- 1 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 5012 OF 2013 (DEC) BETWEEN: BEERAPPA S/O. HANUMAPPA JOGERA, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: YALADAHALLI, TQ: HIREKURUR. NOW RESIDING AT RANEBENNUR-581106 …APPELLANT (BY SRI. LAXMAN T. MANTAGANI, ADVOCATE) AND: 1. RAMAPPA S/O. HANUMAPPA JOGERA, AGE: 44 YEARS, OCC: AGRICULTURE, 2. PUATTANAGOUDA S/O. HANUMAGOUDA GOUDAR, AGE: 74 YEARS, OCC: AGRICULTURE, 3. PRAKASHGOUDA S/O. PUTTANAGOUDA GOUDAR, AGE: 44 YEARS, OCC: AGRICULTURE, 4. BASAVARAJ S/O. PUTTANAGOUDA GOUDAR, AGE: 36 YEARS, OCC: AGRICULTURE, 5. SURESH S/O. PUTTANAGOUDA GOUDAR, AGE: 37 YEARS, OCC: AGRICULTURE, 6. SHIVANANDGOUDA PUTTANAGOUDA GOUDAR, AGE: 33 YEARS, OCC: AGRICULTURE, RESPONDENT NO. 1 TO 6 ARE R/O: YALADAHALLI VILLAGE, TQ: HIREKERUR, DIST: HAVERI-581106 MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench Date: 2025.09.18 10:54:38 +0530 - 2 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 7. SMT. HONNAVVA W/O. NEELAPPA KAREGOUDAR, AGE: 52 YEARS, OCC: HOUSEHOLD WORK, 8. SMT. KARIYAVVA HANUMAPPA KAREGOUDAR, AGE: 58 YEARS, OCC: AGRICULTURE, 9. SMT. SAVAKKA W/O. MARDEPPA GUDAGERA, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, RESPONDENT NO. 7 TO 9 ARE R/O: KARUR VILLAGE, TQ: RANEBENNUR, DIST: HAVERI-581106. …RESPONDENTS (BY SRI. N.R. KUPPELUR, ADVOCATE FOR R3 AND R5; NOTICE SERVED TO R1, R2, R4, R8 AND R9; R6- NOTICE DISPENSED WITH; R7- APPEAL IS DISMISSED) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF FAST TRACK JUDGE RANEBENNUR AT. RANEBENNUR, DATED 30.08.2012 IN R.A. NO.40/2010 CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE (SR.DN) HIREKERUR DATED 08.01.2010 IN O.S.NO.16/2006 AND ALLOW THE ABOVE REGULAR SECOND APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) 1. Heard learned counsel for the appellant and learned counsel for respondents on admission. 2. The appellant has preferred this appeal against the judgment and decree passed by the Principal Civil Judge (Sr. Dn.), Hirekerur, in O.S. No.16/2006 dated 08.01.2010, which was confirmed by the First Appellate Court, i.e., the Fast Track Judge, Ranebennur, in R.A. No.40/2010 dated 30.08.2012. 3. The parties are referred to as per their ranks before the trial Court. 4. Brief facts leading to filing of this case are that the plaintiffs filed a suit seeking a declaration that the sale deed executed by Hanumanthappa A/F Bhimappa Joger is illegal and not binding on their share, and for partition and separate possession of their share in the suit schedule properties, as well as for a permanent injunction restraining - 4 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 defendants Nos.2 to 6 from interfering with their peaceful possession and enjoyment of the suit schedule properties. 5. It is the case of the plaintiffs that the propositus of the plaintiffs and defendant No.1, namely Hanumanthappa @ Bhimappa Joger, died on 20.06.1967. The plaintiffs and defendants are the children of the said Hanumanthappa. Defendants Nos.2 to 5 allegedly created a sale deed in their favour with respect to the suit properties; hence, the same were included in the present suit. The suit schedule properties are the joint family properties of the plaintiffs and defendant No.1, who have their respective shares therein. Defendants Nos.2 to 6 have no right, title, or interest over the suit properties. The suit properties were originally acquired by the father of the plaintiffs from his adopted father. It is alleged that the said Hanumanthappa, who was addicted to bad vices, executed a sale deed in favour of Shediyappa Immadi illegally in 1967 during the minority of the plaintiffs. There was no family necessity to sell the suit properties, and therefore the said sale - 5 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 transaction is not binding on the plaintiffs’ share. In 1972, Shediyappa sold the suit properties to defendant No.2. Subsequently, defendant No.2 and his children (defendants Nos.3 to 6) partitioned the suit properties and created certain documents. Mutation entries (ME Nos.646, 716, 838 and 1058, etc.) relating to the suit properties are alleged to be illegal. Hence, the plaintiffs sought for decreeing the appeal. 