- 1 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100839 OF 2014 (-) BETWEEN: KALLAPPA MALLAPPA KHINNAVAR, AGE: 62 YEARS, OCC: NIL, R/O. MAHAVEER NAGAR, CHIKODI DIST: BELAGAVI-591201. A1a. SMT. MANDA W/O. KALLAPPA KHINNAVAR, AGE: 59 YEARS, OCC: HOUSEHOLD WORK, RESIDENT OF #4076/9, ESHWAR NILAYA, 7TH CROSS, MCC BLOCK B, DAVANAGERE – 577004. A1b. SMT. POONAM D/O. KALLAPPA KHINNAVAR, AGE: 39 YEARS, OCC: DOCTOR, RESIDENT OF #4076/9, ESHWAR NILAYA, 7TH CROSS, MCC BLOCK B, DAVANAGER – 577004. A1c. SMT. AMRUTA W/O. KALLAPPA KHINNAVAR, AGE: 59 YEARS, OCC: HOUSE HOLD WORK, RESIDENT OF #4076/9, ESHWAR NILAYA, 7TH CORSS, MCC BLOCK B, DAVANAGERE – 577004. …APPELLANTS (BY SRI. A P MURARI AND SRI.L M KURAHATTY AND SMT. DEEPA UDIYAR, ADVOCATES) MANJANNA E Digitally signed by MANJANNA E Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.01 11:43:09 +0530 - 2 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 AND: 1. SHRISHAIL MALLAPPA KHINNAVAR, AGE: 55 YEARS, OCC: AGRICULTURE and BUSINESS, R/O.HUDDAR GALLI, CHIKODI, DIST: BELAGAVI-591201. (SINCE DEAD BY HIS LRS) 1a. SMT. KALYANI W/O. SHRISHAIL KHINNAVAR, AGE: 55 YEARS, OCC: HOUSEHOLD, R/O.NO.662, HUDDAR GALLI, CHIKODI – 591201 DISTRICT: BELAGAVI. 1b. SHRI. SHREYAS S/O. SHRISHAIL KHINNAVAR, AGE: 28 YEARS, OCC: SERVICE, R/O. NO.662, HUDDAR GALLI, CHIKODI – 591201, DISTRICT: BELAGAVI. 1c. SMT. PRIYANKA D/O. SHRISHAIL KHINNAVAR, AGE: 25 YEARS, OCC: HOUSEHOLD, R/O. NO.662, HUDDAR GALLI, CHIKODI- 591201, DISTRICT: BELAGAVI 1d. SMT. SWETA D/O. SHRISHAIL KHINNAVAR, AGE: 24 YEAR, OCC: HOUSEHOLD, R/O.NO.662, HUDDAR GALLI, CHIKODI- 591201, DISTRICT: BELAGAVI 2. SADASHIV GHATAGAYYA HIREMATH, AGE: 52 YEARS, OCC: ADVOCATE and AGRICULTURE, R/O.HUDDAR GALLI, TMC NO.663, CHIKODI, DIST: BELAGAVI -591201 3. MARUTI S/O. VITHAL MUSALE, AGE: 64 YEARS, OCC: PHYSICIAN, - 3 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 R/O: OLD COURT LANE, NEAR TMC OFFICE, CHIKODI, DIST: BELAGAVI. 4. SAU. REKHA W/O. MARUTI MUSALE, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: NEAR TMC OFFICE, CHIKODI, DIST: BELAGAVI. 5. DR. JAYALAXMI D/O. MARUTI MUSALE, AGE: 28 YEARS, OCC: MEDICAL PRACTITIONER, R/O: NEAR TMC OFFICE, CHIKODI, DIST: BELAGAVI. 6. DR. ABHIJIT S/O MARUTI MUSALE, AGE: 26 YEARS, OCC: STUDENT, R/O: NEAR TMC OFFICE, CHIKODI, DIST: BELAGAVI. …RESPONDENTS (R1- DECEASED; SRI. D.H.PASTAY, ADVOCATE FOR R2 TO R6; R1 (A)- SERVED UNREPRESENTED; R1(B) & R1(C) AND R1 (D) – HELD SUUFFICIENT) ------ THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE COMMON JUDGMENT AND DECREE DATED 26.09.2014 IN R.A.NO.19/2012 AND 33/2012 PASSED BY THE LEARNED VII ADDITIONAL DISTRICT JUDGE, BELGAUM, AT CHIKODI, PRODUCED AT ANNEXURE-A&A1 AND ALLOW FDP NO.7/2010 AND R.A.NO.19/2012 FULLY AND THIS SECOND APPEAL WITH COSTS THROUGHOUT, BY ALLOTTING ½ (HALF) SHARE EQUALLY TO APPELLANT-DEFENDANT NO.1 KALLLAPPA AND TO RESPONDENT NO.1 DEFENDANT NO.3 SHRISHAIL IN PROPERTY BEARING TMC NO.483/A COMPRISING CTS NOS.1903, 1904 AND 1905 AND IN TMC NO.854/673 OF CHIKODI, SUBJECT TO ADJUSTMENT OF EQUITIES, VIZ., NORTHERN PORTION OF TMC NO.483/A BE ALLOTTED TO THE SHARE OF THE APPELLANT-DEFENDANT NO.1 KALLAPPA, IN A PORTION OF WHICH THE PURCHASER RESPONDENT NO.2 DEFENDANT NO.4 S.G. HIREMATH, IS ALREADY IN POSSESSION. - 4 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is preferred by the petitioner, challenging the judgment and decree dated 26.09.2014 in RA No.19/2012 on the file of VII Additional District and Sessions Judge, Belagavi sitting at Chikodi (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and setting aside the judgment and decree dated 12.12.2011 in FDP No.7/2010 on the file Senior Civil Judge, Chikodi (for short, hereinafter referred to as ‘FDP Court’). 