defendant No.3 has purchased suit property from the father of plaintiff? If so, sale deed executed is not binding upon plaintiff? 4. Whether suit of plaintiff is hit by principles of res-judicata? 5. Whether suit of plaintiff is time barred? 6. Whether plaintiff is entitled to the relief as sought for? 7. Whether plaintiff is entitled to any other remedy? 8. What order or decree? - 7 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 7. Plaintiff examined herself as PW1 and produced three documents marked as Ex.P1 to P3. Defendants examined five witnesses as DW1 to DW5 and got marked 12 documents as Ex.D1 to D12. The Trial Court answered issue Nos.1, 2 and 4 to 7 in the negative and issue No.3 partly in the affirmative, and consequently, dismissed the suit of the plaintiff. 8. Being aggrieved, plaintiff preferred the regular appeal in RA No.25/2022. The First Appellate Court framed the following points for its consideration; 1. Whether the learned Civil Judge & JMFC, Bilagi is justified in dismissing the suit of the plaintiff filed in O.S.NO.41/2015 dated: 15.09.2022? 2. Whether the respondent No.3 to 7 have made out sufficient grounds to allow IA No.2 filed under Order 41 Rule 27 r/e sec 151 of CPC ? 3. What order? 9. On re-appreciation of the evidence, the First Appellate Court answered the point No.1 in the affirmative and point No.2 in the negative and consequently, - 8 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved, the plaintiff is before this Court. 10. Sri. I. Y. Patil, learned counsel for the plaintiff/appellant re-iterating the grounds urged in the memorandum of appeal submits that the Trial Court and the First Appellate Court have grossly erred in holding that the plaintiff has not proved the properties to be the ancestral joint family properties without averting to the document namely Ex.P2 which is the mutation register entry vide MR No.3278 reflecting the partition of the property amongst the family member of the father of the appellant/plaintiff. In the light of the said document being made available, the Trial Court and the First Appellate Court ought not to have held that the plaintiff had failed to prove the nature of the property. 11. It is his further submission that though the Trial Court and the First Appellate Court have taken exception to filing of suit in OS No.79/2011 by defendant Nos.1 and 2, the plaintiff herein cannot be made responsible as she is - 9 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 not party to the said proceedings. As such, he submits that the substantial question of law would arise for consideration and hence, seeks for allowing of the appeal. 12. Heard and perused the records. 13. It is an admitted fact that the plaintiff along with defendant Nos.1 and 2 had caused issue of a legal notice to the husband of defendant No.3 namely Sangappa Shivappa Sandimani through their counsel on 11.04.2011 calling upon him to cancel the deed of sale dated 23.11.2000 and to re-convey the same along with delivery of possession within the period of 15 days from the date of receipt of notice. Ex.D11 is issued by the husband of defendant No.3 on 25.04.2011 denying and refuting the averments made in the notice dated 11.04.2011. It is thereafter, the defendant Nos.1 and 2, the mother and brother respectively of the plaintiff, have filed the suit in O.S. No.79/2011 seeking judgment and decree for cancellation of the sale deed dated 23.12.2000 that had been executed and registered by father of the plaintiff and - 10 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 defendant Nos.2 and the husband of defendant No.1 in favour of husband of defendant No.3. 14. Admittedly the said suit on contest has been dismissed. It is thereafter, present suit is filed by the plaintiff for relief of partition and separate possession. The Trial Court having taken note of the fact that the plaintiff along with defendant Nos.1 and 2 having issued the aforesaid notice on 11.04.2011 was aware of the execution of deed of sale and was also aware of filing of the suit by defendant Nos.1 and 2 yet she did not join in filing of the said suit and has subsequently opted to file the suit in question for partition which is after expiry of about 5 years. 15. That apart, the Trial Court has also noticed that except production of mutation entries in Ex.P2 vide MR No.3278, plaintiff has not produced any other document in justification of a claim that the suit property being the ancestral joint family property. Thus, the Trial Court has concluded that the plaintiff had not made out a case and accordingly dismissed the same. The said reasoning and - 11 - HC-KAR NC: 2025:KHC-D:8671 RSA No. 100951 of 2024 conclusion arrived at by the Trial Court have been confirmed by the First Appellate Court on re-appreciation of the pleadings and evidence. 16. In the absence of any ground being made out by the appellant/plaintiff with regard to perversity, illegality or irregularity if any, committed by the Trial Court and the First Appellate Court in dismissing the suit of the plaintiff, this Court do not see any reason to interfere with the same. No substantial question of law would arise for consideration. Accordingly, the appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE SH-para 1 to 3 SMM-para 3 to till end CT-ASC List No.: 1 Sl No.: 57