6. In response to the summons issued in the case, the defendants appeared through counsel. Defendant No.1 did not file a written statement, while defendant No.4 filed a written statement, which was adopted by defendants Nos.2, 3, and 5 and contended that the suit properties were purchased by Shediyappa on 29.05.1972 for the defendants’ family. On the date of purchase, the said properties were in the possession of the defendants as joint family properties. Subsequently, there was a partition among defendants Nos.2 to 6, and the suit properties fell to the shares of defendants Nos.3 to 6, who have since been - 6 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 in possession of their respective shares. The plaintiffs have no right over the suit properties. There is no cause of action for the plaintiffs to maintain the suit. On these grounds, the defendants sought dismissal of the suit. 7. Based on the pleadings, the Trial Court framed nine issues. 8. To prove their case, the plaintiffs examined PW-1 and produced documents marked as Ex.P.1 to P.8. On the other hand, the defendants examined DW-1 but did not produce any documents. 9. After hearing the arguments of both sides, the Trial Court answered issues Nos.1, 3, 6, and 8 in the negative, and issues Nos.2, 4, 5, and 7 in the affirmative, and consequently, dismissed the plaintiffs’ suit. Aggrieved by the judgment and decree, the present appellant preferred R.A. No.40/2010 before the Fast Track Judge, Ranebennur. The appeal was dismissed on 30.08.2012. 10. Learned counsel for the appellant submits that both the Courts below failed to appreciate the evidence on - 7 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 record in accordance with law and facts. The sale deed executed by the father of the plaintiffs during their minority amounts to an illegal transaction and is not binding on the appellants and sought for framing of substantial questions of law. 11. I have carefully examined the materials placed before me. 12. In paragraphs 14 to 16, the Trial Court has observed as under: “14. The present plaintiffs are claiming that the suit property is the joint family properties of the plaintiff and deft.l and the same was belongs to his father and who acquired the same from his adoptive father. This fact has to be proved by the plaintiffs in this regard. In support of this contention the plaintiffs have not produced any documentary evidence to show that the suit property was acquired by their father from his adoptive father. Except producing the revenue documents, the plaintiffs have not produced any other documents. Admittedly the sale deed was executed by father of the plaintifis in favour of one shediyappa immadi in the year 1967. The said sale deed is not produced by the plaintiffs in the present suit. Even they have not included the said shediyappa Immadi in the present suit. The said shediyappa has sold the suit property to the deft.l in year 1972. Even the said sale deed is not also produced by the plants in the present suit. Plaintiffs have not produced any documentary evidence to show that the suit property was the joint family property of plaintiffs and deft.1 and the same was joint family property of their father Hammantappa A/F Bheemappe Jogera. The father of the plaintiff was given in adoption on 18/6/45. In that regard there is a mention in Ex.p.2. In Exp.3 it is - 8 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 mentioned that Basappa Dodda Ningappa Jogera purchased the property for Rs.300/- and sold to Hanumantappa A/F Bheemappa S/o choudappa Jogera. As per Exp.4 the said property was sold by Hanumantappa A/F Bheemappa Jogera in favor of shediyappa Immadi on 26/4/67 and subsequently as per Exp.5 the said shediyappa has sold the suit property to Puttanagouda Hanumantagonda Houdra. As per ex.p.6 the suit property was partitioned between the deft 2 to 6. 