- 1 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE 1ST DAY OF DECEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE R.DEVDAS AND THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI REGULAR FIRST APPEAL NO. 100281 OF 2019 (PAR/POS) C/W REGULAR FIRST APPEAL NO. 100311 OF 2019 IN RFA No. 100281/2019: BETWEEN: 1. SHRI. JYOTIBA S/O. HANAMANTRAO GHORPADE AGE: 54 YEARS, OCC: AGRICULTURE, R/O. MALLAMMA NAGAR, WARD NO.V, MUDHOL, DIST: BAGALKOT. 2. SHRI. GOPAL S/O. HANAMANTRAO GHORPADE AGE: 43 YEARS, OCC: AGRICULTURE, R/O. WARD NO.5, MALLAMMA NAGAR, MUDHOL-587313, DIST: BAGALKOT. 3. SMT. SUMITRA W/O. PANDURANG BHOSALE AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O. PLOT NO.250, NEAR DNYANESHWAR GARDEN, SECTOR NO.28, NIGDI PRADHIKARAN, PUNE-411044 (MAHARASHTRA). 4. SMT. SUBHADRA D/O. HANAMANTRAO GHORPADE, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, R/O:WARD NO.5, MALLAMMA NAGAR, MUDHOL-587313, DIST: BAGALKOT. 5. SMT. SHOBHA W/O. SHANKAR SHINDHE AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: WARD NO.2, BRAHMAN GALLI, MUDHOL-587313, DIST: BAGALKOT. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.12.03 16:35:40 +0530 - 2 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 6. SMT. SAKKUDAI W/O. MOHAN KOKATI AGE: 48 YEARS, OCC: HOUSEHLD WORK, R/O: GADDANAKERI CROSS, NEAR INDIAN PETROL PUMP, NOW AT ANADINNI CROSS, ANADINNI YADAHALLI, TAL: MUDHOL-587103, DIST: BAGALKOT. …APPELLANTS (BY SRI. G.B.NAIK AND SMT. P.G.NAIK, ADVOCATES) AND: 1. SMT. TANABAI W/O. ANANTRAO BAGAL AGE: 59 YEARS, OCC: HOUSEHOLD WORK, R/O. NAVNAGAR, BAILHONGAL, DIST: BELAGAVI. 2. SMT. SARASWATIBAI W/O. SADASHIV MUDHOLE AGE: 57 YEARS, OCC: HOSEHOLD WORK, R/O: MAIGUR ROAD, JAMAKHANDI, DIST: BAGALKOT. 3. SMT. SUVARNA W/O. HANAMANT MAGI AGE: 45 YEARS, OCC: HOSUEHOLD WORK, R/O: KORTI REHABILITATION CENTRE, TAL: BILAGI, DIST: BAGALKOT. 4. SHRI. PANCHAKSHARAYYA S/O. SHIDRAMAYYA HIREMATH, AGE: 39 YEARS, OCC: AGRICULTURE, R/O. AMALAZERI, TAL: BILAGI, DIST: BAGALKOT. …RESPONDENTS (BY SRI. S.S.JOSHI, ADVOCATE FOR R1 AND R2; SRI. VISHWANATH HEGDE, ADVOCATE FOR R3 AND R4) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.03.2019 PASSED IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BILAGI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PARTITION AND SEPARATE POSSESSION. - 3 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 IN RFA NO. 100311/2019: BETWEEN: 1. SUVARNA W/O. HANAMANT MAGI AGED 46 YEARS, OCC: HOUSEHOLD WORK, R/O. KORTI REHABILITATION CENTRE, TQ: BILAGI, DIST: BAGALKOT-587116. 2. PANCHAKSHARAYYA S/O. SHIDRAMAYYA HIREMATH AGED 40 YEARS, OCC: AGRICULTURE, R/O. AMALZERI, TQ: BILAGI, DIST: BAGALKOT-587116. ...APPELLANTS (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: 1. TANABAI W/O. ANANTRAO BAGAL AGED 60 YEARS, OCC: HOUSEHOLD WORK, R/O. NAVANAGAR, TAL: BAILHONGAL, DIST: BELAGAVI-591102. 2. SARASWATIBAI W/O. SADASHIV MUDHOLE AGED 58 YEARS, OCC: HOUSEHOLD WORK, R/O. MAIGUR ROAD, JAMKHANDI, DIST: BAGALKOT-587301. 3. JYOTIBA S/O. HANAMANTRAO GHORPADE AGE: 54 YEARS, OCC: AGRICULTURE, R/O: MALLAMMANAGAR, WARD NO.V MUDHOL, DIST: BAGALKOT-587313. 4. GOPAL S/O. HANAMANTRAO GHORPADE AGED 46 YEARS, OCC: AGRICULTURE, R/O: MALLAMMANAGAR, WARD NO.V, MUDHOL, MUDHOL, DIST: BAGALKOT-587313. 5. SUMITRA W/O. PANDURANG BHOSALE AGED 56 YEARS, OCC: HOUSEHOLD WORK, - 4 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 R/O. PRADIKAL NAGAR, AKRODI, PUNE, MAHARASHTRA STATE-411035. 6. SUBHADRA D/O. HANAMANTRAO GHORPADE AGED: 52 YEARS, OCC: HOUSEHOLD WORK, R/O: MALLAMMANAGAR, WARD NO.V, MUDHOL, DIST: BAGALKOTE-587313. 7. SHOBHA W/O. SHANKAR SHINDHE AGED: 50 YEARS, OCC: HOUSEHOLD WORK, R/O: MUDDESH PRABHU SWEET MART, AT: MUDHOL, DIST: BAGALKOTE-587313. 