- 1 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100190 OF 2021 (PAR/POS) BETWEEN: SMT. SUSHILAMMA W/O MOUNESHAPPA GOGGAD D/O LATE SIDDAPPA BANAKAR AGE. 62 YEARS, OCC. HOUSE WIFE, R/O. BETAKERUR-581111 TQ. HIREKERUR, DIST. HAVERI. …APPELLANT (BY SRI. ANIL KALE, ADV) AND: 1. SRI. SHIVAPUATRAPPA S/O LATE SIDDAPPA BANAKAR AGE. 65 YEARS, OCC. AGRICULTURIST, R/O. YOGIKOPPA-581111 TQ. HIREKERUR, DIST. HAVERI. 2. SMT. HALAMMA W/O SHIVALINGAPPA GOUDAR D/O LATE SIDDAPPA BANAKAR AGE. 61 YEARS, OCC. HOUSE WIFE, R/O. YOGIKOPPA-581111 TQ. HIREKERUR, DIST. HAVERI. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:04:41 +0530 - 2 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 3. SRI. NAGARAJ S/O SHIVAPUTRAPPA BANAKAR AGE. 40 YEARS, OCC. AGRICULTURIST, R/O. YOGIKOPPA-581111 TQ. HIREKERUR, DIST. HAVERI. 4. SRI. SHANKARLINGA S/O SHIVAPUTRAPPA BANAKAR AGE. 38 YEARS, OCC. AGRICULTURIST, R/O. YOGIKOPPA-581111 TQ. HIREKERUR, DIST. HAVERI. …RESPONDENTS (BY SRI. AVINASH BANAKAR, ADV FOR R1 TO R4) THIS RFA IS FILED UNDER SEC. 96 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DTD 02.02.2021 PASSED IN O.S.NO.10/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HIREKERUR, DECREEING THE SUIT FILED FOR PARTITION 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:3681-DB RFA No. 100190 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is plaintiff’s appeal against the judgment and decree dated 02.02.2021 passed in O.S.No.10/2019 by the learned Senior Civil Judge and JMFC, Hirekerur. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. 3. Brief facts of the case are that; one Rudrappa Banakar was the propositus of the family. He died on 28.12.1944, leaving behind his sons by name Holabasappa and Siddappa. The said Siddappa had three children by name, Shivaputrappa (defendant No.1), Sushilamma (plaintiff) and Halamma (defendant No.1). The said Shivaputrappa had two sons by name, Nagaraj and Shivalinga. 4. The suit schedule properties were originally belongs to Rudrappa. After his death, his sons partitioned the said properties on 20.06.1960. After the death of Siddappa, defendant No.1 succeeded to the properties - 4 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 held by Siddappa, and he got mutated the revenue records in his name in M.R.No.737. After the death of Holebasappa and Siddappa, legal heirs of both the deceased had partitioned the properties belonging to the joint family on 05.02.1993 and separate kathas were mutated in the name of legal heirs of both Holebasappa and Siddappa. Plaint ‘A’ schedule properties were succeeded by defendant No.1 as one of the legal heirs of Siddappa. Since he was the only elder male member of the family, his name was mutated in the revenue records. The defendants without the knowledge and consent of the plaintiff, partitioned ‘A’ schedule properties dated 03.09.1993. Accordingly, revenue records were mutated in M.E.Nos.1134 and 1180. 5. The plaintiff repeatedly requested defendant No.1 for effecting partition and allot her share. Defendant No.1 went on postponing to effect the partition. Therefore, the plaintiff was constrained to file the suit. - 5 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 6. Defendants admit the genealogy. They also more or less admit that suit properties were succeeded by defendant No.1 as a son of the deceased Siddappa. He further contends that the plaintiff did not include all the joint family properties in the present suit. The properties mentioned in M.R.No.588 bearing Sy.Nos.27/2B, 74/1A, 49/1 and 67/4 are also joint family properties. Without including the same, the suit is bad for non-inclusion of all the joint family properties. 7. The suit is hopelessly barred by limitation. According to the plaintiff, her father died during the year 1969 and she filed a suit during the year 2019, after lapse of nearly 50 years. Therefore, the suit is hopelessly barred by time. From her own pleadings, she admitted that she has been ousted from the suit property from the year 1969. He further contends that the suit is not properly valued and court fee paid thereon is not sufficient. The plaintiff knew very well regarding partition of the suit properties between the defendants as per the partition of - 6 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 the year 1993. The plaintiff never challenged the mutation entry passed against defendant Nos.1 and 2. Hence, the plaintiff cannot file a suit for partition. With these reasons, he prayed to dismiss the suit. 8. From the rival contentions of the parties, the trial court framed the following issues. 1) Whether the plaintiff proves that, she and the defendants are the joint family members and the suit schedule properties are ancestral and joint family properties of both herself and the defendants and she is in joint possession of the same along with the defendants? 2) Whether the suit is barred by law of limitation? 3) Whether this Court is having pecuniary jurisdiction to try the suit? 4) Whether the suit is bad for non joinder of other properties? - 7 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 5) Whether the plaintiff is entitle for share as sought for? 6) What order or decree? 9. The plaintiff to prove her case, examined herself as P.W.1 and got marked Exs.P1 to P32. 10. The defendants on their behalf examined D.Ws.1 to 5 and got marked Exs.D1 to D37. 