15. Pw.1 during the cross examination has stated that as on the date of sale deed he was aged 12 years and as on the date of suit he was aged 48 years. If at all the sale deed was not legal as contended by the plaintiffs. then plaintiffs should be challenged the same within 3 years from the date of attaining the age of majority. The present suit is filed in the year 2006. As on that date the plaintiff No.1 was aged 48 years. Plaintiff No.2 was also major. Plaintiff No.3 was aged 52 years. Plaintiff No.4 was aged 49 years and deft.1 was aged about 38 years. From these contents, it is clear that the suit is not filed within 3 years from the date of attaining the age of majority of any of the plaintiffs. 16. The cause of action for the suit arose as prior to filing of the present suit the plaintiffs have asked the deft.1 to give share in the suit properties and the deft.1 refused for the same and hence the present suit. This contention cannot be accepted, because as on the date of suit the suit properties not standing in the name of deft.1. On what grounds they have asked the deft.1 to give the share in the suit property is not explained. It is not the case of plaintiffs that the deft.1 was in exclusive possession of the suit property. Even it is not the case of plaintiffs, if deft.1 was the karta of the family, deft.1 is the younger brother of plaintiff No.1. Hence the cause of action as mentioned in the plaint cannot be accepted. In the present suit the plaintiffs have also not stated as on when they came to know of the sale deed executed by their father in favour of shediyappa Immadi. They have only stated that the sale deed executed in favour of shediyappa Immadi is illegal and in turn sale deed executed by shediyappa in favour of deft.2 is also illegal. But in support of their contention the plaintiffs have not produced any - 9 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 documentary evidence. Hence the plaintiffs have failed to prove that the suit property is the joint family property of the plaintiffs and deft.1. But there is no dispute as far as genealogy as shown in suit schedule 'B' of the plaint. The plaintiffs have also failed to prove that they are entitled for partition and separate possession of their 1/3rd share in the suit schedule properties as contended by the plaintiffs. The defendants have already contended that they have purchased the suit properties from shediyappa Immadi and thereafter there was a partition between themselves and this fact is clear from the documents produced by the plaintiffs himself. It is admitted fact that deft.2 has purchased the suit property from shediyappa in the year 1972. The plaintiffs have admitted the execution of sale deed, they have contended that sale is illegal. But to prove the said sale deed is illegal, the plaintiffs have not produced any cogent evidence. The suit is bad for non-joinder of necessary parties, since the shediyappa the original purchaser of the suit property from the father of the defendant has not included in the present suit. Even though the defendants have contended in their W.S. that suit is bad for non-joinder of necessary parties. Even thereafter the plaintiff has not made any attempt to include the said shediyappa or legal heirs in the present suit. Hence in the absence of shedivappa Immadi, the suit of the plaintiffs is not maintamable. The defendants have contended that the court fee paid by the plaintiffs is not proper. The present suit filed by the plaintiffs for the relief of partition and separate possession. Hence the court fee paid by the plaintiff and the valuation made by the plaintiffs U/s.35[2] of KCF & SV Act is proper. Hence in view of above discussions, 1 answered the issues No.1 in the negative, issue no.2 in the affirmative, issues No.3 in the negative, issue No.4 & 5 in the affirmative, issue No.6 in the negative and issue No.7 in the affirmative.” 13. The Trial Court has properly appreciated the evidence on record in accordance with law and facts. Accordingly, the First Appellate Court has confirmed the judgment and decree passed by the Trial Court. I do not - 10 - HC-KAR NC: 2025:KHC-D:12019 RSA No. 5012 of 2013 find any grounds to formulate substantial questions of law. Hence, I proceed to pass the following: ORDER The appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE AC CT-CMU LIST NO.: 1 SL NO.: 33