- 1 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 06TH 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. 100440 OF 2019 (PAR/POS) C/W RFA CROSS OBJ NO. 100020 OF 2019 IN RFA NO.100440 OF 2019 BETWEEN: 1. SHIVAPPA RAMAPPA SANAGOND AGE. 59 YEARS, OCC. AGRICULTURE R/O. TELSANG, TQ. ATHANI DIST. BELAGAVI-591265 …APPELLANT (BY SRI. VITTHAL S TELI, ADV) AND: 1. NEELAKKA W/O BASAPPA ADAVI AGE. 47 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. KAKANDAKI TQ AND DIST. VIJAYAPUR-586213 2. MAHADEVI W/O SIDDAPPA ADENI AGE. 55 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. SARWAD TQ AND DIST. VIJAYAPUR-586125 3. BASAPPA RAMAPPA SANAGOND AGE. 53 YEARS, OCC. AGRICULTURE R/O. TELSAND, TQ. ATHANI DIST. BELAGAVI-591265 4. MAHADEVI W/O MALLAPPA SANAGOND Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 AGE. 49 YEARS, OCC. AGRICULTURE R/O. ADARSH NAGAR, VIJAYAPUR TQ AND DIST. VIJAYAPUR-586103 5. ANNAVVA W/O SHIDARAY SAVALAGI AGE. 59 YEARS, OCC. AGRICULTURE R/O. TELSAND, TQ. ATHANI DIST. BELAGAVI-591265 6. BASAPPA MALLAPPA SAVALAGI AGE. 82 YEARS, OCC. AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 7. YALLAPPA BASAPPA SAVALAGI AGE. 42 YEARS, OCC. AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 8. MALLAPPA BASAPPA SAVALAGI AGE. 37 YEARS, OCC. AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 9. LAXMIBAI W/O BASAPPA SAVALAGI AGE. 47 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. YADWAD, TQ. GOKAK, DIST. BELAGAVI-591136 10. BHAGAPPA NINGAPPA SIRASANGI AGE. 57 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 11. SHRISHAIL BHAGAPPA SIRASANGI AGE. 32 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 12. RAHUT BHAGAPPA SIRASANGI - 3 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 AGE. 31 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 13. LALITA W/O YALLALING TALLUR AGE. 29 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. KANNIR (KADANI), TQ. SINDAGI, DIST. VIJAYAPUR-586128 …RESPONDENTS (BY SRI. K.H BAGI, ADVOCATE FOR R1, NOTICE TO R2 TO R5, R8 & R10 TO R13 ARE SERVED, NOTICE TO R6 & R7 HELD SUFFICIENT. V/O. DATED 18.09.2024 APPEAL AGAISNT R9 IS ABATED) THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:02.08.2019 PASSED IN O.S.NO.108/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION & ETC. IN RFA CROB NO.100020 OF 2019 BETWEEN 1 . SMT. MAHADEVI W/O SIDDAPPA ADENI AGE.55 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. SARWAD, TQ. & DIST. VIJAYAPUR - 586 125 REPRESENTED BY HER general POWER OF ATTORNEY HOLDER, SHRI. VISHWANATH S/O SIDDAPPA ADENI, AGE: 35 YEARS, OCC: AGRICULTUE, R/O. SARWAD TQ. & DIST: VIJAYAPURA-586125. ...CROSS OBJECTOR (BY SRI: SHIVRAJ S BALLOLI, ADV FOR CROSS OBJECTOR) - 4 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 AND 1 . SHRI. SHIVAPPA RAMAPPA SANAGOND AGE. 59 YEARS, OCC. AGRICULTURE R/O. TELSANG, TQ. ATHANI DIST. BELAGAVI-591265. 2 . SMT. NEELAKKA W/O BASAPPA ADAVI AGE.47 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. KAKANDAKI, TQ & DIST. VIJAYAPUR-586213. 3 . SHRI. BASAPPA S/O RAMAPPA SANAGOND AGE. 53 YEARS, OCC. AGRICULTURE R/O. TELSANG, TQ. ATHANI DIST. BELAGAVI-591265 4 . SMT. MAHADEVI W/O MALLAPPA SANAGOND AGE. 49 YEARS, OCC. AGRICULTURE R/O. ADARSH NAGAR, VIJAYAPUR TQ & DIST. VIJAYAPUR-586103. 5 . SMT. ANNAVVA W/O SHIDRAY SAVALAGI AGE. 59 YEARS, OCC. AGRICULTURE R/O. TELSANG, TQ. ATHANI DIST. BELAGAVI-591265 6 . SHRI. BASAPPA S/O. MALLAPPA SAVALGI AGE. 82 YEARS, OCC.AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 7 . SHRI. YALLAPPA S/O. BASAPPA SAVALGI AGE. 42 YEARS, OCC. AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 8 . SHRI. MALLAPPA S/O. BASAPPA SAVALGI AGE. 37 YEARS, OCC. AGRICULTURE R/O. YADWAD, TQ. GOKAK DIST. BELAGAVI-591136 - 5 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 9 . SMT. LAXMIBAI W/O BASAPPA SAVALGI AGE. 47 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. YADWAD, TQ. GOKAK, DIST. BELAGAVI-591136 10. SHRI. BHAGAPPA S/O. NINGAPPA SIRASANGI AGE. 57 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 11. SHRI. SHRISHAIL S/O. BHAGAPPA SIRASANGI AGE. 32 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 12. SHRI. RAHUT S/O. BHAGAPPA SIRASANGI AGE. 31 YEARS, OCC. AGRICULTURE