- 1 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO. 100429 OF 2019 (PAR/POS) BETWEEN: 1. SMT. BORAVVA W/O. SHRISHAIL KULLOLLI, AGE: 59 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: MAREGUDDI, TQ: JAMAKHANDI, DIST: BAGALKOT-587313. 2. SMT. SANGAWWA W/O. BASAPPA JIRALI AGE: 57 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: NIDONI, TQ AND DIST: VIJAYAPURA-586101. 3. SMT. GOURAWWA W/O. HOLABASAPPA JAMBAGI AGE: 48 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: KULAHALLI, TQ: JAMAKHANDI, DIST: BAGALKOT-587313. 4. SMT. NEELAWWA @ NEELAGANGAWWA W/O. PARMANANDA ARALI, AGE: 45 YEARS, OCC: AGRICULTURE AND HOUSEHOLD WORK, R/O: MAREGUDDI, NOW AT: JAMBAGI B.K., TQ: JAMAKHANDI, DIST: BAGALKOT-587313. …APPELLANTS (BY SRI N. L. BATAKURKI, ADVOCATE) VISHAL NINGAPPA PATTIHAL Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA Date: 2025.04.04 12:30:39 +0530 - 2 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 AND: 1. SMT. PARVATEWWA S/O. BASAPPA RAMGOND, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, 2. MAHANTESH S/O. BASAPPA RAMGOND, AGE: 37 YEARS, OCC: AGRICULTURE, 3. GURUPADAPPA S/O. BASAPPA RAMGOND, AGE: 33 YEARS, OCC: AGRICULTURE, 4. SHAMBU S/O. BASAPPA RAMGOND, AGE: 30 YEARS, OCC: AGRICULTURE, ALL ARE R/O: MAREGUDDI, TQ: JAMAKHANDI, DIST: BAGALKOT-587313. 5. SMT. SAVITA D/O. BASAPPA RAMGOND, @ SMT. SAVITA W/O. ANAND KATTI, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: ALGUR, NOW R/O: NEAR DANAMMA DEVI TEMPLE, JAMKHANDI, TQ: JAMAKHANDI, DIST: BAGALKOT-587313. 6. SMT. KAVITA D/O. BASAPPA RAMGOND @ SMT. KAVITA W/O. BASAPPA MALLANNAVAR AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: HUNNUR, TQ: JAMAKHANDI, DIST: BAGALKOT-587313. …RESPONDENTS (BY SRI SOURABH A. SONDUR, ADVOCATE) THIS RFA IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED:11.07.2019 PASSED IN O.S.NO.120/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, JAMKHANDI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA - 3 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM) The captioned appeal is by the unsuccessful plaintiffs assailing the dismissal Decree passed by the Court below in O.S.No.120/2010, wherein the plaintiffs suit seeking partition and separate possession is dismissed on the ground that there is already partition in the family. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. Before we proceed to examine the rival contentions, we deem it appropriate to take cognizance of the family tree, which is as under: Channabasappa (dead) Shankrevva-(Pltf.No.5) Mallappa Basappa Bouravva Sangavva Guravva Neelavva (dead) (dead) (pltf.1) (Pltf.2) (Pltf.3) (Pltf.4) Smt.Parvatevva (wife, deft.1) Mahantesh Gurupadappa Shambhu Savita Kavita (deft.2) (Deft.3) (deft.4) (Deft.5) (deft.6) - 4 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 4. The facts leading to the case are that; The plaintiffs are the widow and daughters of one Channabasappa. The suit is filed against the widow and children of pre-deceased son-Basappa. Family tree also reveals that elder son-Mallappa died unmarried. The present suit is filed by plaintiffs alleging that suit schedule properties are joint family ancestral properties and therefore plaintiffs No.1 to 5 have got 1/6th share in the suit schedule properties. Plaintiffs specifically pleaded that there is no partition in the family and they are in joint possession and enjoyment of the suit schedule properties. The present suit is filed alleging that defendants No.1 to 5 have started to obstruct the management of the suit schedule properties and therefore plaintiffs requested to effect the partition and allot their legitimate share. Since defendants refused the same, the present suit is filed. 5. Defendants on receipt of summons tendered appearance and filed written statement and denied the entire averments made in the plaint. Defendants on the contrary, set up a plea of prior partition. Defendants specifically - 5 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 pleaded that plaintiffs have received golden ornaments and cash while the landed properties were allotted to the share of Basappa and Mallappa, therefore sought for dismissal of the suit. 6. Plaintiffs and defendants to substantiate their respective claims let in oral and documentary evidence. The trial Court answered issue No.1 in the ‘negative’ and issue No.2 was answered in the ‘affirmative’. While answering issue No.2, the trial Court has held that defendants have succeeded in establishing the factum of prior partition and therefore proceeded to dismiss the suit. The said decree is under challenge. 7. Heard the learned counsel appearing for plaintiffs and learned counsel appearing for defendants and on perusal of materials on record, the following point would arise for our consideration: Whether the finding recorded by the trial Court that defendants have proved that there is a partition in the family is perverse in - 6 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 absence of rebuttal evidence let in by defendants? 8. We have given our anxious consideration to the pleadings of both parties and oral and documentary evidence let in by both parties. We have also given our anxious consideration to the rebuttal evidence let in by defendants, more particularly, the Sale Deeds produced by the defendants, which are marked as Ex.D.1 and Ex.D.2. 