- 1 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 12TH DAY OF DECEMBER 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 100182 OF 2015 (PAR) BETWEEN: DR. BASAPPA S/O. SHIDDALINGAPPA TELI, AGE: 50 YEARS, OCC: MEDICAL PRACTIONER AND AGRICULTURE, R/O. ALAGAWADI, TQ: RAIBAG, DIST: BELAGAVI. …APPELLANT (BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE) AND: 1. SMT. KAMALAWWA W/O. HONNAPPA SATTIGERI, AGE: 38 YEARS, OCC: HOUSEMAKER, R/O: KESARAGOPPA, TQ: MUDHOL, DIST: BAGALKOT. 2. SMT. PARAWWA W/O. DUNDAPPA GOKAK, AGE: 40 YEARS, OCC: HOUSEMAKER, R/O: SULTHANAPUR, TQ: RAIBAG, DIST: BELAGAVI. 3. SMT. BOURAWWA W/O. SHIRISHAL BAGI, AGE: 42 YEARS, OCC: HOUSEMAKER, R/O: HALINGALI, TQ: JAMKHANDI, DIST: BAGALKOT. 4. SMT. MAHADEVI W/O. ALLAPPA GANIGER, AGE: 48 YEARS, OCC: HOUSEMAKER, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 R/O: GURLAPUR, TQ: GOKAK, DIST: BELAGAVI. 5. SHRI RAMESH S/O. SIDDALINGAPPA TELI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: ALAGAWADI, TQ: RAIBAG, DIST: BELAGAVI. 6. DR. SHRISHAIL S/O. SIDDALINGAPPA TELI, AGE: 46 YEARS, OCC: MEDICAL PRACTIONER AND AGRICULTURE, R/O: TELI ORTHOPAEDIC CENTER AND MATERNITY HOME, NEAR A.G. DESAI CIRCLE, (MURGOD PLOT) JAMAKHANDI, TQ: JAMAKHANDI, DIST: BAGALKOT. …RESPONDENTS (BY SRI. J.S. SHETTY, ADVOCATE FOR R1 TO R3; SRI. CHETAN S. NAIK, ADVOCATE FOR R6; NOTICE TO R5 IS SERVED; NOTICE TO R4 IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO CALL FOR RECORDS; SET ASIDE THE JUDGMENT & DECREE PASSED BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DATED:26.11.2013, PASSED IN O.S.NO.11/2010, BY ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 ORAL JUDGMENT (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This appeal is filed challenging the judgment and decree dated 26.11.2013 in a suit for partition and separate possession in O.S.No.11/2010 on the file of Senior Civil Judge, Raibag. The suit is decreed granting 5/9 share in favour of the plaintiffs. Bhimappa (propositus) (Died in 1989) =Gurawwa (wife) (died in 1992) Shidalingappa Mallappa Satteppa Shivappa Shantawwa (D.1) =Basawwa (wife) (P.5) Basappa Ramesh Shrishail Kamalawwa Parawwa Bourawwa Mahadevi (D.2) (D.3) (D.4) (P.1) (P.2) (P.3) (P.4) 2. One Bheemappa was the propositus. He died in 1989. His wife Gauravva died in 1992. The couple had 5 children. Four among them are sons and one is the - 4 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 daughter. The suit is filed by four daughters and wife of Siddalingappa, the eldest son of the propositus Bheemappa. 3. The defendants 2 and 4 raised a contention that there is already a partition in the family. Defendant No.2 contended that there was a partition in the year 1995 and as per the said partition, plaintiffs relinquished their share in the suit schedule properties and a document (oppige patra) is executed; the same is marked as Exhibit D2. 4. Defendant No.4 took a contention that there was a partition in the year 2008 and in the said partition dated 13.06.2008, plaintiffs have not taken any share and consented for partition among the rest of the family members. Thus, both defendant No.2 and defendant No.4 prayed for dismissal of the suit. 5. The Trial Court rejected the contention and held that the previous partitions pleaded by defendant No.2 and defendant No.4 are not established. The Court has concluded that Exhibit D2, the alleged document relating to - 5 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 partition/relinquishment, is not admissible in evidence and Court also took the view that the alleged partition of 2008 is not established. Defendant No.4 has accepted the decree. Only defendant No.2 has filed the appeal. 