R/O. BALAGANUR, TQ. SINDAGI DIST. VIJAYAPUR-586128 13. SMT. LALITA W/O YALLALING TALLUR AGE. 29 YEARS, OCC. AGRICULTURE AND HOUSEHOLD WORK, R/O. KANNIR (KADANI), TQ. SINDAGI, DIST. VIJAYAPUR-586128. .. RESPONDENTS (BY SRI. VITTHAL S TELI, ADV FOR R1) THIS RFA CROSS OBJECTION IS FILED TO SET ASIDE THE JUDGMENT AND DECREE DTD:02.08.2019 PASSED IN O.S.NO.108/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI, TO MEET THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL & CROSS OBJECTOR, COMING ON FOR FINAL HEARING & ADMISSION RESPECTIVELY, 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 - 6 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This regular first appeal is filed by the appellants, challenging the judgment and preliminary decree dated 02.08.2019 passed in O.S.No.108/2012 by the learned Additional Senior Civil Judge and JMFC, Athani. Plaintiff No.2 filed the cross-objections in RFA No.100020/2019. 2. For convenience, the parties are referred to as per their ranking before the trial Court. The appellant was defendant No.1, respondent Nos.1 and 2 were the plaintiffs and other respondents were the other defendants. 3. 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 the suit schedule properties are the ancestral properties of the plaintiffs and the defendants. - 7 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 The suit schedule properties were owned by the original propositus Ramappa and after his demise, the plaintiffs and the defendants succeeded to the suit schedule properties. It is contended that, there is no partition effected between the plaintiffs and the defendants. It is contended that, the defendants tried to sell the suit schedule properties without the knowledge of the plaintiffs. Hence, they requested defendant No.1 to effect partition but defendant No.1 refused to effect the same. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement denying the averments made in the plaint. It is denied that the plaintiffs and the defendants inherited the suit schedule properties i.e. land bearing Sy.No.4/1 measuring 12 acres situated at Telsang Village, land bearing Sy.No.294 measuring 7 acres 8 guntas out of 18 acres 15 guntas situated at Telsang Village which is standing in - 8 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 the name of the deceased Mallappa Ramappa Sanagond, land bearing Sy.No.688 measuring 15 acres 19 guntas situate at Honawad village, land bearing R.S. No.687/1 situate at Honawad village which is standing in the name of Ramappa Mallappa Sanagond, property bearing VPC No.31 situated at Telsang village, property bearing VPC No.824/1 situated at Athani village including vacant site from their ancestors. It is denied that the plaintiffs and the defendants have purchased property bearing R.S. No.407 in the name of defendant No.1 out of the income derived from R.S. No.4/1, R.S. No.294 situated at Telsang village which is standing in the name of deceased Mallappa Ramappa Sanagond, R.S. Nos.688 and 687/1 situate at Honawad village, which is standing in the name of Ramappa Mallappa Sanagond. It is stated that, the father of defendant No.1 by name Ramappa Mallappa Sanagond purchased R.S. No.4/1 measuring 12 acres 1 gunta situated at Telasang village out of his own income during family settlement. The said property was allotted to the share of defendant No.1, therefore, he is the owner and in - 9 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 possession of the suit properties. Land bearing R.S. No.294 was allotted to the defendant by the name, Mallappa, R.S.No.407 measuring 15 acres 11 guntas belongs to Chidambar Kulkarni. There was an agreement dated 30.05.1990 in favour of defendant No.1 in respect of said property with a condition that the sale deed was to be executed on or before 30.01.1991. The name of the defendants’ father was amended in the sale agreement. It is contended that the plaintiffs have no right to claim partition, as there was already a partition taken place during the lifetime of the deceased Ramappa. Hence, prays to dismiss the suit. 5. Defendant No.2 filed a written statement admitting the averments made in the plaint and sought for the counter-claim in respect of the properties mentioned in para 6 of the written statement schedule properties. Hence, prays to dismiss the suit. - 10 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 6. The trial Court, based on the aforesaid pleadings, framed the following issues and additional issues : ISSUES 1) Whether the plaintiffs prove that the defendant no.1 is not ready to allot their legitimate share in the suit schedule properties? 