9. Before we delve into the matter, we deem it fit to take cognizance of the stand taken by the defendants at paragraph Nos.4 and 5 of the written statement, which read as under : “4. The averments in para No.4 of the plaint are all false and concocted. It is not true that there was no partition in the joint family property. The joint family was partitioned already before the death of both Basappa and Mallappa. Gold ornaments and cash was given to the plaintiffs No.1 to 4 and the landed property was allotted to the share of deceased Basappa and Mallappa. Also - 7 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 it is false to allege that the suit lands are under the common and joint possession and enjoyment of both plaintiffs and defendants. In fact, all the suit properties are in possession and enjoyment of the defendants. 5. Plaint averments in para No.5 are false. It is not true that plaintiffs are cultivating the land and they are in actual and peaceful enjoyment of the properties. In fact, when Basappa and Mallappa died the plaintiffs have played fraud and have got entered their names in the record of rights along with the sons of the deceased Basappa i.e., the defendants. This, the plaintiffs have done in collusion with the revenue officials. The defendants being the naive villagers having no knowledge about the documents, have been duped by the plaintiffs with the help of their henchmen and in collusion with revenue officials. They are not entitled to any share in the suit properties as claimed.” 10. Upon careful scrutiny of the trial Court's findings, it is apparent that the Court, without adequately engaging with the defence put forth by the defendants, has merely relied upon the recitals contained in the Sale Deeds executed by the plaintiffs, Mallappa, and Basappa during their lifetime. It - 8 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 is significant to note that these Sale Deeds were executed by the widow Shankrevva along with all the children, including Basappa. However, Mallappa had predeceased the execution of these Sale Deeds. The reference made in these Sale Deeds indicates that the properties in question were purportedly allotted to the plaintiffs and Basappa in an alleged oral partition. The trial Court, relying on these references, arrived at the conclusion that a prior partition had taken place within the family and that the plaintiffs had alienated their respective shares accordingly. 11. However, upon closer and meticulous examination of these recitals, we are of the considered opinion that the said references do not conclusively establish the existence of a prior partition between the plaintiffs and the defendants’ ancestor, Basappa. The language employed in the Sale Deeds merely indicates that the properties were allotted in an oral partition but does not categorically state that this partition was between the plaintiffs and Basappa. Rather, a more reasonable interpretation of these recitals suggests that the properties were initially allotted to the - 9 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 propositus, Channabasappa, in the said oral partition. Moreover, the very fact that Basappa himself was a party to the Sale Deeds and had executed them renders it untenable for the defendants to now assert that the plaintiffs had already disposed of their share in the alleged partition. Such a stance, in our view, is legally impermissible and stands in contradiction to the recitals contained in the Sale Deeds. 12. Furthermore, paragraph No.4 of the written statement, as extracted earlier, is in direct conflict with the contents of the registered Sale Deeds. The defendants have specifically pleaded that the plaintiffs and the widow of Channabasappa had accepted gold and cash in lieu of their share in the landed properties and had, therefore, relinquished their rights. According to the defendants, the landed properties were exclusively allotted to Basappa and Mallappa. However, this crucial assertion remains wholly unsubstantiated, as the defendants have failed to produce any cogent rebuttal evidence to support this plea. If the defendants maintain that no landed properties were ever allotted to the plaintiffs, then reliance on the recitals in the - 10 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 Sale Deeds to claim prior partition also becomes legally unsustainable. Additionally, the sale of a portion of land in Sy.No.58/4 by the widow and all the daughters, including Basappa, further reinforces the inference that the land was jointly owned by both the plaintiffs and the defendants' ancestor, Basappa. 13. The defendants, having set up a defence of prior partition, have done little to substantiate their claim apart from producing the Sale Deeds. A plea of prior partition requires compelling evidence to prove that such an arrangement had indeed been effectuated. However, beyond the mere mention of partition in the Sale Deeds, no corroborative evidence has been placed on record by the defendants to fortify their stand. The specific plea that the plaintiffs had accepted gold and cash in lieu of their rightful share in the ancestral properties has remained a bald assertion, devoid of any supporting material. Without substantive proof, such a plea lacks credibility and cannot be relied upon to deny the plaintiffs' claims. Given the lack of evidence supporting the defence, we are inclined to hold that - 11 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 the plaintiffs have successfully demonstrated that the suit schedule properties are joint family ancestral properties. 