- 1 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 3RD DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 100418 OF 2024 (DEC/INJ) BETWEEN: SHRI BHAU BABU KURUNDAWADE AGE: 72 YEARS, OCC. AGRICULTURE, R/O. SHIRAGUPPI, TQ. ATHANI-591304, DISTRICT: BELAGAVI. …APPELLANT (BY SRI. B.S. KAMATE, ADVOCATE) AND: 1. SHRI PRAKASH BABU PAWAR AGE: 41 YEARS, OCC. AGRICULTURE, R/O. SHIRAGUPPI, TQ. ATHANI-591304, DISTRICT: BELAGAVI. 2. SMT. KAVITA W/O. NARAYAN MANJURE, AGE: 51 YEARS, OCC. HOUSEHOLD WORK, R/O. BUBANAL TQ. SHIROL-416103, DISTRICT: KOLHAPUR, STATE: MAHARASHTRA. 3. SMT. SAVITRI W/O. MURALI MAJARE, AGE: 45 YEARS, OCC. HOUSEHOLD WORK, R/O. BUBANAL TQ. SHIROL-416103, DISTRICT: KOLHAPUR, STATE: MAHARASHTRA. SHRI BABU YALLAPA PAWAR SINCE DECEASED BY HIS LRS. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.05 14:27:41 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 4. SHRI ASHOK ANAND KANERI AGE: 71 YEARS, OCC. AGRICULTURE, R/O. SHIRAGUPPI, TQ. ATHANI-591304, DISTRICT: BELAGAVI. 5. SHRI AMUL ASHOK KANERI AGE: 38 YEARS, OCC. AGRICULTURE, R/O. SHIRAGUPPI, TQ. ATHANI-591304, DISTRICT: BELAGAVI. 6. SHRI RANJIT ASHOK KANERI AGE: 38 YEARS, OCC. AGRICULTURE, R/O. SHIRAGUPPI, TQ. ATHANI-591304, DISTRICT: BELAGAVI. …RESPONDENTS (BY SRI. PRASAD R. SIDHANTI, ADVOCATE FOR C/R1 TO C/R3) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.03.2024 PASSED BY THE VII ADDITIONAL DISTRICT AND SESSION JUDGE, BELAGAVI, SITTING AT CHIKKODI IN R.A.NO.79/2020 AND THE JUDGMENT AND DECREE DATED 26.02.2020 PASSED BY THE PRL. SENIOR CIVIL JUDGE ATHANI IN O.S.NO.59/2012 AND FURTHER THE SUIT O.S.NO.59/2012 MAY KINDLY BE DECREED AS PRAYED FOR BY ALLOWING THIS RSA IN THE INTEREST OF JUSTICE. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellant and the respondent. 2. The appellant is the plaintiff in O.S.No.59/2012, who was non-suited by the Trial Court as well as the First Appellate Court in R.A.No.79/2020. 3. The appellant/plaintiff is the purchaser of the suit schedule property under a registered sale deed dated 23.04.1998 from the defendant No.4 for consideration of ₹1,30,000/-. The defendant No.4 was member of the joint family and in the suit filed among the members of the joint family for partition i.e., in O.S.No.75/1998, the defendant No.4 was allotted certain share. The Courts below held that the declaration that the plaintiff is the owner in possession in respect of the suit schedule property measuring 4 acres 20 guntas in RS No.203/2 and 203/3 cannot be granted since the share of the defendant No.4 is governed by the - 4 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 decree passed in O.S.No.75/1998 and as such, issue No.1 is hit by the principle of res-judicata. On that ground, the Trial Court as well as the First Appellate Court dismissed the suit of the plaintiff/appellant. 4. Being aggrieved, the plaintiff is before this Court. The learned counsel appearing for the appellant submits that when the sale deed is held to be proved by both the Courts below, the result and effect was to decree the suit to the extent of the share of the defendant No.4, who was the vendor of the plaintiff. It is contended that both the Courts could not have dismissed the suit in entirety and they could have restricted to the share that may be allotted to the defendant No.4 in the inter se partition between him and his family members. 5. The learned counsel appearing for the respondent submits that the appellant/plaintiff is at liberty to approach the Court which passed the preliminary decree for partition in final decree proceedings and then seek - 5 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 appropriate remedy to demarcate his share in the share that may be allotted to his vendor i.e. defendant No.4. It is contended that the remedy of the appellant was to file a suit for partition and if there is already a suit pending, to implead himself in the same and seek equitable relief for allotment of property that may fall to the share of defendant No.4. 6. It is worth to note that the Trial Court as well as the First Appellate Court have upheld the binding nature of earlier partition suit. The relevant paragraph, as stated by the First Appellate Court, reads as follows: “It is not in dispute that the present plaintiff was one of the defendants in the said O.S. No.75/1998 as he admitted in cross-- examination and the subject matter of both the suits is same i.e. land bearing R.S. No.203/3A. Since the material issue in regard to the suit property that it is the joint family property involving the rights and share of the present defendants No.1 to 3 and wife of the defendant No.4 has been determined in the said suit, said - 6 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 issue cannot be reopened in the present suit. Therefore, the claim/suit of the plaintiff is hit by the principle of res-judicata and doctrine of lis-- pendens.” 7. Thus, the defendant No.4 cannot have any grievance in respect of the said sale deed. If the defendant No.4 is a party in the suit for partition i.e., O.S.No.75/1998, then the appellant is at liberty to approach the Court, which is hearing O.S.No.75/1998, either in the suit or in the final decree proceedings and seek appropriate remedy. It is trite law that if the defendant No.4 has sold excess land than that may be allotted to his share, then the appellant/plaintiff would not be entitled to that extent. The appellant can certainly claim his share to the extent of the sale deed that was executed in his favour in the property that may be allotted to defendant No.4. The appellant may also seek an equitable relief from the court, which is effecting the partition. - 7 - HC-KAR NC: 2025:KHC-D:14908 RSA No. 100418 of 2024 8. Learned counsel appearing for the appellant submits that the First Appellate Court and the Trial Court could have exercised their powers under Order VII Rule 7 of CPC in moulding the relief. It seems no such prayer was made before the Courts below and therefore, the reliefs claimed by the plaintiff/appellant could not be granted and both the Courts below have rightly dismissed the suit. 9. With the above observation, the appeal does not require any meritorious hearing and as such, the same is dismissed observing that the appellant is at liberty to approach the Court, which is dealing with the final decree proceedings in O.S.No.75/1998 and seek equitable relief. 10. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN, CT:PA LIST NO.: 1 SL NO.: 27