- 1 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100294 OF 2019 (PAR/POS) BETWEEN: SHRI. SURESH S/O. GOPAL PAWAR AGE: 50 YEARS, OCC: EX-SERVICEMAN, R/O: H.NO.655, VIJAY NAGAR, BELAGAVI-591108. …APPELLANT (BY SMT. CHETANA S. BIRAJ, ADVOCATE) AND: 1. SHRI. YALLOJI, S/O. GOPAL PAWAR AGE: 60 YEARS, OCC: RETIRED, R/O: H.NO.655, VIJAY NAGAR, BELAGAVI-591108. 2. SMT. LATA, W/O. YALLOJIRAO PATIL AGE: 54 YEARS, Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.01.23 12:40:08 +0530 - 2 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 OCC: HOUSEHOLD WORK, R/O: AT POST: DHOLGARWADI, TQ: CHANDGAD, DIST: KOLHAPUR-416507. 3. SHRI. VASANT, S/O. GOPAL PAWAR AGE: 71 YEARS, OCC: RETIRED, R/O: PLOT NO.4, H.NO.1119, NEAR SHIV GANESH TEMPLE, LAXMI NAGAR, HINDALAGA, BELAGAVI-591108. …RESPONDENTS (BY SMT. DEEPA P. DODDATTI, ADVOCATE FOR SRI. SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1 AND R2; NOTICE TO R3 SERVED) THIS RFA IS FILED UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE, AGAIST THE JUDGMENT AND DECREE DATED 15.02.2019 PASSED IN O.S.NO.263/2014 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI DECREEING THE SUIT FILED FOR DECLARATION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed challenging the judgment and preliminary decree dated 15.02.2019 passed in OS No.263/2014 by the learned IV Addl. Senior Civil Judge and JMFC., Belagavi (hereinafter for short referred to as the ‘trial Court’). 2. For convenience, the parties are referred to, as per their ranking before the trial Court. 3. The appellant was defendant No.2, respondent Nos.1 and 2 were the plaintiffs and respondent No.3 was defendant No.1. Brief facts leading rise to the filing of this Regular First Appeal are as under:- The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that originally, the suit schedule property was purchased by Vitthal Son of Krishna Pawar under a registered sale deed dated 13.06.1950 from the Kulkarni family. The propositus, Vitthal son of Krishna Pawar, and his wife died long ago, leaving behind their only son, Gopal. On the demise of propositus, his - 4 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 son Gopal Vitthal Pawar inherited the suit property. On the demise of propositus, the name of Gopal, son of Vitthal Pawar, came to be entered in the records. Gopal married Smt. Radhabai. Defendant No.1 was born to Gopal and Radhabai. After the demise of Radhabai, Gopal married Lakshmibai. The Plaintiffs and defendant No.2 were born to Lakshmibai through Gopal. Gopal died on 09.02.1997, leaving behind the plaintiffs and the defendants as his legal heirs. On the demise of Gopal, the plaintiffs and defendants have inherited the suit schedule property. Lakshmibai died on 31.08.2011, leaving behind the plaintiffs and the defendants as her legal heirs. The plaintiffs and the defendants are members of the Hindu Undivided Family. It is contended that, the suit schedule property is the ancestral and joint family property of the plaintiffs and defendants. No partition is effected between the plaintiffs and defendants. The plaintiffs requested the defendants to effect the partition, but the defendants refused. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit of the plaintiffs. - 5 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 4. The defendant No.1 filed a written statement stating that, the suit filed by the plaintiffs was false and frivolous, and he denied the averments made in the plaint, it is contended that, the description of the suit property shown in paragraph No.1 of the plaint is vague. It is contended that, the propositus of the family of the plaintiffs and defendants was one Vitthal Son of Krishna Pawar. During his life time, he had purchased the suit schedule property under a registered sale deed dated 13.06.1950. It is also admitted that, the Vitthal had a wife and a son by the name of Gopal. After the death of propositus, Gopal inherited the suit schedule property. Gopal married one Radhabai, and defendant No.1 is the son of Gopal and Radhabai. After the demise of Radhabai, Gopal married Lakshmibai, and the plaintiffs and defendant No.2 were born to Lakshmibai through Gopal. It is stated that Gopal died on 09.02.1997. It is contended that the defendant No.1 sold his share allotted in the partition in favour of the defendant No.2 as per sale deed dated 14.09.2005, for consideration of Rs.1,80,000/- and subsequently, defendant No.1 executed unregistered sale deed in favour of the defendant No.2. The defendant No.2 became the absolute owner of the suit schedule - 6 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 property by unregistered sale deed dated 14.09.2005, and it is contended that, there was a prior partition in 1996 between the plaintiffs and the defendants and the same was reduced into writing by way of a memorandum of partition dated 16.01.1997. Hence, the suit filed by the plaintiffs is not maintainable. There is no cause of action to file a suit by the plaintiffs. The cause of action shown in the plaint is false and imaginary. Hence, on these grounds, prays to dismiss the suit. 5. The trial Court, based on the aforesaid pleadings of the parties, has framed the following issues:- “1. Whether the plaintiffs prove that the suit schedule property is the joint family property of themselves and defendants and they are the members of the joint family? 