14. The plaintiffs' claim is further strengthened by documentary evidence in the form of Ex.P1 to Ex.P6, which establish that their names are duly recorded in both the 'owners' column and the 'cultivators' column concerning all the suit schedule properties. These documents provide unassailable proof of the plaintiffs' undivided interest in the properties in question, further reinforcing their claim that the suit properties are ancestral in nature and were jointly held. 15. In view of the foregoing discussion, we find that the trial Court has erred in its assessment of the pleadings and the evidence. The trial Court’s finding on issue No.1 is perverse, as it is based on an incorrect appreciation of the material on record. Similarly, the finding on issue No.2 is contrary to the stand taken by the defendants in paragraph No.4 of their written statement. The defendants specifically pleaded that the plaintiffs had relinquished their rights in exchange for gold and cash, but they failed to adduce any - 12 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 rebuttal evidence to support this assertion. Given the lack of supporting evidence, the conclusion drawn by the trial Court regarding prior partition is unsustainable. The trial Court failed to note that if the plaintiffs had indeed given up their rights in the properties, there would be concrete evidence of such a transaction. The absence of any such proof renders the defendants' plea baseless. 16. In an attempt to support their contentions, learned counsel for the respondents/defendants, Sri Sourabh A. Sondur, sought to rely on certain judicial precedents, specifically the judgments in the cases of: (i) RFA No.873/2013 (Smt. Sudhamani vs. Smt. Laxmamma and others), and (ii) RFA No.1689/2019 (Sri Chikkabeeregowda vs. Smt. Seeremma W/o. Late Doddabeeregowda and others). However, upon careful perusal of the legal principles laid down in these judgments, we find that they are distinguishable on facts and do not have direct applicability to the present case. The factual matrix in the present case materially differs from the cited cases, and therefore, the - 13 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 reliance placed on these judgments does not advance the defendants’ case. 17. It is also pertinent to note that plaintiff No.5, Shankrevva, has passed away intestate. Consequently, her share in the properties stands devolved among all the branches in accordance with the principles of succession. In light of this development, the plaintiffs No.1 to 4, along with the legal representatives of Basappa’s branch, are each entitled to a 1/5th share in the suit schedule properties. Accordingly, the question framed above is answered in the affirmative Conclusion and reasons for reversal: 18. In light of the analysis above, it is evident that the trial Court's findings are erroneous and contrary to the evidence presented. The trial Court's reliance on the recitals in the Sale Deeds was misplaced, as those recitals did not conclusively prove prior partition. Furthermore, the defendants failed to provide any substantive evidence to - 14 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 support their claims of prior partition or relinquishment of rights by the plaintiffs. 19. The documentary evidence, particularly Ex.P1 to Ex.P6, clearly establishes the plaintiffs' co-ownership of the suit schedule properties, reinforcing their claim that these properties remain joint family ancestral properties. The trial Court's failure to appreciate these crucial pieces of evidence resulted in an incorrect finding. 20. Additionally, the trial Court overlooked the contradiction in the defendants’ pleadings, specifically in paragraph No.4 of their written statement, wherein they claimed that plaintiffs had accepted gold and cash in lieu of their share, yet failed to prove the same. This inconsistency further weakens the defendants’ case. 21. For these reasons, we hold that the findings of the trial Court on issue Nos.1 and 2 suffer from perversity and are unsustainable in law. Consequently, the judgment and decree of the trial Court are set aside, and the plaintiffs are - 15 - NC: 2025:KHC-D:5614-DB RFA No. 100429 of 2019 held entitled to their legitimate share in the suit schedule properties. 22. For the foregoing reasons, we proceed to pass the following: ORDER (i) Appeal is allowed. (ii) Judgment and Decree dated 11.07.2019 passed in O.S.No.120/2010 by the learned Principal Senior Civil Judge and JMFC, Jamkhandi is hereby set-aside. (iii) Plaintiffs No.1 to 4 are entitled for 1/5th share each and defendants No.1 to 6 are jointly entitled for 1/5th share in the suit schedule properties. (iv) Draw preliminary decree accordingly. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE CKK/AM Ct-cmu LIST NO.: 1 SL NO.: 27