2. For the sake of convenience, the parties are referred to as per their ranking before the FDP Court. 3. It is the case of the petitioner in FDP No.7/2010 that one Smt. Ratnakka had two children namely Kallappa and Shrishail. The said Ratnakka had filed OS No.27/2001 seeking relief of partition and separate possession in respect of the schedule property. In the meanwhile the defendant No.3 in OS - 5 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 No.27/2001 (Shrishail Mallappa Khinnavar) has sold portion of the land in favour of the respective defendants in the suit. 4. The Trial Court after considering the material on record decreed the suit on 13.11.2009 holding that the plaintiff (Smt. Rantakka) and her children Kallappa Mallappa Khinnavar (defendant No.1) and Shrishail Mallappa Khinnavar (defendant No.3) are entitled for 1/3rd share each in the schedule properties and the defendant Nos.4, 5 and 11 to 13 are entitled for share of the defendant No.1, wherein, they have already purchased the joint share of defendant No.1 in the suit properties except TMC No.6054/328. The said judgment and decree dated 13.11.2009, has been confirmed by the First Appellate Court in RA No.116/2010 and same reached finality. Thereafter, the defendant No.1 (Kallappa Mallappa Khinnavar) filed FDP No.7/2010 under Section 54 of CPC. The original plaintiff - Smt. Ratnakka died on 04.01.2010. The Trial Court appointed a Court Commissioner to divide the property in terms of the judgment and decree in OS No.27/2011 and as such the Trial Court by judgment and decree dated 12.12.2011 decreed the petition in part holding that the defendant No.3 has developed the property and right of the defendant No.3 is - 6 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 subject to the decree that may be obtained by the legatee of Smt. Ratnakka in OS No.188/2012. Feeling aggrieved by the same, defendant No.1 and defendant No.3 (sons of Smt. Ratnakka) had preferred RA No.19/2012 and RA No.33/2012, wherein, the First Appellate Court, by judgment and decree dated 13.07.2012, remanded the matter to the Trial Court for fresh consideration. Feeling aggrieved by the same, the defendant No.3 has filed MSA No.651/2012 and MSA No.652/2012 before this Court, and this Court by judgment and decree dated 05.02.2014 allowed the appeals and set aside the judgment and decree dated 13.07.2012 in RA No.19/2012 and RA No.33/2012 wherein the First Appellate Court has remanded the matter to the Trial Court. After the conclusion of the proceedings before this Court in MSA No.651/2012 and MSA No.652/2012, the Appellate Court heard the parties and by common judgment and decree dated 26.09.2014 dismissed RA No.33/12 and partly allowed the appeal in RA No.19/2012. Feeling aggrieved by the same, the present appeal is preferred. 