- 1 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 200083 OF 2025 (PAR/POS) BETWEEN: 1. NIMBANNA S/O. ANNEPPA YALASANGE, AGE: 67 YEARS, OCC: PENSIONER/AGRICULTURE, R/O: BHAIRAMADAGI VILLAGE, TQ: AFZALPUR, DIST: KALABURAGI, NOW AT PLOT NO.2 MOHAN NAGAR, BEHIND SKG LIQUOR MART, OLD JEWARGI ROAD, KALABURAGI. 2. MALLIKARJUN S/O. ANNEPPA YALASANGE, AGE: 65 YEARS, OCC: PENSIONER/AGRICULTURE, R/O: MAHALAXMI LAYOUT, NEAR BHANGARGE, KALIAN MANTAP, UDNOOR ROAD, KALABURAGI – 585 102. 3. CHANDRAMMA W/O. SHIVASHARAN YELSANGE, AGE: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: STATION GHANGAPUR, TQ: AFZALPUR, DIST: KALABURAGI – 585 301. Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 4. SUDHA D/O. SHIVASHARAN YELSANGE, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: STATION GHANGAPUR, TQ: AFZALPUR, DIST: KALABURAGI – 585 301. 5. SUJATHA D/O. SHIVASHARAN YELSANGE, AGE: 33 YEARS, OCC: HOUSEHOLD WORK, R/O: STATION GHANGAPUR, TQ: AFZALPUR, DIST: KALABURAGI – 585 301. 6. AMBIKA D/O. SHIVASHARAN YELSANGE, AGE: 31 YEARS, OCC: HOUSEHOLD WORK, R/O: STATION GHANGAPUR, TQ: AFZALPUR, DIST: KALABURAGI – 585 301. 7. SUNITHA D/O. SHIVASHARAN YELSANGE, AGE: 27 YEARS, OCC: HOUSEHOLD WORK, R/O: STATION GHANGAPUR, TQ: AFZALPUR, DIST: KALABURAGI – 585 301. …APPELLANTS (BY SRI ANANTH S. JAHAGIRDHAR, ADVOCATE) AND: NAGAMMA W/O. SHANKAR (D/O. ANNEPPA), AGE: 53 YEARS, OCC: HOUSEHOLD, R/O: BHAIRAMADAGI, - 3 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 TQ: AFZALPUR, DIST: KALABURAGI, NOW AT TEACHERS COLONY, HUMNABAD, TQ: HUMNABAD, DIST: BIDAR – 585 330. …RESPONDENT (BY SRI PUNITH MARKAL, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED 09.12.2024 PASSED IN R.A.NO.27/2024 ON THE FILE OF DISTRICT JUDGE AND PRESIDING OFFICER, LABOUR COURT, KALABURAGI AT KALABURAGI, CONFIRMING THE JUDGMENT AND DECREE DATED 29.01.2024 PASSED IN O.S.NO.30/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., AFZALPUR, AND DISMISS THE SUIT OF THE PLAINTIFF WITH COSTS THROUGHOUT OR ANY OTHER RELIEF TO WHICH THE APPELLANTS ARE ENTITLED BE GRANTED, IN THE INTEREST OF JUSTICE. THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is arising out of a concurrent finding in a suit for partition and separate possession. The defendants - 4 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 are in appeal. The relationship of the parties is not in dispute. 2. One Anneppa was the propositus and he died in the year 1972. He had a wife by name Eramma. She died in the year 2020. The said couple had four sons and one daughter. The elder son Shivasharan is first defendant, the third son is second defendant, fourth son Shivasharan died in the year 1996 and his wife Chandramma is defendant No.3 and Nagamma, the daughter of propositus is the plaintiff. The remaining defendants are the children of late Shivasharan and Chandramma. 3. There is no dispute relating to item Nos.1 and 2 properties which are admittedly the ancestral properties. The dispute is only confined to item No.3 property which is Survey No.99/2, measuring 9 acres 15 guntas of land. 4. In the written statement, it is contended by the defendants that the property exclusively belonged to the husband of defendant No.3 i.e. late Shivasharan, one of the son of propositus Anneppa. To substantiate the said - 5 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 contention, a sale deed is produced. However, the sale deed stands in the name of defendant No.2. The trial Court did not accept the plea that, the suit property at item No.3 is a self acquired property and decreed the suit. 5. The defendants filed an appeal before the first appellate Court. The first appellate Court dismissed the appeal. An application is also filed under Order 41 Rule 27 of Code of Civil Procedure (Code), to produce additional evidence. The said application is also rejected. Hence, the defendants are before this Court in this regular second appeal. 