- 1 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1413 OF 2021 (PAR) BETWEEN: 1. SRI. SHIVANNA SON OF LATE JAVAREGOWDA AGED ABOUT 57 YEARS RESIDING AT KOTEHUNDI VILLAGE KASABA HOBLI, MYSURU TALUK 1(A). MALAMMA WIFE OF LATE SHIVANNA AGED ABOUT 58 YEARS RESIDING AT KOTEHUNDI VILLAGE KASABA HOBLI, MYSURU TALUK - 570 008 1(B). BASAVARAJU S SON OF LATE SHIVANNA AGED ABOUT 58 YEARS RESIDING AT KOTEHUNDI VILLAGE KASABA HOBLI, MYSURU TALUK - 570 008 1(C). KAVITHA S. DAUGHTER OF LATE SHIVANNA AGED ABOUT 58 YEARS RESIDING AT KOTEHUNDI VILLAGE KASABA HOBLI, MYSURU TALUK- 570 008 …APPELLANTS (BY SRI. K.S. HARISH, ADVOCATE) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 AND: 1. SMT. BASAMMA WIFE OF SIDDARAMEGOWDA, DAUGHTER OF LATE BASAVEGOWDA AGED ABOUT 46 YEARS RESIDING AT SINDUVALLI VILLAGE, JAYAPURA HOBLI, MYSURU. 2. SMT. SHIVAMMA WIFE OF RAJEGOWDA, DAUGHTER OF LATE BASAVEGOWDA AGED ABOUT 51 YEARS RESIDING AT D. SINDUVALLI VILLAGE, JAYAPURA HOBLI, MYSURU. 3. SRI. HUCHEGOWDA SON OF LATE BASAVEGOWDA, AGED ABOUT 61 YEARS RESIDING AT D. SINDUVALLI VILLAGE, JAYAPURA HOBLI, MYSURU. 4. SRI. SHIVANNA, SON OF LATE BASAVEGOWDA, AGED ABOUT 51 YEARS R/AT SALUHUNDI VILLAGE JAYAPURA HOBLI MYSURU. 5. SRI. GOWDEGOWDA, SON OF LATE BASAVEGOWDA, AGED ABOUT 49 YEARS - 3 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 R/AT SALUHUNDI VILLAGE JAYAPURA HOBLI, MYSURU. …RESPONDENTS (BY SRI. H.K. KENCHEGOWDA, ADVOCATE FOR R1 AND R2 R3 IS SERVED AND UNREPRESENTED VIDE ORDER DATED 22.08.2025, NOTICE TO R4 AND R5 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.10.2019 PASSED IN RA.No.162/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 10.04.2019 PASSED IN OS No.422/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.K.S.Harish, learned counsel for the appellants and Sri.H.K.Kenchegowda, learned counsel for respondent Nos.1 and 2. - 4 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 2. Defendant No.4 is the appellant in this second appeal, who is the purchaser of the share of defendant No.3 in O.S.No.422/2014 in respect of the following properties (hereinafter referred to as suit schedule properties): 1. The Land bearing Sv. No. 105/1, measuring 1 acre, 6 guntas, situated at Kenchalagudu village, Jayapura (H), Mysuru (T) bounded on: East by: Land of Pachhegowda. West by: Land of Mavalli Siddegowda, North by: Land of Polegowda, South by: Road. 2. The Land bearing Sy.No.65/2, measuring 30 guntas, situated at Dhanagalli village. Jayapura (Hr. Mysuru bounded on: Mysuru (T). 09/1291 East by: Land of Kinnalahna Maridoddegowda. West by: Land of Pachhegowda, North by: Government Oni after land of Doddamnha South by: Huchalegowdana Middamma. - 5 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 3. The Land bearing Sy.No.65/4 (old Sy.No.65), measuring 31 guntas, situated at Kenchalagudu village, Jayapura (H), Mysuru (T), bounded on: East by: Land of Shivanna, West by: Land of Pachhegowda, North by: Land of Kenchegowda, South by: Government Oni 4. Old House property bearing Janjer No.87, measuring East to West 22 ft and North to South 264 ft, situated at D.Salundi village, Jayapura (H), Mysuru (T) and bounded on: East by: Road, West by: House of Huchegowda, North by: house of Jogaiah, South by: Road 3. Defendant No.4 has challenged the validity of the judgment passed in RA No.162/2019 whereby shares were modified as granted in O.S.No.422/2014. 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 4.1. Genealogical tree of the joint family is culled out hereunder for ready reference: - 6 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 ಬಸೕಡ (ತಂ , ) ಂಪಮ (, ) ೕಡ ವಮ ವಣ , ೕಡ ಬಸಮ (60ವಷ) (57ವಷ) (50ವಷ) (48ವಷ) (40ವಷ) (ಮಗ) (ಮಗ) (ಮಗ) (ಮಗ) (ಮಗ) 4.2. Plaintiffs are the daughters of Basavegowda who had a wife by name of Kempamma. Huchhegowda, Shivanna and Gowdegowdi are the brothers of the plaintiffs. Appellant is the purchaser of the share of Gowdegowda in the suit properties. 4.3. Trial Court accepting the case of the plaintiffs, granted 1/20th share to each of the plaintiffs. 5. Being aggrieved by the same, Shivanna being defendant No.4 filed an appeal in RA No.162/2019 challenging the decree passed by the First Appellate Court whereas the plaintiffs filed an appeal challenging the grant of 6/20th share in RA No.252/2019. - 7 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 6. Defendant No.4 has challenged the validity of the judgment passed by the First Appellate Court in RA No.162/2019 and did not challenge the modification of the share granted in RA No.252/2019. 