- 1 - RSA No.6042 of 2010 RESERVED ON : 30.08.2025 PRONOUNCED ON : 10.09.2025 IN THE HIGH CCOURT OF KARNATAKA, AT DHARWAD DATED THIS THE 10TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.6042 OF 2010 BETWEEN: SMT. RAJANI D/O. SHANKAR BALEKUNDRI W/O. BALACHANDAR MURKUMBI, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: BANAVASI ROAD, SIRSI, UTTAR KANNADA. …APPELLANT (BY SRI. R.K. KULKARNI, ADVOCATE) AND: 1 . SMT. SUDHA W/O. NANDAKUMAR KUNDRI, AGE: 54 YEARS, OCC: HOUSEHOLD, R/O: TERGAON, TQ. HALIYAL, DIST. KARWAR. 2 . SRI. PARASHURAM MANOHAR BALEKUNDRI, AGE: 48 YEARS, OCC: BUSINESS, R/O: TERGAON, TQ. HALIYAL, DIST. UTTAR KANNADA. …RESPONDENTS (NOTICE SERVED TO R1; R2-SERVICE HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO CALL FOR THE RECORDS AND ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 18.07.2010 MADE IN R.A. NO.98/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE YELLAPUR SITTING AT HALIYAL MODIFYING THE JUDGMENT AND DECREE DATED 23.06.2007 MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:52 +0530 - 2 - RSA No.6042 of 2010 MADE IN O.S.NO.88/2003 BY THE CIVIL JUDGE JUNIOR DIVISION HALIYAL, AND TO DECREE THE SUIT AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQUITY. IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING BEEN HEARD AND RESERVED ON 30.08.2025 AND COMING ON FOR “PRONOUNCEMENT OF ORDERS”, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) This appeal is against the Judgment and decree dated 23rd June, 2007 passed in OS No.88 of 2003 by the Civil Judge (Jr.Dn.), Haliyal (for short “the trial Court”), which is modified by the learned Senior Civil Judge, Yallapura sitting at Haliyal (for short “the appellate Court”) in RA No.98 of 2007 dated 28th July, 2010, holding that the plaintiff and defendant No.1 are entitled for equal share in the suit house, excluding front portion of one room, which is standing in the name of defendant No.2, where the shop is situated. Being aggrieved by both the Judgments, the appellant has preferred this appeal. 2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court. 3. Brief facts leading to this appeal are that the plaintiff- Smt. Rajani, d/o Shankar Balekundri, has filed Suit against the defendants for declaration, partition and separate possession in - 3 - RSA No.6042 of 2010 respect of the suit properties. It is stated in the plaint that the original owner of the suit property was one Kallappa Vaijappanavar who died in the year 1910 leaving behind his wife, Smt. Yellavva Kallappa Vaijappanavar who also died in the year 1940 leaving behind only daughter Smt. Balabai wife of Ramakrishna Baalekundri. The said Balabai had three sons, viz. Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri. During the lifetime, she executed Will dated 1st November, 1936, in favour of the said Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri in respect of the House properties. The said Vishwanath Ramakrishna Balekundri has sold his house property to Ragate family of Thergaon and relocated to Haliyal. As per the Will, the names of respective persons were entered in the Panchayat records. The plaintiff and the defendant No.1 jointly acquired ownership, possession and title over the suit property after the death of their father-Shankar Ramakrishna Balekundri in the year 1977. Therefore, the plaintiff and defendant No.1 have only half share each in the suit property. The defendants have no right, title or interest whatsoever in the suit property and Manohar - 4 - RSA No.6042 of 2010 Ramakrishna Balekundri, his wife and defendant No.2, have illegally created documents with the help of Panchayat authorities in respect of the suit property, which is not binding on the plaintiff. The defendant No.2, without the consent of plaintiff, has published false public notice in “Vijaya Sandesh” Kannada Daily on 01st October, 2003. Hence, the plaintiff is constrained to file the suit for declaration of her share in the suit property. 