8. SAKKUBAI W/O. MOHAN KOKATI AGED: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: GADDANAKERI CROSS, NEAR INDIAN PETROL PUMP, BAGALKOT, DIST: BAGALKOTE-587101. ...RESPONDENTS (BY SRI. S.S.JOSHI, ADVOCATE FOR R1 AND R2; SRI. G.B.NAIK AND SMT. P.G.NAIK, ADVOCATES FOR R3 TO R7; NOTICE TO R8 IS SERVED BUT UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 AND 2 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED 29.03.2019 PASSED IN O.S.NO.15/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BILAGI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION AND PARTITION AND SEPARATE POSSESSION. THESE REGULAR FIRST APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.DEVDAS AND HON'BLE MR. JUSTICE B. MURALIDHARA PAI - 5 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE R.DEVDAS) These two appeals arise out of the judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the learned Senior Civil Judge and JMFC, Bilagi. Therefore, the appeals were clubbed, heard together and are being disposed of by this common order. 2. The suit is filed by two of the daughters of late Sri.Hanmantrao Ghorpade seeking partition and separate possession of the suit schedule properties; to enquire for future profits from the date of the suit till delivery of possession under Order 21 Rule 12(1)(c) of the CPC. The trial court held that the burden is on the plaintiffs to prove that the suit schedule properties are the joint family properties and that the plaintiffs are having a share in the suit schedule properties. It is noticed that the defendants have only filed written statement, but have failed to enter into the witness box to disprove the case of the plaintiffs. Defendant Nos.8 and 9 are the subsequent purchasers. - 6 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 The trial court therefore held that even though the plaintiffs have not produced any documentary evidence to show that the suit schedule properties are joint family properties, nevertheless, defendant Nos.1 and 2 in their written statement have pleaded that there was a prior partition in the year 1984 and they have succeeded to the suit schedule-A properties and that item No.1 in schedule-B was purchased by their father in the year 1999 and therefore, the same is self-acquired property of their father, and during his lifetime, on submergence of the said property, three sites were allotted to their father and defendant Nos.1 and 2, i.e., item Nos.2, 3 and 4 in schedule-B, which were sold in favour of defendant Nos.8 and 9 in the years 2011 and 2012, the same is not available for partition. Nevertheless, since defendant Nos.1 to 7 did not step into the witness box to substantiate their contention, the trial court has proceeded to decree the suit filed by the plaintiffs. - 7 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 3. Learned counsels for the appellants would therefore submit that an opportunity should be given to defendant Nos.1 to 7 to substantiate their contentions raised in the written statement by allowing them to enter the witness box and make themselves available for cross- examination at the hands of the plaintiffs. 4. Having heard the learned counsels for the appellants, learned counsel for the respondents/plaintiffs and on perusing the appeal papers, this court is of the considered opinion that defendant Nos.1 to 7 should be given an opportunity to enter the witness box and after their examination, they should be available for cross- examination at the hands of the plaintiffs. Accordingly, this court proceeds to pass the following: ORDER i) The appeals are allowed in part while imposing cost of Rs.5,000/- on the appellants in RFA No.100281/2019, which shall be paid to the plaintiffs on the first date of hearing on remand. - 8 - HC-KAR NC: 2025:KHC-D:16867-DB RFA No. 100281 of 2019 C/W RFA No. 100311 of 2019 ii) The impugned judgment and decree dated 29.03.2019 passed in O.S.No.15/2013 on the file of the Senior Civil Judge and JMFC, Bilagi is hereby quashed and set aside only to enable defendant Nos.1 to 7 to enter the witness box, examine themselves and thereafter be available for cross-examination at the hands of the plaintiffs. Needless to say that, if the plaintiffs also want to lead further evidence, they shall be permitted to do so. iii) Parties are directed to appear before the learned Senior Civil Judge and JMFC, Bilagi on 05.01.2026 without waiting for further notice. Ordered accordingly. Sd/- (R.DEVDAS) JUDGE Sd/- (B. MURALIDHARA PAI) JUDGE MBS Ct:vh List No.: 1 Sl No.: 26