7. Strictly speaking, defendant No.4 should have filed two appeals against the common judgment of RA No.162/2019 and RA No.252/2019 be it what it may. 8. The contention of defendant No.4 is that there is no bar for defendant No.3 to sell the share in the suit properties in favour of defendant No.4 and therefore, First Appellate Court committed an error in not only dismissing the appeal of defendant No.4 confirming the decreeing of the suit on the grant of limitation but also committed an error in modifying the sharing pattern. 9. In that regard, learned counsel for the appellants invited the attention of this Court to the judgment of First Appellate Court in paragraph Nos.32 and 33 which is culled out hereunder for ready reference: - 8 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 “32. It is an admitted fact that the possession of the property is delivered in favour of the Defendant No.4. PW.1 in her cross examination has admitted that the Defendant No.4 is cultivating the said property after the purchase. The Defendant No.4 has paid the sale consideration of Rs.1,85,500/-. The said Sale Deed was executed on 16.4.2009. PW.1 has stated that she came to know about the sale of the property after 15 days of its sale. This suit is filed in the year 2014 beyond the period of 3 years. PW.1 has stated that herself and her brothers are in good terms. She has also admitted that the Defendant No.3 has no other source of income. 33. As The Defendant No.4 has produced Ex.D1 the Sale Deed dated 14.9.2012 jointly executed by Defendant No.2 and the Plaintiffs in favour of Smt.N.Gayathri in respect of Sy.No.65/3 measuring 30% guntas. It is stated that this property is also the joint family property. rightly contended by the Defendant No.4, the Defendant No.3 or Defendant No.1 are not the parties to this Sale Deed. Therefore, the Defendant No.4 has contended that the partition is proved. But as already stated the partition will not be valid without the joining of the Plaintiffs. But this document and the facts stated above would show that it is the Defendants who were in separate possession of the properties after partition between amongst them and the Plaintiffs had not claimed any right in the property.” 10. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contended that the substantial questions of law raised in the appeal needs consideration and therefore, appeal needs to be admitted for further consideration. - 9 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 11. Per contra, learned counsel for respondents opposes the appeal grounds. 12. In the light of the rival contentions of the parties, this Court perused the material on record meticulously. 13. On such perusal of the material on record, it is crystal clear that defendant No.3 who is the vendor of the present appellant, remained absent before the Trial Court. He having sold the portion of the property in favour of the appellant, obviously remained ex-parte. It is defendant No.4 who has filed written statement contesting the suit. 14. It is pertinent to note that there is no specific plea of limitation in the written statement filed by defendant No.4. 15. Nevertheless, since the share in the suit property has been sold by defendant No.3 in favour of defendant No.4, the sale in respect of the entire property by defendant No.3 in favour of defendant No.4 would not - 10 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 bind the plaintiffs as admittedly, plaintiffs are also having right over the suit properties as they are female coparceners of Basavegowda. 16. Further, whenever a suit for partition is laid where the possession is adversely to the interest of the other sharers, it is Article 65 of the Limitation Act that would come into play and not Article 58 of the Limitation Act. 17. View of this Court, in this regard, is supported by the judgment of this Court in the case of Mallavva and Another v. Kalsammanavara Kalamma (Since Dead) by Legal Heirs and Others reported in 2024 SCC Online SC 3846. 18. Therefore, the main ground that is sought to be admitted on the ground of limitation cannot be countenanced in law. 19. Insofar as sharing pattern is concerned, though defendant No.4 did not file a separate appeal challenging - 11 - HC-KAR NC: 2025:KHC:36460 RSA No. 1413 of 2021 the judgment of the First Appellate Court in RA No.252/2019, sharing pattern modified by the First Appellate Court is in consonance with the principles of law enunciated by the Hon’ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma reported in (2020) 9 SCC 1 and therefore, on that regard, appeal cannot be considered. 20. In view of the foregoing discussions, this Court is of the considered opinion that substantial questions of law raised in the appeal memorandum do not merit for further consideration. 21. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 40 CT-BHK