4. After issuance of summons, defendant No.1 has not chosen to appear before the Court and hence was placed ex parte. Defendant No.2 appeared through Counsel and filed written statement. The gist of written statement is that defendant No.2 has admitted the relationship between the plaintiff and defendant No.2 and categorically denied the Will dated 1st November, 1936 alleged to have been executed by Yallavaa Kallappa Vaijappanagar in favour of Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri. While disputing the alleged Will, the defendant No.2 has stated that the said Will is created and concocted by the defendant No.1 only to file a false suit against defendant No.2. The defendant No.2 has denied the entire allegation made in the plaint. It is further contended that - 5 - RSA No.6042 of 2010 on 4th April, 1965, partition has taken place between the father of the plaintiff and defendant No.1-Shankar Ramakrishna Balekundri; Vishwanath Ramakrishna Balekundri and Manohar Ramakrishna Balekundri. As per the partition, the house property bearing No.28 has been allotted to Vishwanath Ramakrishna Balekundri, the House property bearing No.94 (Old No.156) of Thergaon Village, i.e. the suit property, is allotted by the father of the plaintiff and defendant No.1 i.e. Shankar Ramakrishna Balekundri, by leaving front portion of one room of the said house. The suit property bearing No.84 (old No.147) and front portion of the suit property has been allotted to Manohar Ramakrishna Balekundri. All the properties are ancestral properties of the plaintiff and defendants. The names of Vishwanath Ramakrishna Balekundri, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri were entered in the Panchayat records as per the partition deed, and they were in possession and enjoyment of the respective share. Accordingly, it was sought for dismissal of the suit. 5. Based on the pleadings, the trial Court framed as many as six issues. To prove the case, the power of Attorney Holder of plaintiff got examined as PW1 and marked seven documents as - 6 - RSA No.6042 of 2010 per Exhibits P1 to P7. On behalf of defendants, two witnesses were examined as DWs1 and 2 and marked three documents as Exhibits D1 to D3. 6. Upon hearing arguments of both sides, the trial Court decreed the suit in part with costs declaring that the plaintiff is entitled for the relief of partition and separate possession over the suit property instead of declaration. Plaintiff and defendants 1 and 2 are entitled for one-third share each in the suit property. Being aggrieved by the said Judgment and decree passed by trial Court, plaintiff/appellant herein preferred appeal before the appellate Court in RA No.98 of 2007. Having heard the arguments of the parties, the first appellate Court allowed the appeal in part and modified the Judgment and decree passed by the trial Court, holding that plaintiff and defendant No.1 are entitled for equal share in the suit house, excluding front portion of one room which is standing in the name of defendant No.2, where the shop is situated. Being agreed by the Judgments and decree passed by the trial Court as well as the appellate Court, the appellant is before this Court in this Second Appeal. 7. Sri R.K. Kulkarni, the learned Counsel appearing for the appellant, would submit that the Judgment and decree of both - 7 - RSA No.6042 of 2010 the Courts are contrary to law, evidence on record and the facts of the case. He would submit that both the Courts have failed to appreciate the oral and documentary evidence properly and have erred in drawing inference. Both the Courts have failed to consider that the plaintiff is the absolute owner of the suit property by virtue of the Will executed by late Yallavva Kallappa Vaijappanavar in favour of Shankar Ramakrishna Balekundri, under whom the present appellant and respondent No.1 are claiming as successors. Both the Courts have wrongly considered Exhibit D3-Partition Deed. Learned Counsel would further submit that both the Courts held that the Will executed by Yallavva Kallappa Vaijappanavar dated 01st November 1936, in favour of her three sons, viz. Vishwanath Ramakrishna Balekundri,, Shankar Ramakrishna Balekundri and Manohar Ramakrishna Balekundri, is genuine, legal and valid. It is further submitted that Exhibit D3-Partition Deed is subsequently made valid and legal by paying duty and penalty. Therefore, the entries made in the village Panchayat records on the basis of illegal and invalid document, cannot give any right to defendant No.2. Hence, he would submit that the conclusion arrived at by both the Courts is improper, illegal and against the facts and circumstances of the - 8 - RSA No.6042 of 2010 case. Both the Courts have failed to consider that the Will executed by Yallavva Kallappa Vaijappanavar has been produced in the Court after thirty years and hence it has got genuineness and presumptive value. The appellate Court has allowed appeal and decreed the suit partly by excluding