- 1 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1244 OF 2023 BETWEEN: SRI OBALAPPA S/O LATE OBANNA, SINCE DEAD BY HIS LRS, 1. SMT NINGAMMA, W/O LATE OBALAPPA, AGED ABOUT 80 YEARS, R/AT KURKI VILLAGE, ANAGODU HOBLI, DAVANAGERE DISTRICT - 577 001. 2. SMT SHARADAMMA W/O N BALARAJ, AGED ABOUT 64 YEARS, R/AT A-6B JAYASHREE CIRCLE, 1ST CROSS, NEW TOWN, BHADRAVATHI, SHIMOGGA DISTRICT - 577 205. 3. SRI LOKESH S/O LATE OBALAPPA, AGED ABOUT 53 YEARS, R/AT KURKI VILLAGE, DAVANAGERE DISTRICT - 577 001. 4. SRI VIJAY S/O LATE OBALAPPA, AGED ABOUT 50 YEARS, R/AT KURKI VILLAGE, ANAGODU VILLAGE, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 DAVANAGERE DISTRICT - 577 001. 5. SMT. VIMALAKSHI W/O LATE JAYAPPA, AGED ABOUT 42 YEARS, R/AT KODIGERE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 001 PRAKSH S/O LATE OBALAPPA SINCE DEAD BY HIS LRS 6. SMT. OBALAMMA W/O LATE PRAKASH, AGED ABOUT 45 YEARS, R/AT KURKI VILLAGE, ANAGODU HOBLI, DAVANAGERE DISTRICT - 577 001. 7. ABHILASHA D/O LATE PRAKASH, AGED ABOUT 25 YEARS, STUDENT, R/AT KURKI VILLAGE, ANAGODU HOBLI, DAVANAGERE DISTRICT - 577 001. 8. ANU D/O LATE PRAKASH, AGED ABOUT 20 YEARS, STUDENT, R/AT KURKI VILLAGE, ANAGODU HOBLI, DAVANAGERE DISTRICT - 577 001. …APPELLANTS (BY SRI. H.P. LEELADHAR, ADVOCATE) - 3 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 AND: 1. HARISH S/O LATE RANGAPPA, AGED ABOUT 38 YEARS, R/AT AREHALLI VILLAGE, CHANANGIRI TALUK, DAVANAGERE DISTRICT - 577 001. SRI. DODDAPPA S/O LATE RANGAPPA, SINCE DEAD BY HIS LRS, ALREADY ON RECORD AS A RESONDENT NO.1 SRI. HARISH AS HIS CLLASS II LEGAL HEIR. 2. SMT CHANDRAMMA, D/O LATE RANGAPPA, AGED ABOUT 48 YEARS, R/AT BELALAGERE VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 001. 3. SMT. NEELAMMA D/O LATE RANGAPPA, AGED ABOUT 40 YEARS, R/AT KYASAPURA VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 001. …RESPONDENTS (BY SMT. SARITHA KULKARNI, ADVOCATE FOR C/R1; SMT. ARCHANA MURTHY P, ADVOCATE FOR R2; R3 IS SRVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.04.2023 PASSED IN RA.NO. 98/2018 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING AND MODIFYING THE APPEAL AND PARTLY CONFIRMING AND MODIFIED THE JUDGMENT AND DECREE - 4 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 DATED 06.07.2018 PASSED IN O.S.NO.45/2017 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, AND JMFC, DAVANAGERE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.H.P.Leeladhar, learned counsel for the appellants, Smt.Saritha Kulkarni, learned counsel for the respondent No.1 and Smt.Archana Murthy P., learned counsel for respondent No.2. 2. Legal representatives of the deceased sole defendant are the appellants challenging the decreeing the suit of the plaintiff for declaration and partition in O.S.No.45/2017 which was confirmed by the First Appellate Court in RA No.98/2018. 3. Facts which are utmost necessary for disposal of the present appeal are as under: 3.1. A suit for declaration and partition came to be filed by the plaintiffs against the defendant – Oblappa by - 5 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 contending that plaintiffs are the sons of Rangappa. Said Rangappa is no more and plaintiff No.2 died issueless and unmarried. Father of the plaintiffs was the brother of the defendant and he was the elder male member in the joint family of the plaintiffs and defendant. 3.2. Suit properties were allotted to the defendant at a family partition. Hence the suit properties are the joint family properties and both plaintiffs and defendant cultivated the suit properties jointly. 3.3. After the death of the father of the plaintiffs, defendant and his sons threatened the plaintiffs to cultivate the land jointly. Therefore, the cause of action to file the suit for declaration and possession arose in the year 2016. 4. On receipt of the suit summons, defendant entered appearance through his Advocate and filed written statement denying the plaint averments in toto except - 6 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 admitting the relationship that the plaintiffs are the sons of his brother Rangappa. 5. It is also admitted by the defendant that the suit properties are the ancestral properties. 6. It is his specific case that there was a partition and as per Ex.D.1, properties have been allotted to him and therefore, the plaintiffs are not entitled for any share in respect of the suit properties. 7. It is also contended by the defendant that prior to filing of the present suit, a suit in O.S.No.39/2009 was filed by the plaintiffs which came to be dismissed for non prosecution. Therefore, right if any, to seek for partition has got extinguished with the dismissal of the suit in O.S.No.39/2009 and sought for dismissal of the suit. 8. Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and decreed the suit of the plaintiffs inter alia holding in paragraph Nos.17 and 18 as under: - 7 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 “17. The plaintiff has pleading and deposed that, certain properties are sold to third person. This fact is categorically denied by defendant in written statement. In the course of cross examination, the learned counsel for plaintiff confronted two sale deeds got marked at Ex.P.11 and 12. The defendant admitted his signature found on Ex. P.11 and 12. But he denied that, no properties are alienated to third person. Admittedly Ex.P.11 and 12 are registered document. The defendant admitted his signature found there on. Accordingly said signatures marked at Ex.P.11(a) and 12(a). The defendant has no right to denial of recitals of Ex.P.1 and 2. In cross examination DW.1 deposed that, one agreement of sale is cancelled due to plaintiffs’ are not ready to execute registered sale deed. By analyzing this evidence with recitals of Ex.P.11 and 12, it clearly shows that defendant and his sons and plaintiff have sold properties bearing No.59/1 measuring 20 guntas and another property land bearing Sy.No.59/1 measuring 20 guntas covered under Ex.P.11 and 12 in favour of Smt.O.Rangamma and Sri.Shekarappa. This evidence discloses that, joint family properties are sold by plaintiffs and defendant, his sons in favour of third persons. The defendant unnecessarily denied that, alienation of property covered under Ex.D.3 partition deed. If the defendant has not taken share on behalf of his brother Rangappa, he has no right to insist to take signature of the plaintiff on Ex.P.11 and 12. By considering all these materials it clearly shows that, defendant claiming false defence that, all properties covered under Ex.D.1 is required for repartition. 18. According to Hindu law, there are four circumstances for repartition in joint family properties. Firstly, playing fraud, undue influence, coercion secondly, there is no equal division in properties, thirdly, left of co-sharers - 8 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 and forth and finally any co-shares born after partition. In this case there is no such defence from the defendant. Simply he pleaded repartition of properties covered under Ex.D.3. Without set of and valid reason, there is no authority to re-partition in suit schedule properties by intervention from the court of law. Hence it is held that, suit schedule properties allotted in family partition dt: 30.10.1987 as per Ex.D.1 partition deed. Further it is held that, out of item No.1 in properties allotted to defendant/party No.9 in Ex.D.3 sold in favour of Smt.Gangamma another one Sri.Shekarappa. Hence it is held that, plaintiff has successfully proved that, suit schedule properties allotted in family partition and out of that, 1 acre land situated in Sy.No.59/1 sold to O.Gangamma and Shekrappa. At the same time, defendant has not proved that, required for re partition in properties covered under Ex.D.1 partition deed dt: 30.10.1987. Accordingly issue NO.1 and 2 answer in the affirmative, issue No.3 is answer in the negative.” 9. Being aggrieved by the same, legal representatives of the defendant filed an appeal before the First Appellate Court in RA No.98/2018. 10. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and considered the effect of dismissal of the earlier suit and dismissed the appeal inter alia holding in paragraph Nos.36 to 39 as under: - 9 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 “36. As rightly observed by the learned trial judge this suit is between branch of Rangappa and his brother Obappa. Therefore, the suit is not bad for non-joinder of necessary parties. Since the propositus Obanna S/o. Rangappa died leaving behind 2 sons and 2 daughters, the plaintiffs, their sisters being members of branch of last son of Obanna S/o. Rangappa are entitled to claim one share. The defendant is the first son of Obanna S/o. Rangappa is entitled to claim one share. The daughters of Obanna S/o. Rangappa by name Hanumantamma and Gangamma are entitled to claim one share each. Even though the plaintiffs not included the sisters of their father in the suit or in the appeal, said sisters of plaintiffs father can be impleaded in the Final Decree Proceedings. Accordingly, the plaintiffs, their sisters, defendant, sisters of defendant by name Hanumanatamm and Gangamma are entitled for 1/4th share each in the suit schedule properties. 37. The documents at Ex.D.1 and 2 i.e., certified copy of plaint in O.S.37/2009, order sheet in the said suit discloses that the father of plaintiffs by name Ragappa and his sons Doddappa and Harish (plaintiffs) have filed suit for partition and separate possession of 36 properties against 29 persons. In the said suit, the defendant Obalappa of this case is the defendant No.24. The said suit not only filed against present defendant but also filed against brothers and sisters of propositus Obanna S/o. Rangappa. The order sheet of said suit at Ex.D.2 discloses that said suit was dismissed for default and non-prosecution. The defendant has contended that since the plaintiffs have failed in their attempt to seek partition in the suit schedule properties in OS.37/2009, they have no right to file present suit, and it amounts to constructive resjudicata. - 10 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 38. Admittedly, the suit in O.S.37/2009 not disposed on merits. Instead it was dismissed for non-prosecution and default. The said suit was filed against all the family members of proposed sisters of grand-father of plaintiffs. The Regd., partition deed at Ex.D.3 clearly discloses that there was clear partition among brothers and sisters of grand-father of plaintiffs. Even in spite of said partition, the plaintiffs and their father have filed suit in OS.37/2009. Since said suit in O.S.37/2009 was dismissed for non-prosecution and default, and not decided on merits, the question of resjudicata would not arise at all. In the opinion of this court merely because the suit in OS.37/2009 was dismissed for non- prosecution and the present suit is filed seeking partition in the properties of grand-father of plaintiffs, the right of plaintiffs in seeking partition in the properties of their grand-father, in no way would affect. Therefore, the contention of defendant that since the plaintiffs have failed to seek partition in OS.37/2009, they have not right to claim partition in the suit schedule properties, cannot be accepted. 