- 1 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 100384 OF 2018 (DEC/INJ) BETWEEN: 1. IRAPPA S/O. SHIVARYAPPA WARUR AGE: 48 YEARS, OCC: AGRICULTURE, R/O: MISHRIKOTI, TQ: KALAGHATAGI, DIST: DHARWAD-581204. 2. PANISHAPPA S/O. TAVANAPPA ADAPPANAVAR, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: MISHRIKOTI, TQ: KALAGHATAGI, DIST: DHARWAD-581204. …APPELLANTS (BY SRI. LAXMAN T. MANTAGANI, ADVOCATE) AND: 1. 1A) YALLAPPAGOUDA S/O. BASANAGOUDA PATIL SINCE DECEASED BY HIS LRS, SUMANGALA @ BASAMMA W/O. YELLAPPAGOUDA PATIL, AGE: 63 YEARS, OCC: HOUSEHOLD WORK, R/O: ABBIGERI, TQ: RON, DIST: GADAG-582209. 1B) VIRUPAKSHGOUDA S/O. YELLAPPAGOUDA PATIL, AGE: 43 YEARS, OCC: AGRICULTURE @ HOUSEHOLD, R/O: ABBIGERI, TQ: RON, DIST: GADAG-582209. 1C) PARVATI W/O. CHANDRASHEKHAR PUJAR MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:54 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: HALIYAL, TQ: HUBBALLI, DIST: DHARWAD-580023. 1D) SUDHA W/O. MAHESH METI AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: JAKALI, TQ: RON, DIST: GADAG-582119. 2. BODDANGOUDA S/O. BASANAGOUDA PATIL AGE: MAJOR, OCC: AGRICULTURE, R/O: MISHRIKOTI, TQ: KALAGHATAGI, DIST: DHARWAD-581204. …RESPONDENTS (BY SRI. ROHIT S. PATIL, ADVOCATE FOR R1(A TO D) SRI. NAGAPPA B. MENASINAKAI, ADVOCATE for R2) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF II ADDITIONAL DISTRICT AND SESSIONS AND SPECIAL JUDGE AT DHARWAD IN R.A.NO.274/2015 DATED 26.3.2018 CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI (ITINARY COURT AT KALAGHATAGI) IN O.S.NO.168/2009 DATED 03.10.2015, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA ) 1. Heard learned counsel for the appellants and learned counsel for respondents on admission. 2. The appellants, who are defendants No.2 and 3 before the trial Court, have preferred this appeal against the judgment and decree dated 03.10.2015 passed in O.S.No.168/2009 on the file of III Additional Senior Civil Judge, Hubballi (Itinerary Court of Kalghatagi), which was confirmed by II Additional District and Sessions Judge and Special Judge, Dharwad, in R.A.No.274/2015 dated 26.03.2018. 3. The parties are referred to as per their ranks before the Trial Court. 4. The brief facts leading to filing of this appeal are that, the plaintiff and the first defendant are said to be the brothers and that there was a partition in the joint family properties consisting of the plaintiff and defendant No.1 and their mother Shantabai on 17-02-1971 and in the said partition the mother of the plaintiff was given the suit - 4 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 property measuring 7 acres 25 guntas towards her share with a condition that, after her death, the plaintiff has to take eastern side 3.36 acres and the first defendant were to take western ½ portion measuring 3.27 acres in the suit land and accordingly, the names of the plaintiff and first defendant came to be mutated in the record of rights under M.E.No.2298. It is further stated after the death of Shantabai, the plaintiff and the first defendant have inherited the said portions as full and absolute owners and that the plaintiff has been in possession of the eastern portion measuring 3.6 acres in the suit land. However it is alleged that recently the plaintiff came to know that the first defendant got his name entered in the records of the entire extent of the suit land, falsely alleging that his mother Shantabai has bequeathed the entire suit land in his favour on 02-03-1993 even though she had never executed any such Will pertaining to the entire suit land and as such the first defendant alleged to have created a forged Will which is not binding on the share of the plaintiff and that before getting his name entered in the revenue records the entire - 5 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 extent, no notices were issued by the revenue authorities to this plaintiff. The first defendant by taking advantage of his exclusive name being entered to the entire extent of the suit land, has executed a bogus and illegal sale deed dated 18-3-2010 in favour of the defendant No.2 by selling away his 4 acres of land for a consideration of Rs.2,60,000/- and similarly executed another second defendant in favour of the third defendant allegedly selling away the northern portion of the suit land measuring 3.25 acres for a consideration of Rs.2,72,000/- even though he had no legal right to alienate the entire suit land, which is inclusive of the share of the plaintiff. 5. It is further alleged that defendant No.1, at the most, could have alienated his northern portion of land measuring 3.37 acres only and, as such, those sale transactions entered into between the defendants inter-se are not binding on the share of the plaintiff. Immediately, the plaintiff, after coming to know of this illegal transaction got issued a legal notice to defendants on 12-01-2009 to - 6 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 which the defendants alleged to have given false reply. Hence, he filed suit for partition and separate possession. 