the front room/shop in the suit property that the said portion belongs to respondent No.2. Both Courts have wrongly considered Exhibit D3-Partition Deed produced on behalf of respondent No.2. On all these grounds, it was sought to admit the appeal by framing the substantial question of law. 8. I have examined the materials placed before me and gone through the impugned judgments. In paragraph 19 of its judgment, the first appellate Court has observed as under. “19. After hearing arguments on both side and on going through the picadings as well as the documents produced it is found that the suit property which one of the house belonging to the original propositor one Vanapanavar, who died long back in the year 1910 Icaving behind his wife Smt. Yallawwa who died icaving behind her only one daughter Smt Balabai W/o Ramakrishna Balekundri, the said Smt Balabui had three sons viz (1) Vishwanath Ramakrishna Balckundri (2) Shankar Ramakrishn Balekundri and (3) Manohar Ramakrishna-Balekundri. During the life time of Yellawwa, she has excouted a will dated 1.11.1936 in favour - 9 - RSA No.6042 of 2010 of Shankar Ramakrishbna Balekundri the father of the plaintiff and defendant No.1. As per the same will she bequeathed one house property to Vishwanath Ramakrishna Balckundri, and one more house property to Manohar Ramakrishna Balckundri. Afier hor death, all these three persons acquired ownership, title, right in their respective house properties as per the will. Sri Vishwanath Ramakrishna Balckundri, subsequently sold his house property to one Ragate family of Tergaon and came and settled at Haliyal. As per the will name of the respective persons are entered and plaintiff and defendant No.l jointly acquired the ownership possession and title over the suit property after the death of their father Sri. Shankar Ramakrishna Balekundri in the year 1977. Therefore the plaintiff and defendant Nol have only share cach in the suit property and defendant No.2 has no any right in the suit property and Manohar Ramakrishna Balekundri and his wife and defendant No.2 have illegally created some documents with the help of panchayath authority in respect of the suit property which is not binding on the plaintiff It is also stated that defendants without cont consent of the plaintiff have published a false public notice in Vijaya Sandesh on 1.10.2003. Therefore, the plaintiff has constrained to file this suit for declaration and also partition based on the cause of action arose for publication by the defendant Nos: 1 and 2 and court below held that sand publication is made by the plaintiff and defendant No. 1 only and therefore they have no any cause of action against their own act. It is pertinent to note that the 'will' was executed by said Yellawwa in favour of her three sons said will is not disclosing as to which property is allotted to whom out of three houses - 10 - RSA No.6042 of 2010 belonging to Yellawwa. Therefore on 4.4.1965 a partition has been taken place in between father of the defendant No.1 Shankar and his two brothers Vishwanath Ramakrishna Balckundri, Manohar Ramakrishna Balckundri and father of the defendant No.2 and as per the said partition house property bearing No.28 has been allotted to Vishwanath Ramakrishna Balckundri. house property bearing No 94 having its curher No. 156 of Thatchaih which is suit property is allotted to the father of the plaintiff and defendant No.1 te Shankar Ramakrishna Balckundri, by leaving a front portion of one room of the suit house and suit house property bearing. No.84 which was having carlier No. 147 of Tarchalli village and front portion of the suit property bearing No.94 has been allotted to Manohar Ramakrishna 10. father of the defendant No.2 and after the death of father of the defendant No.2 Manoluar name of his wife is entered in the records and during her life time she has transferred the said property in the name of her only son i.e. defendant No.2 and since then the defendant No.2 has became the absolute owner of the front portion of one room in the suit property bearing property No.94. Thus the appellant have given in possession of their property in view of the said partition and therefore defendant No.2 is also having a share in the suit property which was allotted in the said partition. Since the said partition deed has been admitted in the evidence by collecting stamp duty by the court and also same has been proved by the defendant No.2 by examining one of the