- 1 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1249 OF 2017 (INJ) BETWEEN: 1. SMT. NEELARATHNA D/O LATE MUTHUSWAMY, W/O ADINARAYANAIAH, AGED ABOUT 80 YEARS, R/AT NO.699 & 700, 3RD DIVISION, CHAMARAJPETE, CHICKBALLAPUR-562101. 2. SRI. K.N. ADINARAYANAIAH S/O NARASIMAHAIH, AGED ABOUT 89 YEARS, R/AT NO.699 & 700, 3RD DIVISION, CMAMARAJPET, CHICKBALLAPUR-562101. 3. SRI. MUTHUSWAMY MEMORIAL EDUCATION TRUST REPRESENTED BY ITS CHAIRMAN, K.N. ADINARAYANAIAH, CHIKKABALLAPUR-562101. …APPELLANTS (BY SMT. RADHIKA K., ADVOCATE FOR SRI. N. THIMME GOWDA, ADVOCATE) AND: 1. SMT. SUSHEELA D/O LATE MUTUSWAMY, W/O MUNIVENKATAPPA, AGED ABOUT 61 YEARS, R/AT NO.146, 16TH WARD, Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 JAIBHEEMANAGAR, A.K.COLONY ANEKAL TOWN, BANGALORE DISTRICT - 562106. …RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGEMENT AND DECREE DATED 09.03.2017 PASSED IN R.A.NO.178/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 17.09.2016 PASSED IN O.S.NO.563/2011 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., CHICKBALLAPUR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendants assailing the Judgment and Decree dated 09.03.2017 in R.A.No.178/2016, on the file of Addl. Senior Civil Judge and JMFC at Chickballapur, dismissing the appeal and confirming the Judgment and Decree dated 17.09.2016 in O.S.No.563/2011 - 3 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 on the file of II Addl. Civil Judge and JMFC, Chickballapur, decreeing the suit of the plaintiff. 2. The relevant facts for adjudication of this appeal are as follows: It is the case of the plaintiff, that plaintiff and defendant No.1 are daughters of one Muthuswamy. The plaintiff and defendant No.1 had acquired the property in question through the registered partition deed, on 16.02.1979, and thereafter the revenue records stand in the name of defendant No.1 with a condition that defendant No.1 shall allot half portion of the suit schedule property in favour of the plaintiff. It is also stated in the plaint that, the plaintiff has made a claim for half share in the suit property and same was rejected by the defendants. Hence, plaintiff has filed O.S.No.563/2011 before the Trial Court, seeking allotment of half share in the suit schedule property. 3. After service of notice, the defendants entered appearance and denied the averments made in the plaint. It is the case of the defendants that the defendants are in exclusive possession of the suit schedule property and therefore, the - 4 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 claim made by the plaintiff cannot be accepted and accordingly, defendant No.1 sought for dismissal of the suit. During the pendency of the suit, plaintiff has impleaded defendant Nos.2 and 3 and defendant Nos.2 and 3 have entered appearance and contested the matter on merits by filing written statement. Defendant Nos.2 and 3 contended that, defendant No.2 is running an aided institution since very long period in the suit schedule property and therefore, they are in exclusive possession and accordingly, sought for dismissal of the suit. 4. The Trial Court, based on the pleadings on record has formulated issues and additional issues for its consideration. In order to establish her case, plaintiff has examined herself as P.W.1 and produced 16 documents which were marked as Exs.P1 to P16. Defendants got themselves examined as D.W.1 and D.W.2 and further, three more witnesses were examined as D.W.3 to D.W.5, and produced 5 documents which were got marked as Exs.D1 to D5. The Trial Court, after considering the material on record, by its Judgment and Decree dated 17.09.2016, decreed the suit and directed the defendants to deliver half share of the suit schedule property in favour of - 5 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 plaintiff. Feeling aggrieved by the same, the defendants have filed R.A.No.178/2016 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court after considering the material on record, by its Judgment and Decree dated 09.03.2017, dismissed the appeal and consequently confirmed the Judgment and Decree in O.S.No.563/2011. Feeling aggrieved by the same, defendants have preferred this Regular Second Appeal. 5. Smt. Radhika K., learned counsel for the appellants/defendants contended that, both the Courts below have not properly appreciated the Ex.P2 and misconstrued the said document as partition deed between the plaintiff and defendants and therefore, the finding recorded by Courts below requires interference of this Court. 6. In the light of the submissions made by the learned counsel for the appellants, on careful examination of the finding recorded by the Courts below would indicate that the plaintiff and defendant No.1 had acquired the suit schedule property as per the partition deed dated 16.02.1979. Indisputably the suit schedule property was belonging to the grandfather of plaintiff - 6 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 and defendant No.1 as he had purchased the same as per the registered Sale Deed dated 03.07.1938. Perusal of Ex.P2 would indicate that both the plaintiff and defendant No.1 have equal share in respect of the suit schedule property. In that view of the matter, taking into consideration the finding recorded by the Trial Court with regard to issue Nos.1 and 2, I am of the view that, plaintiff has proved her title in respect of the suit schedule property. In that view of the matter, taking into consideration the finding recorded by the Trial Court which makes it clear that plaintiff is having half share in the suit schedule property as per the partition deed dated 16.02.1979, the Trial Court has properly appreciated the material on record and arrived at the conclusion that the plaintiff is entitled for half share in the suit schedule property. The First Appellate Court after re-appreciating the material on record has considered the documents on record and rightly arrived at the conclusion that the plaintiff has rightly filed the suit seeking for mandatory injunction in respect of the half share in the suit schedule property and as such, the Courts below have rightly held that the plaintiff is entitled for half share in the suit schedule property. - 7 - HC-KAR NC: 2025:KHC:32331 RSA No. 1249 of 2017 7. In that view of the matter, this Court is of the view that, there is no perversity in the Judgment and Decree passed by the Courts below. Taking into consideration the factual aspects on record, as the appellants herein have not made out a case for formation of substantial question of law as required under Section 100 of CPC, the appeal is dismissed at the admission stage itself. 8. Consequently, I.A.1/2017 for stay, does not survive for consideration. SD/- (E.S.INDIRESH) JUDGE sac List No.: 1 Sl No.: 37