6. The following point arises for consideration. i. Whether the Trial Court is justified in holding that partition of 1995 is not proved? 7. Learned counsel appearing for defendant No.2/ appellant would urge that the Trial Court could not have disbelieved the partition of 1995 and the partition of 2008. It is his contention that both the partitions are very much established in terms of the documents marked as Exhibit D2 and Exhibit D79. Thus, it is urged that the suit ought to have been dismissed and the Trial Court should have accepted the plea of partition. 8. Ex.D2 is extracted below: - 6 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 M¦àUÉ ¥ÀvÀæ E°è £ÁªÀÅ 1, ²æêÀÄw §¸ÀªÀé PÉÆA. ¹zÀ°AUÀ¥Àà vÉð 2, §¸À¥Àà 3, ²æñÉÊ® 4 gÀªÉÄñÀ vÀAzÉ ¹zÀ°AUÀ¥Àà vÉð 5, ªÀĺÁzÉë PÉÆA. C®è¥Àà UÁtÂUÉÃgÀ 6, ¨ÉÆÃgÀªÀé PÉÆA. ²æñÉÊ® ¨ÁV 7, ¥ÁªÀðw PÉÆA. zÀÄAqÀ¥Àà UÉÆÃPÁPÀ 8, PÀªÀįÁ PÉÆA. ºÉÆ£ÀߥÀà ¸ÀwÛUÉÃj F ºÉÆwÛ£À ¢ªÀ¸À C¼ÀUÀªÁrAiÀÄ°è ¥ÀæªÀiÁt ¥ÀƪÀðPÀ §gÀPÉÆqÀĪÀ M¦àUÉ ¥ÀvÀæ K£ÉAzÀgÉ: £ÀªÀÄä vÀAzÉAiÀÄ ºÉ¸Àj£À°ègÀĪÀ £ÀªÀÄä ¦vÁæfðvÀ D¹ÛUÀ¼À°è FUÁUÀ¯É ¥Á®Ä ªÀiÁrPÉÆAqÀÄ £ÀªÀÄä-£ÀªÀÄä ¸ÀéAvÀ ¸Áé¢üãÀzÀ°èzÀÄÝ F PɼÀUÉ £ÀªÀÄÆ¢¹zÀ d«ÄãÀÄUÀ¼À£ÀÄß E°è PÁt¹zÀªÀgÀ ºÉ¸ÀjUÉ ªÀUÁð¬Ä¸ÀĪÀzÀPÉÌ £ÀªÀÄäzÉ®ègÀzÀÆ ¸ÀA¥ÀÆtð M¦àUÉ EgÀÄvÀÛzÉ. C.£ÀA. j.¸À.£ÀA. PÉëÃvÀæ J.UÀÄA. DPÁgÀ gÀÆ. ¥ÉÊ UÁæªÀÄ ¥Á®ÄzÁgÀgÀÄ 1. 18 4-00 10-66 C¼ÀUÀªÁr ¹zÀ°AUÀ¥Àà ©ÃªÀÄ¥Àà vÉð 2. 17/1+2qÀ 6-17 3-50 C¼ÀUÀªÁr §¸À¥Àà 3. 186/2A 1-31 0-83 C¼ÀUÀªÁr §¸À¥Àà 4. 186/4qÀ 0-34 0-39 C¼ÀUÀªÁr gÀªÉÄñÀ 5. 35/C+§/2C 2-05 1-43 ¤qÀUÀÄA¢ gÀªÉÄñÀ 6. 36/2C+§/2/C 0-35 1-31 ¤qÀUÀÄA¢ ²æñÉÊ® 7. 36/2C+§/2C+2§ 2-19 3-31 ¤qÀUÀÄA¢ §¸À¥Àà - 7 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 F ªÉÄïÉà «ªÀj¹zÀAvÉ DAiÀiÁ, DAiÀiÁ ¥Á°£À d«ÄãÀÄUÀ¼À PÀ.qÀ GvÁgÀzÀ°è ªÀ ¸ÀA§AzsÀ¥Àl UÁæªÀÄzÀ ¥ÀægÀzÀ°è §zÀ¯ÁªÀuÉ ªÀiÁqÀĪÀzÀPÉÌ £ÀªÀÄäzÀÄ AiÀiÁªÀÅzÉà vÀPÀgÁgÀÄ EgÀĪÀ¢®è. E£ÀÆß ªÀÄÄAzÉ M§âjUÉƧâgÀÄ PÀ¨ÁÓ ªÀ»ªÁl §zÀ¯ÁV F M¦àUÉ ¥ÀvÀæ §AzÀ£ÀPÁgÀPÀ«gÀÄvÀÛzÉ CAvÁ §gÀPÉÆqÀĪÀ PÀ§Æ° ¥ÀvÀæ ¸À» vÁ. 22-6-95 gÁAiÀĨÁUÀ. (¤qÀUÀÄA¢) Raibag I know the executants sd/- (B.S. Naik) Advocate Raibag Executants 9. Ex.D1 is also consent among family members to record the names of the sons in 3 properties based on earlier partition. On perusal of Exhibit D2, it is noticed that the plaintiffs have consented for transfer of property in favour of the defendants on the premise that partition is already taken place in the family. 10. On perusal of Ex.D2, it is noticed that 3 properties are partitioned among the sons. The wife of Siddalingappa, who is one of the plaintiffs, has signed the document. Said document is not questioned - 8 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 11. The Court has to consider whether the partition has taken place in 1995. It is to be noticed that the contention relating to partition of defendant No.4 has attained finality as defendant No.4 has not filed any appeal asserting the partition of 2008. It is only the defendant No.2 who has come before this Court asserting the partition of 1995. 12. The Trial Court has disbelieved Exhibit-D2 on the premise that it contents are in different handwriting, different font size and there are few alterations in the document. 