2. Whether the defendants prove that the partition has taken place in respect of suit property between themselves and the plaintiffs by metes and bounds? 3. Whether the plaintiffs are entitled for shares in the suit property? 4. What order or decree?” - 7 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 6. The plaintiffs to prove their case, plaintiff No.1 examined himself as PW.1 and marked seven documents as Ex.P1 to Ex.P7. Defendant No.2 was examined as DW1, examined one witness as DW2 and marked twenty nine documents as Ex.D1 to Ex.D.29. 7. The trial Court, after recording the evidence, hearing on both the sides and the assessment of oral and documentary evidence, answered issue Nos.1 and 3 in the affirmative, issue No.2 in the negative and issue No.4 as per the final order. The suit of the plaintiffs was decreed with cost. It is declared that, the plaintiffs and defendants are entitled to their legitimate shares in the suit property. The defendant No.2, aggrieved by the judgment and preliminary decree passed in OS No.263/2014 dated 15.02.2019 by the IV Addl. Senior Civil Judge and JMFC., Belagavi filed this Regular First Appeal. 8. Heard the learned counsel appearing for defendant No.2 and the learned counsel appearing for the plaintiffs. 9. Learned counsel for defendant No.2 submits that, there was a partition effected between the plaintiffs and the - 8 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 defendants in 1996 during the life time of the Gopal i.e. the father of the plaintiffs and defendants, and the same was reduced into writing in 1997 by way of a memorandum of partition marked as Ex.D.15. She submits that, based on Ex.D15, name of the defendant No.2 was entered in the revenue records. She submits that, the parties have acted upon Ex.D15. The said aspect was not properly considered by the trial Court. She also submits that, PW.1, during the course of cross examination admitted that, the plaintiffs and defendants are residing separately, and hence, defendant No.2 has proved that there was a prior partition between the plaintiffs and defendants. The trial Court has committed an error in decreeing the suit of the plaintiffs. Hence, the impugned judgment and preliminary decree passed by the trial Court is perverse, arbitrary and erroneous. Hence, on these grounds, she prays to allow the appeal. She further submits that the trial Court has committed an error in not properly considering Ex.D15 on the ground that, it is an unregistered document. Hence, prays to allow the appeal. 10. Per contra, learned counsel for the plaintiffs submits that, admittedly, the suit schedule property was purchased by - 9 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 Vitthal, son of Krishna Pawar, i.e. grandfather of the defendants and plaintiffs. After his demise, the plaintiffs’ father inherited the suit schedule property. She submits that after the demise of Sri.Vitthal Krishna Pawar, the plaintiffs and defendants have inherited the suit schedule property. The plaintiffs and defendants are the members of a Hindu Undivided Family, and no partition is effected between the plaintiffs and defendants. She submits that, the plaintiffs have denied the execution of Ex.D15, and the defendants have not taken any steps to prove the alleged signatures appearing on the Ex.D15. She submits that, though, the alleged Ex.D15 was executed in 1997, till 2018, it was not acted upon. She submits that PW.1 has never admitted regarding the alleged partition between the plaintiffs and the defendants. She submits that, the trial Court was justified in passing the judgment and preliminary decree. Hence, on these grounds, she prays to dismiss the appeal. 11. Perused the records and considered the submissions of the learned counsel for the parties. 12. The points that arise for our consideration are - 10 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 (i) Whether defendant No.2 proves that there was a prior partition in 1996 and the same was reduced into writing in 1997 as per Ex.D15.?” (ii) Whether the defendants have made grounds to allow the application filed under Order XLI Rule 27 of the Code of Civil Procedure? (iii) What order or decree? 13. Point No.