- 1 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.4009 OF 2012 (PAR/POS) BETWEEN: 1. HAMPAWWA W/O. ERAPPA MELLIKERI, AGE ABOUT 66 YEARS, OCC: AGRICULTURE, R/O: TANAKANKAL, TQ: KOPPAL. 2. DEVAMMA W/O. ADEPPA BEVOOR, AGE ABOUT 30 YEARS, OCC: HOUSEHOLD WORK, R/O: HUNASYAL, TQ: YELBURGA. … APPELLANTS (BY SRI. SURESH P. HUDEDAGADDI, ADVOCATE) AND: 1. IRAPPA VEERESHAPPA S/O. MUDKAPPA MELLIKERI, SINCE DECEASED BY HIS LR’S., 1A. ANASUYA W/O IRAPPA @ VEERESHAPPA, MELLIKERI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: TANAKANKAL, TQ: AND DIST: KOPPAL. 1B. MANJUNATH S/O IRAPPA MELLIKERI, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: TANAKANKAL, TQ: AND DIST: KOPPAL. 1C. SIDDU S/O IRAPPA MELLIKERI, AGE: 22 YEARS, R/O: MELLIKERI, TQ: AND DIST: KOPPAL. 1D. SUNANDA D/O IRAPPA MELLIKERI, AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: MELLIKERI, TQ: AND DIST: KOPPAL. 2. UDACHAPPA S/O. MUDKAPPA MELLIKERI, MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.08.14 12:07:14 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 AGE: 47 YEARS, OCC: AGRICULTURE, R/O: TANAKANKAL, TQ: KOPPAL. … RESPONDENTS (BY SRI. DEEPAK MAGANUR, ADVOCATE FOR SRI. CHANDRASHEKAR P. PATIL, ADVOCATE FOR R1(A), (B), (D) AND R2; R1(C)-SERVED) THIS RFA IS FILED UNDER ORDER 41 RULE OF 1 R/W SECTION 96 OF CPC., PRAYING TO ALLOW THE APPEAL BY ALLOTTING ½ SHARE TO THE APPELLANT BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.07.2006 PASSED IN O.S. NO.76/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) KOPPAL. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) The appellants/plaintiffs have filed this appeal challenging the judgment and decree dated 18.07.2006, passed by the Civil Judge (Sr. Dn.) at Koppal, in O.S.No.76/2001, thereby, the suit filed for partition and separate possession is dismissed. 2. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 3. The plaintiffs have filed a suit for partition and separate possession by claiming that the original - 3 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 propositus is one Irappa, who has two children namely Mudakappa and Irappa. The plaintiff No.1 is wife of Irappa and plaintiff No.2 is daughter of Irappa, who died on 12.07.2000. Defendants No.1 and 2 are sons of Mudakappa who died in the year 1995. The plaintiffs have stated genealogy in the plaint as mentioned hereunder: IRAPPA (DEAD) (Originator) Mudkappa (Dead) Irappa (Dead) Wife Hampawwa Ist Plaintiff Irappa Udachappa @ Veereshappa Deft.No.2 Daughter Deft.No.1 Devamma IInd Plaintiff 4. The plaintiffs have contended that the suit schedule properties are ancestral and joint family properties. Therefore, have filed a suit for partition by claiming half share in the suit schedule properties. - 4 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 5. The defendants have filed written statement by denying the averments in the plaint that the suit schedule properties are not ancestral and joint family properties but they are self acquired properties of defendants No.1 and 2. Therefore, prays to dismiss the suit. 6. The trial Court has dismissed the suit by assigning the reasons that the plaintiffs have been litigating for 22 years and the cause of action arouse to file a suit in the year 2000. Therefore, the trial Court disbelieved the cause of action raised by the defendants. Further, the trial Court assigned reason that the plaintiffs have not produced any evidence to show that the suit schedule properties were acquired out of joint nucleus fund of joint family. Further, the record of right shows that the defendants No.1 and 2 are in possession over the property as their names reflected in the record of rights. Hence, on all these reasons dismissed the suit. - 5 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 7. Being aggrieved by the judgment and decree in dismissing the suit, the plaintiffs have filed appeal by raising various grounds and the learned counsel for the plaintiffs/appellants submitted that all the suit schedule properties are ancestral and also some of them are joint family properties. Just because, the defendants names are appearing in the record of rights, that does not mean that the plaintiffs do not have share and also does not mean that the other properties are not ancestral and joint family properties. Therefore, the suit schedule properties are inherited through the original propositus-Irappa. Hence, in absence of any evidence on part of the defendants that these properties were self acquired by the defendants. Hence, it is presumed and held that there is a joint family property and therefore, the plaintiffs are entitled half share in all the properties. 