- 1 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.1105 OF 2007 (DEC) BETWEEN: SRI M CHOWDAIAH S/O SRI KURI MANIAYYA AGED ABOUT 64 YEARS RESIDING AT KULAGERE AND MANTEPURA, KASABA HOBLI, GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT-582 104 …APPELLANT (BY SRI RAGHAVA PARTHASARATHY, ADVOCATE) AND: 1. SRI CHOWDAIAH @ CHIKKA GANGAIAH S/O SRI KURI MANIAYYA AGED ABOUT 62 YEARS RESIDING AT KULAGERE, KASABA HOBLI GUNDLUPET, CHAMARAJANAGAR DISTRICT-582 104 2. SRI MANIAYYA S/O SRI KURI MANIAYYA AGED ABOUT 39 YEARS RESIDING AT KULAGERE, KASABA HOBLI GUNDLUPET TALUK CHAMARAJNAGAR DISTRICT-582 104 …RESPONDENTS (BY SMT.B.N.MANJULA FOR SRI R C NAGARAJ, ADVOCATES FOR R1; R2 IS SERVED AND UNREPRESENTED) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 THIS RFA IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 21.11.2006 PASSED IN O.S.NO.62/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), CHAMARAJANAGAR, DECREEING THE SUIT FOR DECLARATION AND PARTITION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Raghava Parthasarathy, learned counsel for the appellant and Smt.B.N.Manjula, advocate for Sri R.C.Nagaraj, learned counsel for the respondent No.1. 2. The present appeal is filed by the first defendant challenging portion of the judgment and decree (in respect of item No. 4) passed in O.S No.62/2003 on the file of Civil Judge (Senior Division), Chamarajanagar. 3. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court. 4. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: A suit in O.S No.62/2003 came to be filed on the file of the Civil Judge (Sr.Dn.), Chamarajanagara, in respect of the - 3 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 following 6 items of immovable properties hereinafter referred to as suit properties with the following prayer: “SCHEDULE Item No.1: Agricultural land bearing Sy. No.70/2, extent 2.29 acres, situated at Kilagere village, Kasaba Hobli, Gundlupet Taluk. Item No.2: Agricultural land bearing Sy. No.70/3, extent 2 acres, situated at Kilagere, both Item No.1 and 2 having common boundary bounded on the East by Land of Mahadevappa, West by Land of Chikkaranganaika, South by: Land of Ramachandrappa, North by Land of Dodda Mahadevappa. Item No.3: Agricultural land bearing Sy.No.242/P50, extent 5.01 acres, situated at Barigi village, Kasaba Hobli, Gundlupet Taluk, bounded on the East by: Land of Writer Ningaiah, West by Tank, South by Land belonging to basis of Marikallaiah, North by: Land of Kalaiah and Rangaiah. Item No.4: Agricultural land bearing Sy. No.242/P36, extent 4 acres, situated at Baragi village, Kasaba Hobli, Gundlupet Taluk, bounded on the East by : Hill, West by: Land of Paramapurada - 4 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 Hanumaiah, South by :Land of Chowdamma, North by: Land of Chennaiah. Item No.5: 3 Ankanam House property situated at Kiligere village, Kasaba Hobli, Gundlupet Taluk, bounded on the East by: House of Basavaiah, West by: Road, South by: House of Madaiah, North by House of Chowdamma. Item No.6: Vacant site situated at Kiligere village, bounded on the Past by: property of Yejaman Basavaiah, West by: Road, South by House of Chowdamma, North by: House of Mallaiah.” PRAYER IN THE PLAINT: “WHEREFORE, the plaintiff prays that this Hon’ble court in the interest of justice and equity be pleased to pass a judgment and decree in his favour and against the defendants: (a) for declaration that the plaintiff is entitle for 1/3rd share in all the schedule properties, (b) for partition and separate possession of plaintiff 1/3rd share by metes and bounds in all the schedule properties, and (c) for cost of this suit.” - 5 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 5. Plaintiff contended that plaintiff and defendants were living in joint family. First defendant is the elder brother of the plaintiff and he was acting as kartha of the joint family. All the schedule properties are ancestral properties of the plaintiff and defendants when they were in joint family. Property mentioned in Item No.4 was granted in the name of first defendant, but for the benefit of entire joint family. 6. On 01.07.1975, plaintiff and defendants effected partition, dividing all the suit properties among them. The said partition was reduced into writing. The plaintiff and defendants have affixed their signature to the said unregistered palupatti. In the said partition, property mentioned in item No.4 was given to the share of the plaintiff and khatha stood transferred in favour of the plaintiff. 7. Subsequently in year 1996-97, first defendant filed an appeal before the Assistant Commissioner in respect of revenue entries in RRT No.49/1996-97 for change of khatha in respect of item No. 4. - 6 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 8. The Assistant Commissioner allowed the appeal and directed the name of first defendant to be mutated in the revenue records in respect of item No.4. 9. It is further contented by the plaintiff that act of first defendant is against the interest of the family and in particular against the interest of the plaintiff. 10. Therefore, he demanded for re-partitioning of the property in respect of all the items of the property ignoring the earlier partition. 11. Pursuant to the suit summons, defendants entered appearance and filed common written statement wherein relationship is admitted, so also, item Nos.1 to 3, 5 and 6 being the properties of the joint family. 