(i):- The plaintiffs examined the power of attorney holder as PW.1. He reiterated the plaint averments in the examination in chief and to establish that, the suit schedule property is the ancestral and joint family property of the plaintiffs and defendants, the plaintiffs have produced the document marked as Ex.P1, which is the general power of attorney which discloses that the plaintiffs have authorized PW.1 to depose on behalf of the plaintiffs. Ex.P2 is a certified copy of the mutation extract, which discloses that, after the demise of Gopal, the suit property was transferred in the name of the plaintiffs and defendants. Ex.P3 is the certified copy of the mutation extract, which discloses that after the demise of Vitthal, the property was mutated in the name of Gopal. Ex.P4 is a record of rights regarding suit schedule property standing - 11 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 in the name of Vitthal i.e. propositus. Ex.P.5 is tax assessment of VPC No.655/1 standing in the name of Lakshmibai wife of Gopal Pawar i.e., mother of plaintiffs and defendant No.2. Ex.P6 is the death certificate of Gopal Vitthal Pawar who died on 09.02.1997. Ex.P7 is the death certificate of Lakshmibai wife of Gopal Pawar, i.e the mother of defendant No.2 and the plaintiffs. During cross examination, except suggesting that, there was a prior partition in 1996 and the same was reduced into writing in 1997 as per Ex.D15, which bears signatures of plaintiffs and defendant No.1. The said suggestion was denied by defendant No.1. 14. In rebuttal, defendant No.2 was examined as DW.1. He reiterated the written statement averments in his examination-in-chief. He has deposed that, the suit schedule property was purchased by his grandfather i.e. Vithal under a registered sale deed dated 13.06.1950. Vithal died leaving behind Gopal as his legal heir. After the demise of Vithal, the property was transferred in the name of Gopal, who is the father of the plaintiffs and the defendants. Gopal married one Radhabai, and defendant No.1 was born to them. Radhabai died leaving behind Gopal and defendant No.1 as legal heirs. - 12 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 After the death of Radhabai, Gopal married one Lakshmibai, and she gave birth to the plaintiffs and defendant No.2. He deposed that, there was a prior partition in 1996 and the same was reduced into writing in 1997. Hence, the plaintiffs are not entitled to share in the suit schedule properties. Further, to prove his defence, he has produced Ex.D-1, which is the tax assessment extract of suit schedule property; Exs.D-2 to D-12 are the photographs; Ex.D-13 is the resolution passed by the panchayat wherein, defendant No.2 submitted a wardi for transfer of the property to his name based on the Memorandum of Partition alleged to have been executed on 15.01.1997 and based on the wardi submitted by defendant No.2, Panchayat has passed an order on 19.06.2018 wherein, the Gram Panchayat passed a resolution to transfer the property in the name of defendant No.2. Ex.D-14 is the wardi submitted by defendant No.2 to Gram Panchayat to transfer the said property in his name and the said wardi was submitted on 16.06.2018. Ex.D-15 was marked subject to objections. Ex.D-16 is the tax assessment extract, which discloses the names of Laxmibai, the plaintiff and the defendants as the owner of the suit schedule property. Ex.D-17 is the death - 13 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 certificate of Kallappa, who was an attesting witness to Ex.D- 15. Ex.D-18 is the death certificate of Dattatreya, who is also an attesting witness to Ex.D-15. Ex.D-19 is the rough sketch; Exs.D-20 to 25 are the electricity bills, which disclose that, defendant No.2 is in possession and enjoyment of the suit schedule property; Exs.D-26 to D-29 are the receipts for having paid the electricity bills. Further, defendant No.2 examined one witness-Sri.Ramachandra s/o of Sri. Laxman Shinde as DW-2, deposed that, partition was effected between the plaintiffs and the defendants in 1996, and the same was reduced into writing in 1997. 15. From the perusal of the evidence of DWs.1 and 2, the defendants except producing Ex.D-15, have not produced any other records to establish a prior partition in 1996 and the same was reduced into writing as per Ex.D-15. Ex.D-15 was marked subject to objections. The defendant No.2 filed an application under Order XI Rule 14 of the Code of Civil Procedure for issuance of notice to defendant No.1 to produce the memorandum of partition dated 16.01.1997. On 15.06.2018 the trial Court directed defendant No.1 to produce the original memorandum of partition dated 16.01.1997. - 14 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 Sufficient opportunity was granted to the defendants. The defendants, despite granting sufficient opportunity, have not produced the original Memorandum of Partition. The defendants failed to establish a prior partition between the plaintiffs and the defendants in 1996, and the same was reduced into writing on 16.01.1997 as per Ex.D-15. The defendants have failed to prove the execution of Ex.D-15. The plaintiffs have denied their signature on Ex.D-15. The defendants have not taken any steps to refer the document to any Handwriting Expert. The defendants have failed to prove the execution of Ex.D-15 by not producing the original Memorandum of Partition, as ordered by the trial Court dated 15.06.2018. The trial Court has rightly drawn an adverse inference against the defendants under Section 114(g) of the Indian Evidence Act, 1872 and rightly held that, the defendants have failed to prove the prior partition between the plaintiffs and the defendants, and rightly decreed the suit of the plaintiffs. 