- 1 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1456 OF 2013 (PAR) BETWEEN: SMT. PUTTAMMA W/O THIMMAPPA, AGED ABOUT 57 YEARS, R/O HOSAPALYA VILLAGE, KASABA HOBLI, GUBBI TALUK-572 116 TUMKUR DIST. …APPELLANT (BY SRI. M B CHANDRA CHOODA, ADVOCATE) AND: 1. SRI NARASIMHA MURTHY S/O LATE DODDAHUCHAMMA, AGED ABOUT 47 YEARS, 2. SRI RAMAIAH S/O LATE DODDAHUCHAMMA, AGED ABOUT 42 YEARS RESPONDENTS 1 & 2 ARE R/O NAGASANDRA VILLAGE, K.G. TEMPLE POST, KASABA HOBLI, GUBBI TALUK-572 116 TUMKUR DISTRICT. 3. SRI ANDANAPPA S/O BOREGOWDA, Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 AGED ABOUT 82 YEARS, R/O HONNASHETTIHALLI, KADABA HOBLI, GUBBI TALUK-572 116 TUMKUR DIST. 4. SMT SYED UNNISSA W/O MOHAMMED INAYATHULLA, AGED ABOUT 67 YEARS, R/AT NO. 932, BEHIND BASAVESHWARA HIGH SCHOOL, HEGGARE, KASABA HOBLI-572 116 TUMKUR DIST. …RESPONDENTS (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R4 R1 SERVED SERVICE OF R2 H/S, VIDE ORDER DATED 21.09.2023 APPEAL ABATED AGAINST R3 V/O DATED 21.09.2023) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.5.2013 PASSED IN R.A.NO.38/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.7.2010 PASSED IN O.S.NO.219/2006 ON THE FILE OF THE CIVIL JUDGE, GUBBI. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular second appeal is filed by the appellant challenging the judgment and decree dated 30.05.2013, - 3 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 passed in R.A.No.38/2010 by the learned Senior Civil Judge, Gubbi. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff, and the respondents were the defendants. 3. Brief facts leading to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that late Sanjeevaiah and late Smt. Lakshmidevamma had four children by name Gangamma, Chikkahanumakka, Doddahutchama and Lakshmamma. The plaintiff is the daughter of Chikkahanumakka, defendant Nos.2 and 3 are the children of Doddahutchamma, and defendant No.4 is the husband of Lakshmamma. Smt. Gangamma, who was arrayed as defendant No.1 in the suit, died during the pendency of the suit, and she had no issues. Further, the other - 4 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 children of Sanjeevaiah also died, leaving behind their legal representatives as mentioned above. It is contended that the land bearing Sy.No.32/2 measuring 3.00 acres situated at Kallipalya village, Gubbi Taluk, Tumkur District, was the property that belonged to her grandmother Smt. Lakshmidevamma, there was no partition or division of the said property. Smt. Lakshmidevamma died intestate. It is further contended that, the four daughters of Lakshmidevamma have succeeded to the properties left by Lakshmidevamma, and there is no male issue born to late Sanjeevaiah and Lakshmidevamma. 3.1. It is contended that the plaintiff and defendant Nos . 1 to 4 have succeeded to the property from their parents, and they are in joint possession and enjoyment of the suit schedule property. It is stated that defendant No.1, without the consent of the co-sharers, sold the suit property to defendant No.5. Therefore, the plaintiff demanded partition and separate possession, but the defendants refused to effect partition. Hence, a cause of - 5 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.2. Defendant Nos.2 and 4 did not file a written statement. Defendant Nos.1 and 3 placed exparte. Defendant No.5 filed a written statement denying the averments made in the plaint and pleaded that she has purchased the portion of suit property measuring 2 acres 5 guntas i.e., in Sy.No.32/2, under the registered sale deed dated 28.01.1980, executed by defendant No.1, and there was a prior partition among defendant No.1 and the children of late Sanjeevaiah and Lakshmidevamma and said portion of the suit property fell to the share of defendant No.1 and her younger brother, Thimmappa and they were in possession and enjoyment of the same. It is contended that because of the family necessity, he sold the suit property in favour of defendant No.5. Hence, defendant No.5 became the absolute owner by the registered sale deed dated 28.01.1980. It is contended - 6 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 that the plaintiff is not entitled to share in the suit schedule property. Hence, prays to dismiss the suit against defendant No.5. 3.3. The trial Court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiff proves that suit property is self-acquired property of deceased Lakshmidevamma? 2) Whether the plaintiff proves that said Lakshmidevamma died intestate? 3) Whether the plaintiff proves that suit property is succeeded by plaintiff and defendant Nos.1 to 4 after the death of Lakshmidevamma? 4) Whether the plaintiff proves that she is entitled for 1/4th share in the suit property? 5) What order or decree? 