6. Learned counsel appearing for the appellants would contend that, defendant No.1 the second son of propositus Anneppa was working in BSNL as Contract Laborer from 1974 to 1976 and he had sufficient income and from his separate income, the property was purchased and no issue is framed relating to the self acquisition and because of non-framing of issue, proper evidence was not led and same resulted in miscarriage of justice. It is also urged that to substantiate the contention that item No.3 is - 6 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 the self acquired property of defendant No.1, an application is filed under Order 41 Rule 27 of the Code, to produce the certificate issued by the BSNL, which established the fact that the defendant No.1 was working in BSNL from 1974 to 1976 as Contract Laborer. The Appellate Court is not justified in dismissing the application, despite the document sought to be produced along with the application was relevant for adjudication of the case on hand. It is also submitted that, the presumption in favour of the self acquisition is not rebutted and both Courts erred in granting a decree for partition. 7. Learned counsel appearing for the respondents on the other hand would contend that, both Courts are justified in granting a decree for partition in respect of all the three properties. It is urged that, item Nos.1 and 2 properties are admittedly ancestral properties. No independent income is proved to purchase the property in the name of defendant No.3’s husband as alleged in the written statement. The trial Court has noticed that the property stands in the name of defendant No.2 and there is no pleading relating to self - 7 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 acquisition by defendant No.2. He would further submits that the defendant No.2 joined BSNL in the year 1982, but the property was purchased in the year 1980, as such the contention that the property is a self acquired property is not tenable. 8. This Court has considered the contentions raised at the Bar and perused the records. 9. It is noticed from the written statement that, the defendants have taken a stand that, item Nos.1 and 2 properties are the joint family properties and item No.3 is a self acquired property of late Shivasharan, who died in the year 1980. The wife of Shivasharan is arrayed as defendant No.3. She has not led any evidence. However, the evidence is led by defendant No.2 as D.W.1. In his evidence, he has tried to raise a contention that the property is jointly owned by defendant No.1 and defendant No.2. However, the sale deed is in the name of defendant No.2. Defendant No.2 admittedly joined BSNL in the year 1982 and the property at item No.3 was purchased in the year 1980. Hence, defendant No.2 could not have contributed his independent income. - 8 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 The question is whether defendant No.1 has contributed his independent income. There is no plea in the written statement that the defendant No.1 has purchased the property. Defendant No.1 is not examined before the Court. Under these circumstances, the contention that the defendant No.1 should be permitted to lead evidence to substantiate his contention relating to self acquisition does not arise at all, as there is no plea in the written statement. 10. Though an attempt is made before the first appellate Court that on behalf of all the defendants to contend that, defendant No.1 was working in BSNL from 1974 to 1976 and has produced a certificate for having working in the BSNL, the appellate Court noticed that the said certificate does not reveal anything about the salary paid to defendant No.1. Moreover there is no plea in the written statement that defendant No.1 from his independent income has purchased the property. The defendant No.1 has not raised any plea that he had independent source of income to purchase the property. The Court cannot accept - 9 - NC: 2025:KHC-K:2078 RSA No. 200083 of 2025 the contention of appellants without any pleading that defendant No.1 had independent source of income. 11. Admittedly, two properties measuring 11 acres 15 guntas and 9 acres were held by the joint family. The Court can certainly presume that the income from the said properties was utilized to purchase item No.3 property. There is total inconsistency in the written statement and the evidence led by defendant No.1. 12. Under these circumstances, this Court does not find any reason to interfere with the Judgment and decree passed by the trial Court as well as the first appellate Court. 13. No substantial question arises for consideration in the present appeal. Accordingly, the appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE SVH List No.: 1 Sl No.: 43