16. In view of the above discussion, we answer Point No.(i) in the negative. - 15 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 17. Point No.(ii): Defendant No.2 filed an application in I.A.1/2019 for the production of additional evidence. In support of the application, an affidavit is filed contending that the plaintiffs have filed a suit for partition and separate possession and defendant No.2 filed the written statement and produced the documents. The trial Court decreed the suit. It is stated that, the documents could not be produced before the trial Court due to inadvertence, and it was neither deliberate nor intentional on the part of defendant No.2. It is stated that, the documents, now intended to produce are the said unregistered sale deed alleged to have been executed by defendant No.1 in favour of defendant No.2 in respect of the suit schedule property and defendant No.2 has paid the entire consideration amount. Defendant No.1 has admitted in his written statement about having sold his share to defendant No.2 and intends to produce the bank passbook for having availed of a loan at the time of purchase of a portion of the suit schedule property. The said documents are vital and indispensable to establish the defence of defendant No.2. Hence, prayed to allow the application for the production of additional documents. - 16 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 18. The plaintiffs have not filed objections. 19. Perused the affidavit filed by defendant No.2. In the application accompanied by an affidavit, defendant No.2 has not stated in the affidavit as to why the said documents were not produced before the trial Court though the said documents were in the custody of defendant No.2. Further, defendant No.2 has not explained the reasons for not producing the proposed additional documents before the trial Court. Defendant No.2 has failed to establish the requirement of Order XLI Rule 27 of CPC. Further, the object of Order XLI Rule 27 of CPC is not to fill up the lacuna as law laid down by the Hon’ble Apex Court in the case of N. Kamalam (dead) and another v. Ayyaswamy and another1 wherein it is held that ‘provisions of Rule 27 of CPC are not designed to help parties patch up weak points and make up for omissions earlier made. The jurisdiction of appellate Court is restricted to permitting such additional evidence as would enable it to pronounce judgment.’ Thus, defendant No.2 has not fulfilled the requirement of Order XLI Rule 27 of CPC. 1 (2001) 7 Supreme Court Cases 503 - 17 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 20. Admittedly, defendant No.2 has produced the alleged agreement of sale alleged to have been executed by defendant No.1 in favour of defendant No.2 and also unregistered sale deed alleged to have been executed by defendant No.1 in favour of defendant No.2. Defendant No.2 has not acquired any title by virtue of an unregistered sale deed, alleged to have been executed by defendant No.1 in favour of defendant No.2. Further, the plaintiffs are not signatory to the alleged sale deed. Unless the deed of conveyance through which the alleged transfer took place was registered in accordance with the provisions of the Registration Act, the defendant No.2 has not acquired any valid title by unregistered sale deed Ex-D15. The defendant No.2 fail to meet the requirement of a valid sale under Section 54 of the Transfer of Property Act. The Hon’ble Apex Court in the case of Sanjay Sharma V/s Kotak Mahindra Bank ltd. & Others in SLP(C) No.330/2017 disposed of on 10.12.2024 held that unless the deeds of conveyance through which the alleged transfer took place were registered in accordance with the Section 17 of the Registration Act, 2008 till then, there is no conveyance in the eyes of law. The alleged sale deed is not binding on the - 18 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 plaintiffs. Hence, defendant No.2 has not made out any grounds to entertain I.A.1/2019. Though, the trial Court has decreed the suit, the trial Court has not awarded the quantum of share to the parties. From the records, it clearly discloses that, the plaintiffs and the defendants each, are entitled to 1/4th share in the suit schedule property. Exercising jurisdiction under Order XLI Rule 33 of CPC, we modify the judgment and preliminary decree passed by the trial Court. 21. In view of the above discussion, we answer Point No.(ii) in the negative. 22. Accordingly, we answer Point No.(iii) and proceed to pass the following: ORDER The appeal is allowed in part. The judgment and preliminary decree dated 15.02.2019 passed by the learned IV Additional Senior Civil Judge and JMFC, Belagavi, in O.S. No.263/2014, is modified. It is declared the plaintiffs and the - 19 - NC: 2025:KHC-D:91-DB RFA No. 100294 of 2019 defendants, each, are entitled to 1/4th share in the suit schedule property. Draw preliminary decree. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB-Upto para 13 Kmv-from para 14 till end ct-cmu