3.4. The plaintiff, to substantiate her case examined herself as PW.1 and marked 2 documents as Exs.P1 and P2. In rebuttal, defendant No.5 examined as DW.1 and marked 24 documents as Exs.D1 to D24. The trial Court, after assessing the verbal and documentary evidence - 7 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 answered issue Nos.1 and 4 in the affirmative, issue Nos.2 and 3 does not survive for consideration, issue No.5 as per the final order. The plaintiff’s suit was decreed as prayed for. The trial Court ordered and decreed that the plaintiff is entitled for 1/4th share in the suit property. 3.5. Defendant No.5, aggrieved by the judgment and decree passed in O.S.No.219/2006, preferred an appeal in R.A.No.38/2010 on the file of learned Senior Civil Judge, Gubbi. 3.6. The first Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1) Whether the judgment and decree of the lower Court requires interference at the hands of this Court? 2) What order? 3.7. The first Appellate Court, after reassessing the entire evidence on record, answered point No.1 in the negative, point No.2 as per the final order. The appeal - 8 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 was allowed. The judgment and decree passed by the trial Court was set aside and consequently, the suit of the plaintiff was dismissed vide judgment dated 30.05.2013. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.38/2010, filed this Regular Second Appeal. 4. Heard the arguments of Sri. M.B. Chandra chooda, the learned counsel for the plaintiff and Sri. V.B.Siddaramaiah, learned counsel for the defendants. 5. Learned counsel for the plaintiff submits that the first Appellate Court committed an error in placing a burden of proof regarding the prior partition, on the plaintiff. He submits that when defendant No.5 has set up a plea of prior partition, the burden is on defendant No.5 to establish the prior partition. He submits that defendant No.5 has not produced any records to establish that there was a prior partition. The first Appellate Court, without properly re-appreciating the entire evidence on record, has - 9 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 committed an error in reversing the judgment and decree passed by the trial Court. Hence, on these grounds, he submits that the impugned judgment passed by the first Appellate Court is perverse, arbitrary and erroneous. Hence, prays to allow the appeal. 6. Per contra, learned counsel for the defendants submits that there was a prior partition between the parties to the suit and in the said partition, the suit schedule property fell to the share of defendant No.1 and defendant No.1 sold the suit schedule property in favour of defendant No.5 under a registered sale deed dated 28.01.1980 and the present suit is filed in 2006. He submits that the plaintiff was aware of the registered sale deed executed by defendant No.1 in favour of defendant No.5. The plaintiff did not challenge the registered sale deed within 3 years from the date of execution of the registered sale deed. Hence he submits that the suit filed by the plaintiff is barred by limitation. He also submits that PW.1, during the cross-examination, has admitted - 10 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 regarding the partition as pleaded by defendant No.5 in para 6(a) of the written statement. He submits that the fact admitted need not be proved as per Section 58 of the Indian Evidence Act. He submits that as on the date of filing the suit, the suit schedule property was not a joint family property of the plaintiff and the defendants. Hence, the suit filed by the plaintiff is not maintainable. He submits that the judgment and decree passed by the first Appellate Court is just and proper and do not require any interference by this Court. Accordingly, prays to dismiss the appeal. 7. This Court vide order dated 24.06.2014, admitted the appeal to consider the following substantial questions of law. 1) In a suit for partition, the defendants had urged, there was earlier partition between the parties, was not the burden on the defendants? 2) Whether the first Appellate Court is right in shifting the burden on the plaintiff as there - 11 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 was no partition as averred by the defendants? 3) Is the judgment of the appellate Court sustainable in the absence of assigning legally acceptable reasons for reversing the findings of the trial Court? 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. REG. SUBSTANTIAL QUESTIONS OF LAW NOS.1 AND 2: Substantial questions of law 1 and 2 are interlinked and they are discussed together to avoid repetition of facts. It is the case of the plaintiff that the plaintiff and defendant Nos.1 to 4 are the members of a Hindu joint family, and the suit schedule property is the self-acquired property of the deceased Lakshmidevamma, and after her demise, the plaintiff and defendant Nos . 