2) Whether the defendant no.2 is entitled for counter claim? 3) Whether the plaintiffs are entitled for the reliefs as sought for? 4) What Order or Decree? Additional Issues 1) Whether the defendant No.1 proves that there was a family settlement as contended in para No.6(1) of his Written Statement? 2) Whether the defendant No.1 proves that already there was a partition in the family properties? 3) Whether the defendant No.1 proves that the land bearing Sy.No.4/3A measuring 04 acres situated at Yaragal K.D. village is his self acquired property? 7. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW-1, examined one witness as - 11 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 PW-2 and marked 9 documents as Exs.P.1 to P.9. Defendant No.2 was examined as DW-1 and defendant No.1 was examined as DW-2 and marked 5 documents as Exs.D.1 to D.5. 8. The trial Court, after recording the evidence, hearing on both sides, and on the assessment of oral and documentary evidence, answered issues No.1 to 3 in the affirmative, additional issues 1 to 3 in the negative, and issue No.4 as per the final order. The suit of the plaintiffs was decreed. It is declared that the plaintiffs are entitled to partition and separate possession of 1/8th share each in the suit schedule properties. 9. Defendant No.1 aggrieved by the judgment and preliminary decree passed by the trial Court in O.S.No.108/2012, filed this regular first appeal. 10. Heard the learned counsel for defendant No.1 and the learned counsel for the plaintiffs. - 12 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 11. Learned counsel for defendant No.1 submits that defendant No.2 has made a counter claim, in regard to the suit schedule properties enclosed to the written statement. The trial Court has not passed any judgment on the counter claim. He submits that, there was a prior partition during the life time of Ramappa on 14.12.1992. Hence, the suit filed by the plaintiffs is not maintainable. He further, submitted that, the trial Court has not properly appreciated the evidence placed on record. Hence, the impugned judgment passed by the trial Court is without application of mind. Hence, on these grounds, he prayed to allow the appeal. 12. Per contra, learned counsel for the plaintiffs supports the impugned judgment and submits that the trial Court has rightly decreed the suit of the plaintiffs and declared that the plaintiffs are entitled to partition and separate possession of 1/8th share each, in the suit schedule properties and submits no objection to allow the cross-objection. Hence, prayed to dismiss the appeal. - 13 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 13. Perused the records and considered the submissions of the learned counsel for the parties. 14. The points that arise for our consideration are: i) Whether the trial Court was justified in disposing of the suit without considering the counter claim of defendant No.1? ii) Whether defendant No.1 proves that the judgment and preliminary decree passed by the trial Court is perverse and arbitrary? and iii) What order or decree? 15. Point No.(i): It is the case of the plaintiffs that one Ramappa was the original propositus. He died leaving behind the plaintiffs, deceased Amajawwa, Annawwa, i.e., defendant No.4, deceased Nagawwa and deceased Suvarna, who are the daughters of the deceased Ramappa and Balawwa and defendant Nos.1 and 2 and deceased Mallappa are the male children of the deceased Ramappa and Balawwa. Defendant No.2 and the deceased Mallappa have no issues. Defendant no.5 is the husband of deceased Amajawwa and defendant Nos.6 to 8 are the - 14 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 children of defendant No.5 and deceased Amajawwa. Defendant No.9 is the husband of deceased Suvarna and defendant