13. The Court has perused the document in Exhibit- D2. The document contains two interpolation. However, those interpolations and corrections are not material. 14. It is also noticed that mutation is given effect to, vide Exhibit-D8 in relation to three properties, where it is stated that the family properties have been partitioned during the lifetime of the father. The mutation as per - 9 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 Exhibit-D8 is not questioned by the plaintiffs. There is no challenge to the said partition in respect of three properties covered under the aforementioned mutation. 15. Under these circumstances, the Court is of the view that a family partition which is in effect, of the year 1995 among three brothers is very much established. 16. The Trial Court has not noticed that partition in respect of 3 properties covered under Exhibit-D8. This being the position, the Trial Court could not have decreed the suit for partition in respect of these 3 properties covered under Ex.D8. 17. As far as the finding of the Trial Court relating to alleged 2008 partition, it has become final as there is no challenge to the said finding by the defendant No.4 who raised the defence of 2008 partition. 18. The Court has also considered the reasons assigned by the Trial Court to disbelieve the alleged - 10 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 partition of 2008 and that reason assigned by the Trial Court is well supported by the materials on record. 19. It is submitted by the learned counsel for the plaintiffs/ respondents that final decree is drawn pursuant to the preliminary decree during the pendency of this appeal. 20. Since this Court has modified the preliminary decree by setting aside the decree in respect of 3 properties covered under Exhibit D8, the final decree has to be drawn afresh to divide the properties pursuant to the decree passed by this Court which excludes 3 properties covered in Exhibit D8. 21. Learned counsel for the plaintiffs on instructions would submit that in the final decree proceeding, the plaintiffs have no objection to allot Item No. 2 in Part II to the share of the appellant/defendant No.2. Said submission is placed on record. - 11 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 22. Hence, the following: ORDER i) Appeal is allowed in part. ii) The judgment and decree dated 26.11.2013 in O.S. No.11/2010 passed by the Senior Civil Judge, Raibag are set aside in part. iii) The suit of the plaintiff is decreed in respect of all properties except the properties covered under Ex.D8 the mutation based on partition of 1995. iv) There shall be fresh final decree in respect of the suit properties except the properties covered under Ex.D8. v) In the said final decree, the property in Item No.2 of part II of the suit schedule allotted to the defendant No.2. vi) Parties to the proceedings are permitted to move the application for restoration of final decree proceeding and the final decree passed in - 12 - HC-KAR NC: 2025:KHC-D:18132 RFA No. 100182 of 2015 pursuant to the preliminary decree passed by the Trial Court is set aside to enable the Court to draw final decree in terms of the decree passed by this Court. Sd/- (ANANT RAMANATH HEGDE) JUDGE GAB,CHS,CLK CT-MCK LIST NO.: 1 SL NO.: 31