11. The learned trial Judge after hearing the arguments of both sides and appreciating the evidence on record, answered issue No.1 partly in the affirmative, issue Nos.2 to 4 in the affirmative and issue No.5 in the negative and dismissed the suit with costs by the impugned judgment and the decree. The same is challenged by the appellant on the grounds mentioned in the appeal memo. 12. We have heard the arguments of the learned counsel appearing for both the sides. - 8 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 13. Learned counsel for the appellant submits that the genealogy of the family and the suit properties were inherited by the children of Siddappa are not in dispute. According to the contentions of the defendants, there is an earlier partition of the year 1993, but the plaintiff was not a party in the said partition. Therefore, it does not bind the rights of the plaintiff. He further submitted that the trial court answered issue No.1 partly in the affirmative in favour of the appellant, and that is not challenged by the defendants. The trial court dismissed the suit mainly on the ground of non-inclusion of all the joint family properties and on the ground of limitation. The plaintiff is not well educated and had no knowledge of law. Therefore, merely she has given certain statement about the knowledge of the partition of the year 1993 and she demanded a share during the year 1994 cannot be a ground to hold that the suit is barred by time. He further submits that the rejection of the prayer of the plaintiff for partition on the ground of non-inclusion of all the joint - 9 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 family properties is also not tenable. Therefore, he prays to allow the appeal. 14. Learned counsel for the respondents submits that, in the cross-examination of P.W.1, she has stated that she had knowledge about the earlier partition of the year 1993 and she also admitted that, at the last time she demanded for partition during the year 1994. The said evidence is extracted by the trial court in the impugned judgment. From the year 1994, till filing of the suit during the year 2019, at no point of time she filed a suit for partition. The said fact clearly shows that the suit is barred by time. The learned trial Judge has considered these facts and has rightly dismissed the suit, and it does not call for any interference by this court. Accordingly, he prays to dismiss the appeal. 15. The following points emerges for our determination; - 10 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 1) Whether the learned trial Judge erred in holding that the suit is barred by time? 2) Whether the learned trial Judge is justified in dismissing the suit for not including all the joint family properties? 3) Whether the finding of the learned trial Judge calls for interference by this court? 16. The genealogy of the family is not in dispute. P.W.1 in her evidence has stated the facts of the case pleaded in the plaint. She has stated that partition between Siddappa and his brother and the suit properties were fallen to the share of Siddappa. P.W.1 further stated that after his death, the plaintiff and the defendants being his legal heirs succeeded to the said properties. She has produced the mutation extract at Exs.P1 to P6. These records disclose that there was a partition in the family of Siddappa and his ancestors and in the said partition, Siddappa succeeded to the suit properties. The genealogy - 11 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 of the family is at Ex.P8 and it is not in dispute. RTC of the suit properties are produced at Exs.P9 to P25. The assessment list of the house properties are produced at Exs.P26 to P31. All these properties are standing in the name of defendant No.1. The oral evidence of P.W.1 is corroborated by the above said documents. In Ex.P2, certain suit schedule properties were jointly allotted to the share of Holebasappa and Siddappa by the partition dated 20.06.1960. Ex.P3 indicates that, after the death of Siddappa, the suit schedule properties were mutated in the name of defendant No.1. Ex.P4 is M.E.No.1176 dated 05.02.1993 and according to the same, the properties were divided between the defendants and no share was allotted to the plaintiff in the said partition. This fact is also not in dispute. According to the contentions of the defendants, the plaintiff had the knowledge about the said partition. Unless the plaintiff expressly given up her right over the suit properties or execute a relinquishment deed, her rights over the suit properties remains till partition. Revenue records were mutated on the basis of a varadi - 12 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 given by the defendants, cannot be a ground to hold that plaintiff has lost the share in the suit properties. 17. Defendant No.1 was examined as D.W.1. In his evidence, he got marked documents at Ex.D1 to D37. In his cross-examination, he admits that, after the death of his father during the year 1969, all the 12 suit schedule properties were mutated in his name. He also stated that at the time of death of his father, his sisters Sushilamma and Halamma were minors. He also admitted that on 05.02.1993, he and children of Holebasappa effected partition. However he denied the suggestion that the plaintiff was not called at the time of said partition. He also admits that in Ex.P6, the presence of his sisters is not mentioned therein. He denied the suggestion that only to deny the share of other members in the properties, he transferred the properties in the name of his children. He admits that all the suit schedule properties were ancestral properties. He further stated that he sold Sy.No.27 in the name of one Veerabhadrappa. He denied the suggestion - 13 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 that Sy.No.27 was sold for his personal purpose and not for performing the marriage of the plaintiff. 