8. On the other hand, learned counsel for respondents/defendants submitted that by justifying the judgment and decree of trial Court that there is no - 6 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 evidence produced by the plaintiffs that these properties are ancestral and joint family properties. The suit schedule properties were purchased by Mudakappa during lifetime. Therefore, the names of Mudakappa and then his legal heirs were entered in the record of rights. This is correctly appreciated by the trial Court. Therefore, by justifying the judgment and decree passed by trial Court, prays to dismiss the appeal. 9. Upon hearing arguments and perusing the evidence on record of both oral and documentary, the following points arise for consideration: i. Whether, under the facts and circumstances involved in the case, plaintiffs prove that all the suit schedule properties are ancestral and joint family properties amenable for partition, thus entitled ½ share in all the suit schedule properties? ii. Whether, under the facts and circumstances involved in the case, defendants prove that the suit schedule properties are self acquired properties of Mudakappa and later on inherited by defendants No.1 and 2 exclusively? - 7 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 iii. Whether, the judgment and decree passed by the Trial Court requires any interference of this Court? 10. It is the case of plaintiffs as made out in the plaint that all the suit schedule properties are ancestral and joint family properties inherited through original propositus by name Irappa. But it is the case of defendants that the suit schedule properties were acquired by Mudakappa and later on, inherited to defendants. Thus, it is contention of the defendants that the suit schedule properties are not ancestral and joint family properties, when this being the crux of the matter, the genealogy as stated by the plaintiffs is admitted by the defendants. The only question is whether all the suit schedule properties are ancestral and joint family properties. Upon considering these issues involved in the appeal, the oral and documentary evidence is considered. Exs.P1 to P4 and Exs.P7 to P18 are the records of rights. Exs.P5 and Ex.P6 are Khata extracts. - 8 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 11. It is the case of plaintiffs that, plaintiff No.1 has filed a suit in O.S.No.219/1989 for maintenance against her husband-Irappa for maintenance and the said suit was dismissed. Against this, the plaintiff No.1 has filed regular appeal, which is allowed and against which, the said Irappa filed RSA No.384/1995 before this Court and this Court has dismissed regular second appeal of the year 1995 as per Exs.P20 and P21. Just because, the plaintiff No.1 has filed a suit for maintenance, at the most, it is proved that the Irappa, who is the husband of plaintiff No.1 has deserted his wife and the wife filed a suit for maintenance that does not mean that plaintiff No.1 is not entitled for share in property. Since, the marital status is continued unless decree for divorce is granted. But there is no evidence that the divorce is granted and disentitling plaintiff No.1 to claim share in the property. 12. The plaintiffs have initiated proceedings before the revenue authorities questioning the entries of defendants name made in the RTC extract and other - 9 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 revenue records. The Deputy Commissioner (DC) has passed an order as per Ex.P-19 that to approach the Civil Court for addressing the grievances; therefore, the plaintiffs have filed suit for partition. When this being the fact, the Trial Court has committed an error by observing that there is no cause of action to prefer the suit. 13. Just because of litigation one way or the other, whether by filing cases before the Court or not, such long continuation of allegations cannot take away raising cause of action to file suit. Therefore, the Trial Court is not correct in observing that there is no cause of action to file suit. There is cause of action that is still alive till the date of filing of suit. Hence, the suit filed by raising cause of action. 14. Another observation and finding made by the Trial Court is that the plaintiffs have not proved that out of joint nucleus fund, the suit schedule properties were purchased. When it is the contention of the plaintiffs that - 10 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 all the properties are ancestral and joint family properties, it is presumed that the properties are ancestral and joint family properties for which there is no need to lead evidence by the plaintiffs, but when the defendants raise a plea that there was no nucleus fund or there was any prior partition, then it is burden on the defendants to prove that aspect. Just because long continuation of the entries of the name of defendants in the revenue entries that does not mean