important witness as DW 2 who has spoken about the said partition and in view of this partition it is found that the plaintiff and defendant No.l have got share in the suit property bearing property No.94 having equal half share - 11 - RSA No.6042 of 2010 leaving front portion of one room in the suit house which was allotted to the father of the defendant No 2 Sri. Manohar in the partition 1965 and therm court below ought to have decreed the suit of the plamtiff by giving καρμική share to the plaintiff as well as defendant No.1 in the entire house property No.94 excluding the front portion of one room of the suit house which is allotted to the father of defendant No.2 in the sand partition and he hus excrcised his ownership right over the suit property and this fact is also made clear at page No.15 of the judgement of the trial court wherein P.W.I in an unequivocal terms admitted that in the front room of the sand house there is one shop and said shop has been leased out by the defendant No.2 to one Gopi. But he has deposed that he did not know as to whether the said portion of the house is standing in the name of the defendant No.2 since 1993 and this portion of evidence is also reiterated in the judgement at page No.15 and this admission will clearly goes to show that front portion of suit house wherein there is a shop is in possession and enjoyment of defendant No.2 through his tenant and his name is also entered as per the partition deed, House property No. 147 was allotted along with front portion of this suit property to the father of the defendant No.2 Manohar and after his death same was standing in in the name of his wife Pushpa who has transferred the same in the name of Defendant No.2. Therefore looking to this document, il is very clear that the front portion of the suit property which is one room where the shop is running by one Gopi is allotted to the father of delendas No 2 and after his death the defendant No.2 is im possession of the sa therefore the plaintiff and defendant nol are not only exclusive owners of - 12 - RSA No.6042 of 2010 the sand property and therefore court below has rightly answered SUC No.1 in the negative. Since the name of the defendant No.2 hus boen got ontcrol in the panchayath rooord based on the partition being the owner, the coun below has rightly answered issue No.2 in the negative and when the plaintiff hus failed to prove the will and defendant No 2 has succeeded in proving the partition dood as per partition his father Manohar was allotted front portion of one room in that case the plaintiff cannot claim half share in the entire sul property on the contrary the plaintiff and defendant Nol are entitled for equal share in the remaining portion of the suit property icaving or excludm front room portion of the suit house and therefore court below ought to have decreed the suit awarding equal share to the plaintiff and defendant Nol Icaving front room which was allotted to the share of the father of defendant No.2 instead of decreeing the suit in entirety awarding 1/3td share to the defendant No.2 also and therefore in the light of the documentary as well as oral evidence and as per the admission given by herself it is just and necessary to modify the decree passed by the court below as observed by me above. Hence judgement and decree passed by the court below is perverse and unjust, untenable, and liable to modified and hence I answer point No. I accordingly.” 9. Having observed this, The first appellate Court has passed the following Order: “ORDER Appeal is allowed and judgment and decree passed by the trial court is modified as under: - 13 - RSA No.6042 of 2010 The suit of the plaintiff is decreed in part. The plaintiff and defendant No.1 are entitled for equal share in the suit house leaving excluding front portion of one room which is standing in the name of the defendant No.2 where the shop is situated. The parties are directed to bear their own costs. Draw a modified decree accordingly. Office is directed to send back the LCR along with the copy of this judgment immediately.” 10. The first appellate Court has properly appreciated the evidence on record in accordance with law and facts. I do not find any ground to formulate substantial question of law as sought for by the appellant. Hence, I proceed to pass the following: O R D E R Being devoid of merits, appeal stands dismissed at the stage of admission itself. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU