- 1 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1566 OF 2025 (PAR) BETWEEN: 1. SRI. S.G. VIRUPAKSHAPPA AGED ABOUT 79 YEARS S/O.LATE S.G. BASAPPA PATEL RESIDING AT SUGURU VILLAGE HOLALUR HOBLI SHIVAMOGGA TALUK-577 216. REPRESENTED BY GPA HOLDER G.V.MANJUNATH AGED ABOUT 45 YEARS S/O. S.G.VIRUPAKSHAPPA RESIDING AT SUGURU VILLAGE SHIVAMOGGA TALUK-577 216. …APPELLANT (BY SRI. BHADRI R @ BHADRINATH R., ADVOCATE) AND: 1. SRI. S. GIRISH AGED ABOUT 64 YEARS S/O.S.G.BASAPPA PATEL RESIDING AT GOVINAKOVI VILLAGE HONNALI TALUK-577 216 DAVANAGERE DISTRICT. AND ALSO RESIDIGN AT SUGUR VILLAGE SUGUR POST Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 SHIVAMOGGA TALUK-577 216 SHIVAMOGGA DISTRICT. …RESPONDENT (BY SRI. PRASAD B.S., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.08.2025 PASSED IN R.A.NO.15/2021 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.04.2021 PASSED IN O.S.NO.129/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. - 3 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 3. The Trial Court granted the relief of partition and declaration that plaintiff is entitled for half share in the suit schedule property. The main contention of plaintiff is that suit schedule property is a joint property of plaintiff and defendant and is allotted to the joint share of plaintiff and defendant under partition deed dated 02.07.1991. It is also the case of the plaintiff that he along with defendant are in joint possession and enjoyment of the suit schedule property and the defendant took the contention that it is his self aquired-property. 4. The Trial Court taking note of the material available on record and also the pleadings of the parties framed the issues and allowed the parties to lead evidence. The plaintiff examined himself as P.W.1 and got marked the documents as Exs.P1 to P10. On the other hand, the GPA holder of the defendant got examined as D.W.1 and got marked the documents as Exs.D1 to D27. 5. The Trial Court having considered both oral and documentary evidence comes to the conclusion that property belongs to both the plaintiff and defendant and answered issue Nos.1 and 2 and though defendant contend that it is a self- - 4 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 acquired property, the same is answered against him, particularly taking note of the admission and also the evidence available on record. In paragraph No.11, the Trial Court has taken note that from the evidence of D.W.1, it s clear that Site No.9 was allotted to the father of plaintiff and defendant which was exchanged to Site No.105 and same came to be exchanged to the suit schedule property. This shows that suit schedule property is the basic towards grant of Site No.9 and also taken note that Ex.D1 is the consent on the basis of which the khatha came to be effected in the name of defendant. As per Ex.D1 dated 05.08.1991, it is seen that plaintiff and his brothers consented for change of khatha in the name of defendant pertaining to Site No.105. Ex.P2 is the resolution as per which Site No.105 was exchanged to Site No.228/17 and mutation was effected in the name of defendant vide M.R.No.5/2001-02 dated 27.03.2002. Ex.D3 is the endorsement issued by the Grama Panchayath, Suguru and particularly taking note of all these material, the Trial Court comes to the conclusion that the claim of the defendant that the same is a self-acquired property cannot be accepted. On the other hand, the Trial Court granted the relief of partition and declaration declaring that the plaintiff - 5 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 is also entitled for half share in the property. Even in paragraph Nos.18 and 19, in detail discussed that under Ex.P4, plaintiff, his father, Eshwarappa and Sathish were given share. He admitted that suit came to be decreed on the basis of the palupatti and considering all these material on record, granted the relief. 6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.15/2021. The First Appellate Court also, considering the grounds which have been urged, formulated the point whether the plaintiff proved that half share in Khaneshumari/site No.105 measuring 42 feet x 120 feet allotted to his share in jubani hissa palupatti dated 02.07.1991 and subsequently said property was got exchanged with Suguru Grama Panchayath and suit schedule property i.e., Khatha No.228/2017 measuring 42 feet x 120 feet allotted in the name of defendant and whether the defendant proves that suit schedule property is his self-acquired property. Considering the material available on record, the First Appellate Court on re-acquisition of both oral and documentary evidence answered point No.1 as ‘affirmative’ - 6 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 and the contention of the defendant that suit schedule property is his self-acquired property was not accepted, particularly