6. In pursuance of service of notice, defendant Nos.2 and 3 appeared through their counsel, whereas defendant No.1 remained absent. Defendant No.3 filed his written statement denying the claim of the plaintiff, which was adopted by defendant No.2. The third defendant has questioned the maintainability of the suit on the ground that it is barred by limitation, since the plaintiff has not challenged the sale deeds executed in the years 2000– 2001. 7. It is contended that, in view of the allotment of a share to the mother Shantabai, she became the absolute owner of the suit property, which she bequeathed in favour of defendant No.1. Defendant Nos.2 and 3 purchased the suit property from defendant No.1 for valuable consideration, and on these grounds, they have sought dismissal of the suit. 8. Based on the pleadings, the Trial Court framed six issues. - 7 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 9. To substantiate the case of the plaintiff, three witnesses were examined as PW.1 to PW.3, and 14 documents were marked as Exs.P.1 to P.14. Upon closure of the plaintiff’s evidence, defendant No.3 was examined as DW.1, and two other witnesses were examined as DW.2 and DW.3. 13 documents were marked as Exs.D.1 to D.13. Having heard the arguments on both sides, the Trial Court decreed the suit in part. It was ordered and decreed that the plaintiff is entitled to half share in the suit property by metes and bounds, and that the sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 in respect of the suit property is not binding on the plaintiff’s share. Being aggrieved by the judgment and decree passed by the Trial Court, the present appellants preferred an appeal before II Additional District and Sessions and Special Judge, Dharwad, in R.A.No.274/2015, which came to be dismissed on 26.03.2018. Being aggrieved by the judgment and decree of the Courts below, the appellants have preferred this appeal. - 8 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 10. Learned counsel for the appellants submitted that the judgments and decree passed by the Courts below are contrary to the material evidence on record and are unsustainable in law. It is contended that the Courts below failed to consider the conduct of defendant No.1, who colluded with the plaintiff in order to defraud defendant Nos.2 and 3, and deliberately remained absent before the Courts below. The Trial Court also failed to frame an issue with regard to limitation, though the suit is hopelessly barred by time. The appellants had specifically raised a contention in the written statement to the effect that, in view of the sale deed, the suit is barred by limitation. It is further contended that the appellants are in possession of the suit property, and therefore, the relief of possession sought by the plaintiff is misconceived. Both the Courts have also failed to consider the fact that defendant No.1 was the absolute owner of the suit property, the Will being in his favour, remained unchallenged by the plaintiff. 11. Pursuant to the sale, the mutation entries also stood in the name of defendant No.1. This aspect of the - 9 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 matter was not considered and was totally ignored by the Courts below. On all these grounds, the appellants have sought framing of substantial questions of law. 12. I have examined the materials placed before me. 13. Defendant No.1 executed a sale deed in favour of defendant No.2 in respect of the southern portion of the suit land, bearing Survey No.185/1, measuring 4 acres, situated at Mishrikoti, Kalaghatagi. 14. Defendant No.1 also executed a sale deed in favour of defendant No.3 in respect of the northern portion of the land, bearing Survey No.185/1, measuring 3 acres 25 guntas, on 14.06.2001. 15. The plaintiff filed a suit for declaration, permanent injunction, and possession of the property on 19.12.2009. The suit was filed within 12 years from the date of the alleged sale deeds in question; hence, the question of framing an issue regarding limitation does not arise. With regard to the alleged sale deed, both the Courts below have clearly observed that the defendants did not produce the Will, nor did they take steps to prove the Will - 10 - HC-KAR NC: 2025:KHC-D:11278 RSA No. 100384 of 2018 as required under Section 68 of the Indian Evidence Act. Without production of the material document, i.e., the Will, the arguments advanced on behalf of the appellants cannot be accepted. 16. Upon a careful examination of the entire material on record, I am of the considered opinion that both the Courts below have properly appreciated the evidence on record in accordance with law and facts. I do not find any ground to formulate a substantial question of law. Hence, I proceed to pass the following: ORDER The Regular Second Appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE AC CT-CMU LIST NO.: 1 SL NO.: 41