- 1 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1700 OF 2017 (PAR) BETWEEN: SRI. V.R. SREEDHAR BHAT S/O RAMA BHAT, AGED ABOUT 61 YEARS, R/O VARDALLI, SAGAR TALUK, SHIVAMOGGA DISTRICT - 577 201. …APPELLANT (BY SRI. NARAYAN MAYYAR, ADVOCATE FOR SRI. S.R. HEGDE HUDLAMANE, ADVOCATE) AND: 1. SMT. NIRMALA W/O MAHABALESHWARA K.M., AGED ABOUT 50 YEARS, R/O JAMBANE, KASABA HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT - 577 201. 2. SMT. RAJESHWARI @ GAYATHRI W/O ANANTHA HEGADE, AGED ABOUT 52 YEARS, R/O HIREMANE, TALAGUPPA HOBLI, SAGAR TALUK, SHIVAMOGGA DISTRICT - 577 201. …RESPONDENTS (BY SMT. CHETHANA MANJUNATH, ADVOCATE FOR SRI. B.S. MANJUNATH, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF THE CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 18TH APRIL, 2017 PASSED IN REGULAR APPEAL NO.5 OF 2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., SAGAR, DISMISSING THE APPEAL AND Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 CONFIRMING THE JUDGMENT AND DECREE DATED 05TH NOVEMBER, 2012 PASSED IN ORIGINAL SUIT NO.290 OF 2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) SAGAR. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by the defendant No.1, challenging the judgment and decree dated 18th April, 2017 passed in Regular Appeal No.5 of 2013 on the file of the Additional Senior Civil Judge and JMFC., Sagar (for short, hereinafter referred to as 'First Appellate Court'), dismissing the appeal and confirming the judgment and decree dated 05th November, 2012 passed in Original Suit No.290 of 2009 on the file of the Principal Civil Judge (Jr.Dn.), Sagar (for short, hereinafter referred to as 'Trial Court'), wherein the suit of the plaintiff came to be decreed. 2. For the sake of convenience, parties in this appeal are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff, defendant No.1 and defendant No.3 are the children of defendant No.2-Bhagirathi and late Ramabhatta. The said Ramabhatta died on 25th July, 2002. The suit schedule properties are the joint family properties of the plaintiff and - 3 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 defendants. Hence, the plaintiff filed Original Suit No.290 of 2009 before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties. 4. After service of notice, defendants 1 and 3 entered appearance, however defendant No.1 filed detailed written statement denying the averments made in the plaint. Due to steps having not been taken in respect of the defendant No.2, the appeal against the defendant No.2 was dismissed for not taking steps. 5. It is the specific contention of the defendant No.1 in the written statement that the item No.1 of the plaint 'A' schedule property was granted to late Ramabhatta by the Land Tribunal. It is also stated that, late Ramabhatta was Archaka by occupation and therefore, item No.2 of the 'A' schedule property was purchased by late Ramabhatta. It is further stated in the written statement that, item Nos.1 and 2 of the plaint 'B' schedule property is the house, which was constructed by late Ramabhatta and therefore, it is the contention of the defendant No.1 that the plaintiff was not in possession of the property along with the defendant No.1. - 4 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 6. It is also stated by the defendant No.1 that, late Ramabhatta died on 25th July, 2002 leaving behind the Will in favour of the defendant No.2 for her lifetime and thereafter, in favour Kumari Bhavyashree D/o of the defendant No.1. Accordingly, sought for dismissal of the suit. 7. Based on the pleadings on record, Trial Court formatted issues for its consideration. 8. In order to establish their case, plaintiff examined herself as PW1 and marked 6 documents as Exhibits P1 to P6. On the other hand , defendant No.1 examined himself as DW1 and marked 3 documents as Exhibits D1 to D3. 9. The Trial Court, after considering the material on record, by its judgment and decree dated 05th November, 2012 decreed the suit of the plaintiff holding that the plaintiff, defendant No.1 and defendant No.3 are entitled for one-fourth share in the suit schedule properties. Being aggrieved by the same, the defendant No.1 preferred Regular Appeal No.5 of 2013 before the First Appellate Court and same was resisted by the plaintiff, defendants 2 and 3. The First Appellate Court, after re- appreciating the material on record, by judgment and decree - 5 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 dated 18th April, 2017, dismissed the appeal and modified the share of the parties to an extent of one-third each instead of one-fourth share in the suit schedule properties since, the defendant No.2 was died during the pending proceedings. Being aggrieved by the same, the defendant No.1 preferred this appeal. 10. Heard Sri. Narayan Mayyar, learned counsel on behalf of Sri. S.R. Hegde Hudlamane, appearing for the appellant and Smt. Chethana Manjunath, learned counsel on behalf of Sri. B. S. Manjunath, appearing for respondents 1 and 2. 11. Sri. Narayan Mayyar, learned counsel appearing for the appellant contended that the suit came to be dismissed as against the defendant No.2 for not taking steps by the plaintiff and therefore, the Trial Court ought to have dismissed the entire suit without granting any relief taking into consideration the provision contained under Order I Rule 9 of the Code of Civil Procedure. 12. Per contra, Smt. Chethana Manjunath, learned counsel appearing for respondents submitted that the F.D.P. No.2 of 2014 was filed pursuant to the judgment and decree passed by - 6 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 the Courts below and the said proceedings has reached finality on 05th January, 2024. Accordingly sought for dismissal of the appeal. 13. Having heard the learned counsel appearing for the parties, in order to understand the relationship between the parties, the Genealogical Tree in respect of parties is shown below: 14. Perusal of the Genealogical Tree would indicate that, late Ramabhatta and Bhagirathi (defendant No.2) had three children namely, Durgambha (died), Sridhara Bhatta (defendant No.1), Rajeshwari @ Gayeetri (defendant No.2) and Nirmala (plaintiff). Ramabhatta died on 25th July, 2002. On careful consideration of the finding recorded by the Trial Court on issue No.2 would indicate that the suit schedule properties are the joint family properties of the plaintiff and defendants. In that RAMABHATTA (DIED) BAHGIRATHI (W/O RAMABHATTA) (defendant No.2) SRIDHARA BHATTA (defendant No.1 RAJESHWARI @ GAYEETRI (defendant No.2 DURGAMBHA (DIED) NIRMALA (plaintiff) - 7 - HC-KAR NC: 2025:KHC:33824 RSA NO.1700 OF 2017 view of the matter, I am of the view that the children of late Ramabhatta and defendant No.2-Bhagirathi (who died during the pendency of the proceedings) are entitled for one-third share each in the suit schedule properties. Therefore, I do not find any perversity in the judgment and decree passed by the Courts below. Though the steps had not been taken in respect of the defendant No.2, who died during the pendency of the appeal, the same would not affect the end result. Hence, the finding recorded by the First Appellate Court allotting one-third share each to the plaintiff, defendant No.1 and defendant No.3 in the suit schedule properties is just and proper. In that view of the matter, the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of the Code of Civil Procedure CPC. Hence, appeal is dismissed at the stage of admission itself. SD/- (E.S.INDIRESH) JUDGE ARK List No.: 1 Sl No.: 33