12. However the defendants maintained that item No.4 of the suit properties is exclusive property of the first defendant having been granted by the Government in favour of first defendant. Therefore, sought for dismissal of the suit in respect of item No. 4 of the suit property. - 7 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 13. Based on the rival contents of the parties, learned Trial Judge raised the following issues: (i) Whether the plaintiff proves that the suit properties are the joint family properties of plaintiff and defendants? (ii) Whether the plaintiff further proves that the suit properties are in joint possession of the plaintiff and the defendants? (iii) Whether the defendants prove that the suit is not maintainable without seeking the relief of cancellation of earlier partition deed dated 1.7.1975? (iv) Whether the 1st defendant further proves that the item No.4 of the suit property is the exclusively self-acquired property of 1st defendant as alleged in para 7 of the written statement? (v) Whether the defendants prove that the suit is bad for non joinder of necessary parties? (vi) What order or decree?” 14. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W-1 and placed on record five documents which were exhibited and marked as Exs.P-1 to P-5 - 8 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 comprising of four RTC extracts and copy of the Order passed by the Assistant Commissioner, Kollegala, in RRT proceedings. 15. Examination-in-chief of the plaintiff is nothing but the reiteration of the plaint averments in verbatim by way of an affidavit. 16. In his cross- examination, he has answered that father of the plaintiff and defendants died about 10 years earlier and he is an illiterate. He has answered that himself and first defendant are living separately for about 30 years and he was enjoying item No.4 of the suit properties for about 30 years. Subsequently, there was an order passed by the Assistant Commissioner which made him to file the present suit. 17. He denied the suggestion that item Nos.1 and 2 are not being cultivated by him or by the defendants. He specifically denied the suggestion that item No.4 was specifically granted in the name of the first defendant. He also answered that item No.4 is in the name of his elder brother (defendant No.1). He has stated that the said property has come to him through - 9 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 darkasth. He denied the suggestion that item No.4 is not the joint family property. 18. He denied the suggestion that first defendant is the exclusive owner of item No.4. Remaining portions of the cross- examination are unnecessary for the disposal of the present appeal. 19. As against the evidence placed on record by the plaintiff, on behalf of defendants, first defendant got examined himself as D.W-1 and one Puttaraju is examined as D.W-2. They have placed on record seven documents which were exhibited and marked as Exs.D-1 to D-7, comprising of grant certificate, RTC extract, order copy of the Assistant Commissioner, Assessment extract copy, receipt about the land and mutation extract. 20. First defendant got examined himself as D.W.1 and reiterated the averments made in the written statement as his evidence in examination-in-chief. 21. In his cross-examination, he admits that he has subscribed his signature to Ex.P-6 which is marked at Ex.P-6(a) and he admits that under Ex.P-6, item No.4 had fallen to the - 10 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 share of the plaintiff. But he has approached the Assistant Commissioner, Kollegala, and got the revenue entries transferred onto his name. 22. He has also stated that the mutation entries were transferred onto his name based on the orders of the Assistant Commissioner and his father was an illiterate person. He also admits that grant was made in his favour on account of illiteracy of his father. He denies the suggestion that he was managing the family as karta. 23. In the cross-examination of D.W-2, he admits that mother and wife of the first defendant are sisters and he does not know anything about the earlier partition. The above evidence on record was appreciated by the learned Trial Judge in decreeing the suit of the plaintiff. 24. Being aggrieved by the same, the first defendant has filed the present appeal on the following grounds:  “The Court below was in error in holding that the property was that of the joint family comprising of plaintiff and defendants and item No.4 of suit schedule was also a family property though the - 11 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 material evidence on record viz. Ex.D-1, D2, D3 and D7 disclose that the property was not that of the family as on 1.7.1975 as pleaded by the plaintiff as according to records the property came to the hands of the appellant only on 27.3.1980 by virtue of issue of saguvali chit and grant certificate.  The Court below was in error in considering the suit for partition and possession when the pleading of the plaintiff was that there was a partition in the year 1975 and therefore he cannot ask for partition afresh. In view of the fact that the plaintiff pleads his case on the basis of the partition said to have come into being on 1.7.2005 his remedy was only to file a declaratory suit in respect of the item that he claims as his property. Even otherwise, the suit is filed subsequent to the order of the Assistant Commissioner allowing the appeal of the appellant holding that the property is that of the appellant. In such a case plaintiff was expected to file a suit only under section 132(5) of the Karnataka Land Revenue Act and not otherwise. That is to say he should have filed a suit for declaration as contemplated under section 6 of the Specific Relief Act and therefore, the suit as - 12 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 brought was not permissible and liable to be rejected.  The case of the plaintiff has been that there was a partition and severance of status on 1.7.1975. He files a suit for partition and possession in 2003 alleging that the said partition has not been accepted by the defendants and therefore fresh partition has to take place which is not permissible in law. In the light of the fact that the plaintiff himself had pleaded the partition and which amounts to severance of status filing of the suit after 12 years after severance is not permissible in the eye of law and therefore, the suit had to be dismissed, but the learned Judge misconstrued the matter, has decreed the suit.  