1 to 4 have succeeded to the suit schedule property. There is no - 12 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 partition effected between the plaintiff and defendant Nos.1 to 4. The plaintiff recently came to know that defendant No.1 has sold 2 acres 5 guntas of the suit schedule property in favour of defendant No.5 without the consent of the co-sharers. The said alienation is not binding on the plaintiff. Defendant No.5 is attempting to alienate the suit schedule property. 10. The plaintiff, to prove that the suit schedule property was belonging to Lakshmidevamma, examined herself as PW.1 and has produced the documents. Ex.P1 is the copy of the genealogical tree of the family of the plaintiff and defendant Nos.1 to 4, Ex.P2 is the copy of the RTC extract of land bearing Sy.No.32/2A which stood in the name of late Lakshmidevamma and defendant No.5. 11. During the cross-examination of PW.1, PW.1 has clearly admitted regarding the prior partition and further admitted that her brothers, sisters and herself have partitioned the family property and separately - 13 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 cultivating their shares, and she has indirectly admitted that she had brothers and also the genealogical tree, which does not reflect the true picture of the parents' family. 12. On the other hand, defendant No.5 was examined as DW.1. She denied the averments made in the plaint and contended that there was a partition effected between the plaintiff and defendant Nos.1 to 4 and in the said partition, portion of the suit schedule property to the extent of 2.05 acres fell to the share of defendant No.1 and defendant No.1 sold the portion of suit schedule property in favour of defendant No.5 in the year 1980. Based on the registered sale deed dated 28.01.1980, the name of defendant No.5 is entered in the revenue records and defendant No.5 is in possession and enjoyment of the suit schedule property. To prove that there was a partition between the plaintiff and defendant Nos.1 to 4, defendant No.5 produced the documents, Exs.D1 to D24. During the cross-examination of DW.1, it - 14 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 is suggested that there was no partition as alleged by defendant No.5 in the written statement. The said suggestion was denied by DW.1. 13. From the perusal of the entire evidence on record, defendant No.5 has taken a specific defense in the written statement regarding the prior partition between the parties. The said defense of defendant No.5 was admitted by PW.1. The facts admitted need not be proved as per Section 58 of the Evidence Act. In view of the admission of PW.1, the defendant has proved there was an earlier partition between the plaintiff and defendant Nos.1 to 4 and the first Appellate Court has rightly held that there was a prior partition between the plaintiff and defendant Nos.1 to 4 and rightly dismissed the suit holding that the plaintiff has failed to prove that the suit schedule property was the joint family property as on the date of the filing of suit. - 15 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 14. The first Appellate Court has recorded a finding, for placing a burden of proof regarding prior partition, on the plaintiff. When defendant No.5 has taken a defense regarding the prior partition, the burden is on defendant No.5 to prove the prior partition. Although the first Appellate Court placed the burden of proof on the plaintiff, it has recorded a finding that there was a prior partition. The first Appellate Court has committed an error in placing a burden of proof on the plaintiff. As observed above, the burden is on the defendant No.5 to prove the prior partition and in view of the admission of PW.1 in the course of cross-examination regarding prior partition. Defendant No.5 proved the prior partition. 15. When both parties have led the evidence, there is no question of shifting the burden on the other side. The first Appellate Court has rightly passed the impugned judgment. Further, defendant No.5 has specifically pleaded in para-6(a) of the written statement regarding the prior - 16 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 partition. In view of the above discussion, I answer the substantial questions of law Nos. 1 and 2 in the negative. 16. REG. SUBSTANTIAL QUESTION OF LAW NO.3: The first Appellate Court, considering the entire evidence on record, assigned the reasons and held that the judgment and decree passed by the trial Court required interference at the hands of the first Appellate Court and thus rightly reversed the findings of the trial Court. I do not find any error in the impugned judgment. In view of the above discussion, I answer the substantial question of law No.3 in the affirmative. 17. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgment and decree dated 30.05.2013 passed in R.A.No.38/2010 on the file of the learned Senior Civil Judge, Gubbi, is hereby confirmed. - 17 - HC-KAR NC: 2025:KHC:25167 RSA No. 1456 of 2013 iii. No order as to the costs. In view of the dismissal of the appeal, pending IAs, if any, do not survive for consideration and accordingly, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SKS CT:KHV