Nos.10 to 12 are the children of defendant No.9 and deceased Suvarna. Defendant No.3 is the wife of the deceased Mallappa. It is contended that the suit schedule properties are the ancestral joint family properties of the plaintiffs and the defendants. No partition was effected between the plaintiffs and the defendants. The plaintiffs requested defendant No.1 to effect a partition but defendant No.1 refused to effect a partition. The plaintiffs to prove their case, plaintiff No.1 was examined as PW.1. She reiterated the plaint averments in the examination-in- chief and marked documents Exs.P1 to P9 and also examined one witness as PW.2. Defendant No.2 was examined as DW.1 and he reiterated the written statement averments in the examination-in-chief and sought counter claim for partition and separate possession in respect of the written statement schedule properties. Defendant No.1 was examined as DW.2. He has deposed that during the lifetime of Ramappa, partition was effected. Hence, - 15 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 the suit filed by the plaintiffs is not maintainable and to support the defence of defendant No.1, the defendants have produced the documents marked as Exs.D-1 to D-5. 16. From the perusal of the written statement filed by defendant No.1 and the deposition of DW.1, it is clear that defendant No.2 has sought counter-claim in respect of the written statement schedule properties. From the perusal of the impugned judgment, there is no discussion about the counter claim filed by the defendant No.2, by the trial Court in the impugned order. The trial Court disposed of the suit without recording any finding on the counter-claim. Further, the trial Court has not appreciated the entire material placed on record by the parties. The impugned judgment passed by the trial Court is without application of mind. Though, the trial Court has answered Issue No.2 in the affirmative, but from the perusal of the judgment, there are no reasons assigned by the trial Court while answering Issue No.2 in the affirmative. Hence, this matter requires re-consideration by the trial Court. - 16 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 17. In view of the above discussion, we answer Point No.(i) in the negative. 18. Point No.(ii): From the perusal of the records, it discloses that plaintiff No.1 was examined as PW.1 and also examined one witness as PW.2 and produced 9 documents. Defendant No.2 was examined as DW.1 and defendant No.1 was examined as DW.2 and marked 5 documents. From the perusal of the entire evidence on record, the trial Court has not considered the evidence placed on record. Without considering the material placed on record, the trial Court has simply decreed the suit of the plaintiffs. The impugned judgment passed by the trial Court is without application of mind. Hence, on these grounds, the impugned judgment passed by the trial Court is arbitrary and erroneous. 19. Plaintiff No.2 filed the Cross objections, challenging the finding of the trial Court. As the impugned - 17 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 judgment itself is set aside, the question of considering cross objection would not arise. Accordingly, RFA cross-objection is disposed of. 20. In view of the above discussion, we answer Point No.(ii) in the affirmative. 21. Point No.(iii): In view of the above discussion, we proceed to pass the following: ORDER The appeal is allowed. The judgment and preliminary decree dated 02.08.2019 passed in O.S. No.108/2012 by the learned Additional Senior Civil Judge and JMFC, Athani is set aside. The suit is restored. The trial Court is directed to pass the judgment, considering the suit claim and counter claim and pass the appropriate judgment in accordance with law. The parties are directed to appear before the trial Court on 03.03.2025 without waiting for further notice. - 18 - NC: 2025:KHC-D:238-DB RFA No. 100440 of 2019 C/W RFA.CROB No. 100020 of 2019 This Court has not made any adjudication on the merits in issue. All the contentions of the parties are kept open. The Office is directed to transmit the trial court records to the trial Court. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT: BSB