39. In view of my above discussions, the plaintiffs proved that they and defendant have constituted Hindu undivided family, and suit schedule properties are the ancestral and joint family properties, but so far no partition has taken place in the suit schedule properties. The plaintiffs No.1, his sisters Chandramma and Neelamma and his mother Jayamma together are entitled to claim 1/4th share each. The defendant is entitled to claim 1/4th share, and the sisters of father of plaintiffs and defendant by name Hanumantamma and Gangamma are also entitled to claim 1/4th share each in the suit schedule properties. At the cost of repetition, the plaintiffs not made their mother and sisters as parties to the suit. However, the sisters of - 11 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 plaintiffs made as parties in the present appeal, but the plaintiffs not made their mother as party to the appeal. Even the sisters of defendant by name Hanumantamma and Gangamma are also not made as parties to the suit. Since the father of plaintiffs is entitled to claim share in the share of his father and defendant is also entitled to claim share in the share of his father, and sisters of defendant are also entitled to claim share of their father. In all, the plaintiffs, their sisters and mother together are entitled to claim 1/4th share. The defendant is entitled to claim 1/4th share and Hanumatamma and Gangamma are entitled to claim 1/4th share.” 11. Being further aggrieved by the same, legal representatives of the original defendant have preferred the present second appeal on following grounds and raising following substantial questions of law: GROUNDS It is submitted that Order 1 Rule 1 postulates as to who are the parties to the proceedings and any right to relief arising out of the same act/transaction; (b) if such persons brought separate suits. As such, in the Trial Court the said Hanumanthamma and Gangamma are not the parties to the proceedings. Consequently, as they are not parties to the proceedings, the order - 12 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 passed by the first appellate court is totally illegal and contrary to law. It is submitted that, Order 1 Rule 3 postulates, who may be joined as defendants. As such, they are not impleaded in the Trial Court. It is submitted that unless and until a party to the proceedings either plaintiff or defendant and who file either plaint or written statement contending their right, title and interest in the said sult and also in the suit schedule property and the reasons thereof. Unless and until that ingredient has been incorporated and evidence has been lead, the finding of the First Appellate Court to implead the said Gangamma and Hanumanthamma is totally without jurisdiction and liable to be set aside. It is submitted that, nowhere in the judgement and decree of the Trial Court, there is a misjoinder and non-joinder of parties or the suit is filed in the name of the wrong persons. When that being the case, the first appellate court erred in passing the impugned judgment and decree without application of mind. It is submitted that, under Order 6 of CPC postulates the pleading, forms of pleading, particulars to be given and presumption of law. All these things has to be - 13 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 brought on record by the parties the suit. In the absence of the same, there is no pleading either in the form of a plaint or in the form of written statement. In both the cases, the first appellate court erred to see that these ingredients and lack of ingredients of Order 6, the first appellate court erred in passing the impugned judgment. It is submitted that, under Order 7 Rule 1 postulates the plaint, its particulars and the interest of the defendants and their liability and the relief sought for and the grounds for the relief sought for and production of the document to entertain a suit to claim relief from a competent court. As such, in the form of plaint of the said Hanumanthamma and Gangamma and their relationship with the plaintiffs and their right, title and interest over the schedule properties. In the absence of the same, the finding of the first appellate court is without application of mind, arbitrary and capricious. Likewise, under Order 8 of the CPC postulates written statement, production of document in support of the written statement, any counter claim by the defendant and...... which is also required to be pleaded and placed before the Trial court to show about the relationship of the plaintiff and the adversely affected parties and production of all those documents strictly - 14 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 requires for passing