that the plaintiffs lose rights to file a suit for partition. Where in the absence of rebuttal evidence, the suit properties are continued to be ancestral and joint family properties. In this regard, the burden is on the defendants to prove that the properties are not ancestral and joint family properties and have not been purchased out of joint nucleus fund. 15. In this regard, the evidence adduced by the defendants is to be considered. It is the case of the defendants that one property at item No.1 of schedule-A, which land bearing R.S.No.17/E 1, is self acquired - 11 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 property of the defendants. To prove this aspect, the defendants have led documentary evidence Ex.D-1, which is the judgment and decree in O.S.No.74/2002 declaring that the defendants, who were plaintiffs in the said suit, are the owners of the land bearing Sy.No.17/E1, which is subject matter in O.S.No.74/2002. Therefore, by this, Ex.D-1, the defendants have proved that the property at item No.1 of schedule-A is the self acquired property of the defendants. Therefore, the plaintiffs are not entitled partition in this property item No.1 of schedule-A. 16. Further, it is contention of the defendants that item Nos.3 and 4 of schedule-A properties, which are Sy.Nos.41/e, 41/Ee (as per plaint schedule property, but in the decree they are wrongly shown as Sy.No.17/E and 17/Ee1) have been purchased by the defendants. To prove this aspect, the defendants have produced original copy of sale deed dated 12.06.1984 having purchased the property bearing R.S.No.41/e, 41/Ee. - 12 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 17. These properties, as per sale deed prove that the defendants have purchased the properties. If it is the contention of the plaintiffs that these two properties were purchased out of joint nucleus fund, then the onus shifts on the plaintiffs to prove that these two properties were purchased out of joint nucleus fund, but the plaintiffs have not proved this fact that these two properties were purchased out of joint nucleus fund. When the defendants produced documentary evidence that they have purchased these two properties through a registered sale deed, then the defendants are said to have discharged their burden; then the onus shifts on the plaintiffs to prove that these two properties were purchased by the defendants in the name of defendants but out of joint nucleus fund. In this regard, the plaintiffs have not discharged their burden by placing cogent evidence; therefore by virtue of Ex.D-3/registered sale deed, the defendants have purchased item Nos.3 and 4 of schedule-A property. - 13 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 Accordingly, they are proved to be self acquired properties. 18. The defendants have not placed any documentary evidence to prove that item No.2 of schedule-A, which land bearing Sy.No.17/E2 and the house properties of schedule-B are their self acquired properties. When the plaintiffs have contended by pleading that the properties are ancestral and joint family properties, then the onus shifts on the defendants to prove that the properties are their self acquired properties; except that, the defendants have not produced any evidence to prove that item No.2 of schedule-A land bearing Sy.No.17/E2 and item Nos.1 and 2 of schedule-B properties are their self acquired properties. Therefore, the plaintiffs-appellants are entitled decree in respect of item No.2 of schedule-A property which land bearing Sy.No.17/E2 and item Nos.1 and 2 of schedule-B properties. Therefore, I answer point Nos.(i) and (iii) in the partly affirmative and point No.(ii) in the negative. - 14 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 Therefore, the judgment and decree passed by the Trial Court is required to be modified. 19. In the result, I proceed to pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and decree dated 18.07.2006, passed in O.S.No.76/2001 on the file of Civil Judge (Sr. Dn.) at Koppal is hereby set aside. iii. The suit of the plaintiffs is decreed in part. iv. The plaintiffs are entitled to half share and entitled to separate possession by metes and bounds in item No.2 of schedule-A property, which is land bearing Sy.No.17/E2 and item Nos.1 and 2 of schedule-B properties by metes and bounds. v. The suit of the plaintiffs is dismissed in respect of other properties. vi. Registry is directed to send back the Trial Court Records along with a copy of this judgment. - 15 - HC-KAR NC: 2025:KHC-D:9032 RFA No. 4009 of 2012 vii. Draw decree accordingly. viii. No order as to costs. In view of disposal of the appeal, pending IAs’, if any, shall stand disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM-para 1 to 11 SRA-para 12 to end. CT:BCK LIST NO.: 1 SL NO.: 35