18. Defendants examined D.W.2, who is said to be present at the time of partition. In his evidence, he has supported the evidence of D.W.1 regarding earlier partition. He denied the suggestion of the plaintiff that plaintiff was not present at the time of the said partition and the signature of the plaintiff was also not taken during the said partition. 19. To prove the earlier partition and also to prove that Sy.No.27/3 was sold for the purpose of performing the marriage of the plaintiff, D.Ws.3 and 4 were examined. In the cross-examination, the said evidence of D.Ws.3 and 4 were denied by the plaintiff. The defendants also produced the mutation entries as well as RTC’s of the suit schedule properties. 20. As stated in the evidence of both P.W.1 and D.W.1, admittedly, the suit schedule properties were - 14 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 ancestral joint family properties. Though D.W.1 and 2 in their evidence have stated that the plaintiff was present at the time of partition, but there are no materials on record to show that she was present at the time of partition and consented for partition. It is true that, in the cross- examination, she admitted that last time she demanded for partition during the year 1994 and later on she did not demand for partition. Prior to the said sentence, she has also stated that during the year 1993, she demanded for partition and she was assured that defendants would give a share to her. Merely she has not demanded partition subsequent to 1994, cannot be a ground to hold that the suit is barred by time. It is a stray sentence stated by P.W.1. There is no specific article in the Limitation Act in this regard. It is a recurring cause of action to claim for partition. Normally, partition is sought from siblings. Merely a member of family seeks for partition does not mean that cause of action commences from that day to calculate period of limitation. Therefore, the learned trial Judge erred in holding that the suit is - 15 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 barred by law of limitation. The said finding needs to be interfered by this court. 21. Learned counsel for the defendants vehemently contends that all the joint family properties are not included in the suit. Even after framing an issue, the plaintiff has not amended the plaint and included the alleged joint family properties. According to the defendants, Sy.No.27/2B, 74/1A, 49/1 and 67/4 are joint family properties mentioned in M.E.No.588. The said defect in the plaint can be rectified by directing the appellant/plaintiff to include the said properties, so that all the joint family properties would be divided between the parties. The contention of the learned counsel for the appellant that plaintiff is a female heir and residing in her husband’s house. She was unable to get the documents to prove these properties are joint family properties. Hence, she did not instruct in this regard to her advocate. Because of that, she cannot be denied her right to claim properties. The said submission is acceptable. On the basis - 16 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 of technical reasons she cannot be denied her right to share joint family properties. Learned counsel for the plaintiff submits that if the suit is remanded to the trial court, plaintiff would amend the plaint and produce necessary documents also lead evidence in this regard. Considering the said facts, we are of the opinion that the matter needs to be remanded to the trial court with a direction to permit the appellant/plaintiff to include all the joint family properties. Thereafter, both the parties be permitted to lead their evidence. Considering the contentions of the parties, the trial court shall decide the matter, in accordance with law. For the aforesaid discussions, we answer point Nos.1 and 2 in the affirmative. 22. In view of the reasons stated above, interference in the finding of the trial court is required. The trial court shall permit the appellant/plaintiff to include all the joint family properties, thereafter considering the evidence available on record in respect of those properties, - 17 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 decide the matter afresh without influenced by the observations made in this judgment. Accordingly, point No.3 is answered in the affirmative. 23. For the reasons discussed above, we proceed to pass the following: ORDER i) The appeal is allowed. No costs. ii) The impugned judgment and decree dated 02.02.2021 passed in O.S.No.10/2019 by the learned Senior Civil Judge and JMFC, Hirekerur is set aside. iii) The matter is remanded back to the trial court to reconsider the matter afresh. iv) The trial court shall permit the appellant/plaintiff to include all the joint family properties which are said to be left over. Thereafter, permit both the parties to lead additional evidence and dispose of the matter, in accordance with law. - 18 - NC: 2025:KHC-D:3681-DB RFA No. 100190 of 2021 v) We have not decided the suit on merits. Therefore, all the contentions of the parties are kept open to be considered by the trial court. vi) To avoid delay in appearance of the parties before the trial court, both the parties are directed to appear before the trial court on 04.04.2025, without waiting for the notice from the trial court. vii) Registry is directed to send back the records to the trial court along with copy of this judgment. viii) Draw decree accordingly. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 5