- 1 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 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. 909 OF 2014 (PAR) BETWEEN: M H LAKSHMANAKUMAR S/O HANUMANTHAPPA, AGED ABOUT 37 YEARS, AGRICULTURIST, C/O M.G. ESHANNA R/AT: MACHAGONDANAHALLI VILLAGE, SAKHARAYAPATTANA HOBLI, KADUR TALUK, CHIKKAMAGALUR DISTRICT -577 563 …APPELLANT (BY SRI. M.V. MAHESHWARAPPA, ADVOCATE) AND: M S CHANDRAPPA S/O SHIVAPPA, AGED ABOUT 42 YEARS, AGRICULTURIST, R/AT: MACHAGONDANAHALLI VILLAGE, SAKHARAYAPATTANA HOBLI, KADUR TLAUK, CHIKKAMAGALUR DISTRICT-577 563. …RESPONDENT (BY SRI. MARUTHI S., ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.04.2014 PASSED IN R.A.NO.18/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, KADUR, ALLOWING THE APPEAL AND SETTING ASIDE Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 THE JUDGMENT AND DECREE DATED 20.03.2009 PASSED IN O.S.NO.48/2008 ON THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN.,) AND JMFC, KADUR. THIS APPEAL, COMING ON FOR ADMISSION, 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 21.04.2014 passed in R.A.No.18/2011 by the learned Senior Civil Judge and JMFC, Kadur. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant and the respondent was the plaintiff. 3. Brief facts leading to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for partition and separate possession, contending that the suit schedule properties are in joint possession and enjoyment - 3 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 of the plaintiff and the defendant. It is contended that the suit schedule properties are the joint family properties and no partition is effected between the plaintiff and the defendant. The plaintiff demanded a partition and separate possession. The defendant refused to effect partition. Hence, a cause of action arose for the plaintiff to file suit for partition and separate possession. Accordingly, prays to decree the suit. 4. The defendant appeared through the counsel but did not file a written statement. The trial Court has taken the written statement as not filed and thereafter posted the matter for recording the evidence of the plaintiff. 5. The plaintiff, to substantiate his case, examined himself as PW-1 and marked 7 documents as Ex.P.1 to Ex.P.7. - 4 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 6. The trial Court after recording the evidence and hearing of the plaintiff, framed the following points for consideration. 1. Whether the plaintiff is entitled to ½ share in the suit schedule properties? 2. What order? 7. The trial Court answered point No.1 partly in the affirmative and point No.2 as per the final order. The suit of the plaintiff was partly decreed. It was declared that the plaintiff was entitled to a ¼ share in item No.2 of the suit schedule property i.e., the property bearing Sy.No.21/2 of Mallappanahalli, Sakarayapatna Hobli, Kadur Taluk, by metes and bounds. Insofar as other properties are concerned, the suit of the plaintiff was dismissed. 8. In respect of the other items of the suit schedule properties, the plaintiff preferred an appeal in R.A.No.18/2011. The first appellate Court, after hearing - 5 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 the learned counsel for the parties, framed the following points for consideration. POINTS 1. Whether the appellant/plaintiff has proved that the suit schedule properties are ancestral and joint family properties and he has got half share in the entire suit schedule properties? 2. Whether the appellant/plaintiff proves that the judgment of the trial Court in O.S.No.48/2008 is illegal and without proper appreciation of evidence on record and is liable to be set-aside? 3. What Order? 9. The first appellate Court after reassessing the verbal and documentary evidence, answered points No.1 and 2 in the affirmative and point No.3 as per the final order. As per the order of the first appellate Court, the appeal of the plaintiff was allowed with costs. The judgment and decree passed in O.S.No.48/2008 dated 20.03.2009 was set aside. The suit of the plaintiff was decreed. It was declared that the plaintiff was entitled to get a ½ share in all the suit schedule properties and he is - 6 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 entitled for division and allotment of the said share by metes and bounds, further declared that the defendant has got a ½ share in all the suit schedule properties and he is entitled for division and allotment of said share by metes and bounds. The defendant, aggrieved by the judgment and decree passed by the first appellate Court, granting the share in item No.2 of the suit schedule properties to the plaintiff, filed this Regular Second Appeal. 10. Heard the arguments of the learned counsel for the defendant. 11. Learned counsel for the defendant submits that item No.2 of the suit schedule properties, is the self acquired property of the defendant. The plaintiff has no right to claim a ½ share in the said item No.2. The said aspect was not properly considered by the Court and committed an error in passing the impugned judgment. Hence, prays to allow the appeal. - 7 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 12. Perused the records and considered the submissions of the learned counsel for the defendant. 