of the judgment on the basis of the written statement filed and the issues framed. In the absence of the same, the findings of the first appellate court is totally illegal and contrary to law as the right, title, interest and claim of said Hanumanthamma and Gangamma is not placed on record by the parties to the proceedings. Hence, the findings of the first appellate court is totally illegal and contrary to law. Even otherwise, there is a set of procedures postulated under the Code of Civil Procedure and also Evidence Act and the procedure contemplated under the Civil Rules of Practice to conduct a case in a Trial Court. In the absence of the same, the findings of the Trial Court is totally illegal and contrary to law. It is submitted that, even in the appeal, against the judgment and decree of the Trial Court in O.S. No.45/2017, the said Gangamma and Hanumanthamma have not preferred an appeal seeking relief from the competent courts showing their relationship with the plaintiff and the document relied upon with schedule properties. In the absence of impleading by the aggrieved person, the said Gangamma and Hanumanthamma are not the aggrieved persons in respect of the judgment and decree passed by the Trial Court. When that being the - 15 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 case, suo moto ordering by the first appellate court is totally illegal and contrary to law. It is submitted that the trial court has not taken into consideration the evidence of PW-1 who admitted his elder sister I.e, Neelamma and Chandramma are not arrayed as parties to the sui. As such the suit is bad for non-joinder of parties. The trial court has failed to consider that the earlier suit for partition in OS.No: 37/2009 wherein there are about 29 persons as defendants and properties involved are of 36 items was dismissed for non- prosecution. Further it is well-settles law that a suit for partition dismissed for non-prosecution does not bar for filing of a fresh suit by any of the member. SUBSTANTIAL QUESTIONS OF LAW: “a) Whether the first appellate court is justified in granting relief to the persons who are not the parties to the proceedings and entitled to claim 1/4th share each? b) Whether the first appellant court justified in modifying the relief of the plaintiffs ½ share to 1/4th share in the absence of any admissible material documents on record? - 16 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 c) Whether the first appellate court is competent to suo moto modify the judgment and decree of the Trial Court in the absence of the relief sought for by the alleged aggrieved party? As such, the first appellate court whether exceeded its jurisdiction in modifying the order? d) Whether the suit in OS. No:37/2009 dismissed for non-prosecution operates as Res-Judicata? e) Whether the partial partition and non-joinder of all necessary parties to the suit?” 12. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that the right to seek for partition by the plaintiffs has got extinguished with the dismissal of the earlier suit which has not been considered by both the Courts in a proper manner resulting in miscarriage of justice. 13. He would further contend that there was a prior partition which has been ignored by both the Courts and therefore, question of repartitioning of the properties after - 17 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 the death of Rangappa would not arise and the cause of action alleged by the plaintiffs are imaginary in nature as plaintiffs were never in joint cultivation along with the defendant and thus, sought for admitting the appeal for further consideration. 14. Per contra, learned counsel for the respondents supports the impugned judgments. 15. She would contend that under what circumstances earlier suit came to be dismissed is explained by the plaintiff which has been dealt in extenso by both the Courts. Therefore, the defence of the defendant that there cannot be repartition cannot be countenanced in law and sought for dismissal of the appeal. 16. Having heard the parties in detail, this Court perused the material on record meticulously. - 18 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 17. On such perusal of the material on record, in the case on hand, the relationship and the nature of the parties are not in dispute. 18. All that the defendant is contending that there is a prior partition. In regard to that, Ex.D.1 is relied upon by the defendant. 19. However, learned Trial Judge has taken into consideration that in Exs.P.11 and 12 which are the registered sale deeds, wherein the properties are sold to a third party wherein signature of the defendant is found. 20. Those signatures are admitted by the defendant in his cross-examination on confrontation and they were marked as Exs.P.11(a) and 12(a). 21. In the teeth of such an admission on the part of the defendant, the theory of prior partition loses its significance which has been rightly appreciated by both the Courts. - 19 - HC-KAR NC: 2025:KHC:37715 RSA No. 1244 of 2023 22. When once the nature of the properties and the relationship is admitted, decreeing of the suit by the Trial Court confirmed by the First Appellate Court needs no interference in the second appeal. 23. Accordingly, following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 53 CT: BHK