The Court below was in error in not looking into the documents produced before the Court which will be of presumptive value which presumption had not been rebutted by the plaintiff. According to Ex.D1 the appellant was put in possession on 27.3.1980 in pursuance of a grant in 1979. The mutation that had been accepted in favour of the appellant was in 1981-82 while the time to get it changed and got it done was far earlier to it which has been set aside by the Assistant Commissioner and restored to the name of the - 13 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 appellant. In this view of the matter the judgement and decree of the Court below is contrary to law and available evidence on record and liable to be set aside. It is interesting to point out that the plaintiff in his pleading and evidence did not say the fact that the land in question was in his possession pending grant by the Authority and the joint family was in possession of the property. The observation of the learned Judge on the basis of the evidence of one of the Whay witnesses neither the plaintiff nor the evidence of the plaintiff disclose the earlier possession or any such thing and the subsequent grant and the condition. In view of the fact that the alleged partition on 1.7.1975 do not disclose that the property bun is yet to be granted and subject to regularization it has been given to plaintiff, the suit had to fail.  The Court below erred in not noticing that none of the records produced by the plaintiff do disclose either the possession or the allotment in favour of the plaintiff of item No.4 of the schedule property. In this view of the matter the judgment and decree is bad in law and liable to be set aside. - 14 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007  The quantum of share granted by the Court below is not correct.” 25. Learned counsel for the appellant Sri Raghava Parthasarathy reiterating the grounds urged in the appeal memorandum vehemently contented that when once the property is allotted in favour of one individual, after the partition has taken place, it will be his individual property. Therefore, the plaintiff ought not to have claimed the right over item No.4 of the suit property which has resulted in miscarriage of justice and sought for allowing the appeal to that extent. 26. Per contra, Smt. Manjula, learned counsel representing Sri Nagaraj, learned counsel for the contesting respondents supports the impugned judgment. 27. She would further contend that Ex.P-6 is admitted by the first defendant and he has specifically stated that he has signed Ex.P6 which is marked as Ex.P.6(a) and item No.4 of the suit property was allotted to the plaintiff under Ex.P-6. However, with ulterior motive, the first defendant filed an appeal before the Assistant Commissioner in RRT No.49/1996-97 and got the revenue entries mutated in his name which resulted in plaintiff - 15 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 filing the suit which has been rightly appreciated by the learned Trial Judge while decreeing the suit and sought for dismissal of the appeal. 28. Having heard the arguments of both sides, the only point that would arise for consideration in the present appeal is, “Whether the finding recorded by the learned Trial Judge that item No.4 is the joint family property and the plaintiff and defendants are entitled for 1/3rd share in item No. 4 of the suit property as well?” 29. In this regard, on perusal of the material on record, it is found that the grant certificate is marked at Ex.D-1. Admittedly, father of the plaintiff is an illiterate person. D.W-1 in his cross-examination admitted about the illiteracy of the father. First defendant therefore, applied for the grant for and on behalf of the joint family. When the grant has been made, all the properties of the joint family were put to common hotchpotch and that was the subject matter of Ex.P-6. Pertinently, there is no dispute about veracity of Ex.P.6. - 16 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 30. Ex.P-6 having been admitted by the first defendant and his signature is also marked in his cross-examination, item No.4 of the property was allotted to the plaintiff in Ex.P-6. 31. If it is the individual property of the first defendant as is contended, where was the necessity for the first defendant to join for the partition of the joint family property under Ex.P-6 is a question that remains unanswered. 32. Further, after the revenue entries were mutated by the plaintiff in respect of item No.4 of the property and was in enjoyment of item No. 4, all of a sudden the first defendant applied for transfer of the mutation entries in respect of item No.4 of the suit property before the Assistant Commissioner in RRT No.49/1996-97. 33. The Assistant Commissioner, after enquiry re-transferred the name of the first defendant in respect of item No.4 of the suit property which necessitated the plaintiff to apply for grant of share in all the properties ignoring Ex.P-6. 34. Learned Trial Judge accepting the settled position of law and also taking note of the fact that first defendant having - 17 - HC-KAR NC: 2025:KHC:43738 RFA No. 1105 of 2007 been party to Ex.P-6, later on got the mutation entries in his name, rightly decreed the suit granting 1/3rd share in all the items of the suit property to the plaintiff and defendant Nos.1 and 2. 35. Therefore, in the absence of any specific material placed on record to establish that the item No.4 is the individual property of the first defendant, decreeing of the suit by the learned Trial Judge cannot be faulted with. 36. In view of the foregoing discussion the point raised for consideration is answered against the appellant/defendant No.1 and in favour of the respondent No.1/plaintiff. 37. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 66