13. It is not in dispute that the plaintiff filed a suit against the defendant for partition and separate possession, claiming that the suit schedule properties are the joint family properties and no partition has been effected between the parties to the suit. The plaintiff requested the defendant to effect partition and separate possession, but the defendant refused to effect partition. 14. The defendant appeared through counsel but did not file a written statement. 15. The plaintiff, to substantiate his case, examined himself as PW-1 and he reiterated the plaint averments in the examination-in-chief and produced the documents from Ex.P.1 to Ex.P.7. The defendant has not denied the nature of the suit schedule properties by filing the written statement. The trial Court dismissed the suit in respect of - 8 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 other items of the suit schedule properties and partly decreed the suit insofar as item No.2 of the suit schedule properties is concerned. The defendant did not challenge the decree passed by the trial Court granting a share in item No.2 of the suit schedule properties. The plaintiff filed an appeal, challenging the dismissal of the suit, insofar as other items of the suit schedule properties are concerned. The defendant has not challenged the judgment and decree passed by the trial Court by preferring an appeal or cross objection before the first appellate Court, hence, the same cannot be challenged in the Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908. 16. As observed above, admittedly, the defendant was aggrieved with the granting of a decree insofar as item No.2 of the suit schedule properties, which ought to have been appealed against or objected to it, but the defendant did not challenge it by filing an appeal or by filing a cross objection. Hence, the second appeal filed by the defendant is not maintainable. The said view is being - 9 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 supported by the judgment of the Coordinate Bench of this Court in the case of Rama Bhat (since deceased by LRs. and others) and Smt. Honnamma Bhat Vs. Vijaya Kumar Bhat and others reported in ILR 2009 KAR 756. “21. Since the defendants against whom the Trial Court decreed the suit in part granting 1/15th share, was not challenged by them by filing an appeal or a memorandum of cross-objection in the First Appellate Court and the appeal before the first appellate Court was only against not granting of the decree for 4/15th share claimed by the plaintiffs and that the finding of the Trial Court with regard to the lack of legal necessity and family benefit was not underchallenge, the First Appellate Court has not committed any error in not considering and adjudicating the plea regarding legal necessity and family benefit, finding of the Trial Court with regard to which, had not been contested by the defendants and had allowed the finding to become final, based on which the Trial Court decreed the suit in part. If the first appellate Court had interfered with the partial decree granted by the Trial Curt, without there being a challenge to it, it would have reduced the plaintiffs to a situation worse than what they would have been, if they had not appealed before the first appellate Court. It is not an exceptional case where the decree of the trial is, so patently erroneous and cannot be countenanced at all even in the absence of an appeal or cross-objection being filed against it. Hence, the contention of Sri. K. KEshava Bhat that, second appeal can lie even against that part of the Trial Court decree which was not challenged before the first appellate Court, in exercise of the powers under Rule 33 of Order 41 CPC is against the settled rinciples of law and is not tenable. The substantial question of law (i) is answered holding - 10 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 that, in the said background, the lower Appellate Court has not committed any error, in not considering and adjudicating the plea regarding legal necessity and family benefit, since such a plea was not canvassed before it by the defendants and did not arise for its consideration.” 17. Considering the proposition laid down by the coordinate bench of this Court in the case of Rama Bhat (supra) the Second Appeal filed by the defendant is not maintainable. 18. Accordingly, I do not find any error in the impugned judgments or any substantial questions of law that arise for consideration in this appeal. 19. Accordingly, I proceed to pass the following: ORDER The Appeal is dismissed. The judgment and decree passed by the first appellate Court is hereby confirmed. No order as to the costs. - 11 - HC-KAR NC: 2025:KHC:25044 RSA No. 909 of 2014 In view of the dismissal of the appeal I.A.No.1/2014 does not survive for consideration and is accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK CT:KHV List No.: 1 Sl No.: 22