5. This Court by order dated 06.09.2017 formulated the following substantial question of law. - 7 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 “Whether the First Appellate Court is illegally justified in excluding an extent of 8 ft. 9 inches in CTS No.1904 as shown by letter IJEF, while allotting the shares to defendants No.1 and 3, pursuant to the preliminary decree passed in O.S.No.27/2001?” 6. Heard Sri. A.P. Murari, learned counsel appearing for the appellants and Sri. D.H. Pastay, learned counsel appearing for the respondents. 7. Sri. A.P. Murari, learned counsel appearing for the appellant submitted that both the Courts below have committed an error on erroneous assumption that the 1/3rd share of Ratnakka has been kept intact and subject to the approval of the Competent Court in respect of the Will said to have been executed by Smt. Ratnakka in favour of one Shreyas (son of Shrishail). He further contended that, the finding recorded by both the Courts below requires re-appreciation since, the defendant Nos.1 and 3 are entitled for ½ share in the suit schedule properties as the mother of defendant Nos.1 and 3 died and as such sought for interference of this Court. 8. Per contra, Sir.D.H. Pastay, learned counsel appearing for the respondents vehemently contended for disposal of the appeal. - 8 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 9. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that originally the property was divided amongst Smt. Ratnakka and her children (Kallappa Mallappa Khinnavar and Shrishail Mallappa Khinnavar) as per the judgment and decree dated 13.11.2009 in OS No.27/2001 and wherein, 1/3rd of the schedule properties were devolved accordingly. Thereafter, the said judgment and decree in OS No.27/2001 was confirmed in RA No.116/2010 on the file of II Additional District Judge, Belagavi. It is also not in dispute that Ratnakka - original plaintiff died on 04.01.2010 and therefore, the schedule property has to be divided equally between her children namely Kallappa Mallappa Khinnavar and Shrishail Mallappa Khinnavar. The said aspect of the matter was not considered by both the Courts below and therefore, I find force in the submission made by the learned counsel appearing for the appellant that the division of the property under Section 54 of CPC has to be made in accordance with the changed circumstances of fact as original plaintiff died and her entire 1/3rd share shall be devolved among her two children. Hence, the finding recorded by both the Courts below requires to be interfered with in view - 9 - NC: 2025:KHC-D:1665 RSA No. 100839 of 2014 of the changed circumstances and the said aspect has been ignored by both the Courts below. Accordingly, the devolution of the property is to be made in accordance with the legal entitlement of the defendant Nos.1 and 3 taking into consideration the death of their mother-Ratnakka. Therefore, the substantial question of law framed above is to be answered by remanding the matter to the FDP Court in FDP No.7/2010 to determine the shares of the parties as observed above. 10. In the result, l pass the following: ORDER 1. Appeal is allowed. 2. Judgment and decree dated 12.12.2011 in FDP No.7/2010 and the judgment and decree dated 13.07.2012 in RA No.33/2012 are hereby set aside and matter is remanded to the FDP Court in FDP No.7/2010 to allot the share of the parties in view of the observation made above. All contentions of the parties are kept open. Sd/- (E.S.INDIRESH) JUDGE SMM CT:ANB / List No.: 1 Sl No.: 44