in paragraph No.14, all documents were taken note of and also taken note of the fact that Ex.D1 is an unregistered document. The plaintiff has contended that Ex.D1 has been created behind his back and khatha on the basis of the said document was also created behind his back and particularly, considered the admission on the part of P.W.1 and that Ex.D1 is an unregistered document. The First Appellate Court also comes to the conclusion that material clearly disclose that during the lifetime of Basappa Patel, partition has taken place in writing on 02.07.1991. In the said partition, properties were given to plaintiff, defendant and other brothers, Sathish and Eshwarappa and all these factors were taken note of by the First Appellate Court and in paragraph No.24, considered the evidence of D.W.1 which shows that he admitted the palupatti has taken place as per Ex.P4 and in the said palupatti, Site No.9 was also shown and exchange of property was also considered by the First Appellate Court. The evidence of D.W.1 also shows that Site No.9 was exchanged for Site No.105 during the lifetime of Basappa Patel and thereafter, Site No.105 - 7 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 was exchanged for Site No.228/17 i.e., the suit schedule property and considering all these material comes to the conclusion that Trial Court has not committed any error in appreciating both oral and documentary evidence. 7. Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in granting the relief of half share in favour of the respondent and the First Appellate Court was not justified in confirming the judgment and decree passed by the Trial Court without meeting the reasons given by the First Appellate Court and also contend that scope of Section 96 is not exercised and also contend that principles enumerated under Order II Rule 2 of CPC would bar institution of a second suit and warrant rejection of the plaint filed by the plaintiff/respondent herein in O.S.No.129/2018 and both the Trial Court and the First Appellate Court have not considered the material available on record. 8. Learned counsel for the respondent would vehemently contend that no dispute with regard to relationship between the parties and also no dispute with regard to the fact - 8 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 that there was a partition. The admission was also taken note of by the Trial Court with regard to allotment of property as well as exchange of property and both oral and documentary evidence was considered by Trial Court and the First Appellate Court. 9. Having considered the submission of learned counsel for the appellant and learned counsel for the respondent, particularly pleading of the plaintiff before the Trial Court and specific pleading was made by the plaintiff that suit schedule property belongs to the plaintiff and defendant and specific averment is also made that suit schedule property is a joint family property of plaintiff and defendant. Though defendant took the specific contention that it is his self- acquired property, the Trial Court in paragraph Nos.11 and 12 taken note of the fact that Site No.9 was allotted to the father of the plaintiff and defendant which was exchanged to Site No.105 and the same was exchanged to suit schedule property and now the suit schedule property is the exchanged property and also taken note of transfer of property in favour of the defendant with consent and in terms of Ex.D1, mutation is also - 9 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 effected in the name of plaintiff in M.R.No.5/2001-02 dated 27.03.2002 and both oral and documentary evidence are considered by the Trial Court and the First Appellate Court and taken note of admission on the part of D.W.1 in the cross- examination in paragraph No.14 and in paragraph Nos.18 and 19 considered oral and documentary evidence. Even, First Appellate Court also having reassessed the material available on record, particularly in paragraph No.23 taken note of evidence that during the lifetime of Basappa Patel, partition has taken place in writing on 02.07.1991 and also taken note of the fact that document of Ex.D1 is an unregistered document and when there was an admission on the part of D.W.1 with regard to palupatti which has taken place as per Ex.P4 and in the said palupatti, Site No.9 was also shown and subsequently, it was exchanged, the same is considered by the First Appellate Court. When such finding is given by the Trial Court as well as the First Appellate Court, I do not find any perversity in the finding of the Trial Court and the First Appellate Court and question of fact and question of law are considered by both the Courts and it is not a case to invoke Section 100 of CPC. - 10 - HC-KAR NC: 2025:KHC:52322 RSA No. 1566 of 2025 10. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 57