- 1 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.882 OF 2025 (PAR) BETWEEN: 1. SHARADAMMA, AGED ABOUT 57 YEARS, W/O LATE MAHALINGAPPA. 2. K.M. RENUKARADHYA, AGED ABOUT 41 YEARS, S/O LATE MAHALINGAPPA. BOTH ARE RESIDENTS OF KAMASAMUDRA VILLAGE, KANAKATTE HOBLI, ARSIKERE TALUK, HASSAN DISTRICT-573 126. …APPELLANTS (BY SRI. SHANKAR H.S., ADVOCATE) AND: 1. PALAKSHAMMA, AGED ABOUT 57 YEARS, W/O BASAVALINGAIAH, R/O NONAVINAKERE VILLAGE, TIPTUR TALUK, TUMAKURU DISTRICT-572224. 2. SMT. NANJUNDAMMA, AGED ABOUT 54 YEARS, W/O BYRAPPAJI, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 R/O NONAVINAKERE VILLAGE, TIPTUR TALUK, TUMAKURU DISTRICT-572224. 3. MANJULA, AGED ABOUT 52 YEARS, W/O JAYADEVAPPA, R/O ARALAGUPPE, TIPTUR TALUK TUMAKURU DISTRICT-572212. 4. NANDEESHA, AGED ABOUT 50 YEARS, S/O LATE MAHALLINGAPPA, R/O KAMASAMUDRA VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT-573126. 5. GANESH, AGED ABOUT 46 YEARS, S/O LATE MAHALLINGAPPA, BHARATH COLONY, R.M.C, LINK ROAD, 3RD CROSS, DAVANAGERE CITY-577003. …RESPONDENTS (BY SRI. K. GURUDHATTA, ADVOCATE FOR R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.10.2023 PASSED IN R.A.NO.31/2021 ON THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.04.2021 PASSED IN O.S.NO.33/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ARASIKERE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for respondent No.1. 2. This second appeal is filed against the concurrent finding. 3. The case of the plaintiffs before the Trial Court while seeking the relief of partition and separate possession, it is contended that the suit schedule properties are ancestral and joint family properties and hence, the plaintiffs are entitled for the relief of partition. The defendants appeared and filed the written statement contending that earlier there was a partition dated 20.03.2016, which took place during the lifetime of their father Mahalingappa and hence, the plaintiffs are not entitled for the relief of partition and separate possession. The Trial Court having considered both oral and documentary evidence available on record, particularly taken note of the evidence of P.W.1, wherein she reiterated the averments made in the plaint and denies the very partition as contended by the defendants. - 4 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 However, D.W.1 in the cross-examination admits that all the properties belongs to Mahalingappa and the same is the ancestral properties. He categorically admits that the suit schedule properties are allotted to the share of his father Mahalingappa. Though contended that there was a partition in the year 2016 i.e., on 20.03.2016 and they are all cultivating the properties separately and individually after the partition, but in order to substantiate the same, nothing is placed on record and the same is taken note of by the Trial Court in paragraph No.13 and comes to the conclusion that there was no any partition as contended by the defendants. 4. Being aggrieved by the said judgment and decree, an appeal is filed by the defendants in R.A.No.31/2021. The First Appellate Court having re-assessed the material available on record, framed the points for consideration whether the Trial Court has erred in granting the relief in coming to the conclusion that the properties belong to the plaintiffs and the defendants, whether it requires interference and whether the Trial Court committed an error in not considering the prior partition and answered the points for consideration in the - 5 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 negative. Having re-assessed both oral and documentary evidence available on record, the First Appellate Court in paragraph No.22 comes to the conclusion that there is no such partition as contended by the defendants. There is no dispute with regard to the nature of the properties are concerned, except the defence of the defendants that there was already a partition and in order to substantiate the same, nothing is placed on record and the same is considered by the First Appellate Court in paragraph Nos.22, 23 and 24. The First Appellate Court also considered the evidence of D.W.1 and D.W.2 and there is a categorical admission with regard to the properties are ancestral properties. In paragraph No.26, it is held that the Trial Court rightly decreed the suit of the plaintiffs holding that each of the plaintiffs are entitled for partition and separate possession of their 8/49th share in the suit schedule properties. 5. The First Appellate Court failed to apply its mind while considering the material on record with regard to the apportionment is concerned and this judgment was passed on 31.10.2023. The First Appellate Court failed to take note of - 6 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 that they are the legal heirs of the deceased Mahalingappa. When such being the case, ought to have granted equal share. Hence, the judgment and decree of the Trial Court and the First Appellate Court requires to be modified. 6. The learned counsel for the appellants would vehemently contend that the Trial Court and the First Appellate Court committed an error in holding that the suit schedule properties are undivided Hindu joint family properties and committed an error in not considering the earlier partition. The said contention cannot be accepted. Though such defence was taken by the appellants/defendants before the Trial Court, the same is not substantiated by placing any material on record. When such material is not placed before the Trial Court and not substantiated the same, I do not find any ground in the second appeal and there is no any perversity in the finding, since there is no dispute with regard to the nature of the properties is concerned as well as the relationship between the parties. Hence, no ground is made out to admit the second appeal and frame any substantial question of law. However, the Trial Court granted only 8/49th share and the same is affirmed by - 7 - HC-KAR NC: 2025:KHC:51964 RSA No. 882 of 2025 the First Appellate Court and the same ought to have been made as 1/7th share instead of 8/49th share. Hence, the same is modified as 1/7th share. Except this modification of apportionment, the judgment and decree of the Trial Court and the First Appellate Court is not disturbed. 7. With these observations, the second appeal is disposed of. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 63