- 1 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 2093 OF 2023 (PAR) BETWEEN: 1. MAHADEVASWAMY S/O LATE PUTTASUBBAPPA AGED ABOUT 53 YEARS 2. PUTTAMALLAPPA S/O LATS/O LATE PUTTASUBBAPPA AGED ABOUT 50 YEARS 3. SHIVAPPA S/O LATE PUTTASUBBAPPA AGED ABOUT 45 YEARS 4. PRABHUSWAMY S/O LATE PUTTASUBBAPPA AGED ABOUT 48 YEARS ALL THE APPELLANTS ARE RESIDING AT MARIYALA VILLAGE KASABA HOBLI, CHAMARAJANAGAR TALUK CHAMARAJANAGAR DISTRICT - 571 313. …APPELLANTS (BY SRI. R.R. SACHIN, ADVOCATE) AND: 1. RAJU S/O LATE PUTTSUBBAPPA, AGED ABOUT 56 YEARS RESIDING AT KELLAMBALLI VILLAGE, KASABA HOBLI, CHAMARAJANAGAR TALUK, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 CHAMARAJANAGAR - 571 313. 2. MAHADEVASWAMY S/O LATE MAHADEVAPPA AGED ABOUT 53 YEARS RESIDING AT KELLAMBALLI VILLAGE, KASABA HOBLI, CHAMARAJANAGAR TALUK, CHAMARAJANAGAR - 571 313. DEEPU PROPRIETOR AVT BRICKS INDUSTRIES RESIDING BEEDRAPURA VILLAGE, CHAMARAJANAGAR TALUK CHAMARAJANAGAR - 571 313. (DELETED AS PER THE ORDER DATED 27.06.2025) 3. THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD(KIADB) KRS ROAD, MYSORE. …RESPONDENTS (BY SRI. G.V. CHANDRASHEKAR, SR. ADVOCATE A/W SRI. R.C. NAGARAJ, ADVOCATE FOR C/R1; SRI. P.V. CHANDRASHEKAR, ADVOCATE FOR R3; R2 - MAHADEVASWAMY - SERVED) THIS RSA FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.08.2023 PASSED IN RA.NO.5055/2018 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHAMARAJANAGARA, (SITTING AT KOLELGALA), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.01.2018 PASSED IN OS.NO.87/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGARA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.R.R.Sachin, learned counsel for the appellants and Sri.G.V.Chandrashekar, learned Senior Counsel for Sri.R.C.Nagaraj for contesting respondent No.1 and Sri.P.V.Chandrashekar, learned counsel for respondent No.3. 2. Plaintiffs in O.S.No.87/2012 are the appellants in this second appeal. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1. A suit came to be filed by the plaintiffs in O.S.No.87/2012 against the elder brother – Raju and Prabhuswamy, who are the sons of Puttasubbappa; the purchaser of item No.3 of the suit property namely Mahadevaswamy and Deepu for partition and separate possession in respect of the immovable properties which are described in the plaint schedule which are culled out - 4 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 hereunder (hereinafter referred to as suit schedule properties): ITEM NO.1: The land bearing Sy. No. 401/1 measuring 1 acre 6 guntas. situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District, bounded on; East by: Land of Siddashetty, West by: Road, South by: Land of Vasanthkumar, North by: Road. ITEM NO.2: The land bearing Sy.No.401/2 measuring 2 acres 13 guntas. situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District, bounded on: East by: Land of Siddashetty. West by: Road, South by: Land of Vasanthkumar, North by: Road. ITEM NO.3: The land bearing Sy. No. 366/2 measuring 3 acres 12 guntas, situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District, bounded on; East by: Land of Prakash, West by: Land of Nagaraju, South by: Katte and land of Vasanthkumar, North by: Land of Gadi Doddaiah. - 5 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 ITEM NO.4: The land bearing Sy. No. 104/2 measuring 3 acres 4 guntas, situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District, bounded on; East by: Road, West by: Land of Kanakaraju, South by: Land of Mallappa, North by: Land of Parashivappa ITEM NO.5: The land bearing Sy. No 104/1 measuring 1 acre 16 guntas, situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District., ITEM NO.6: The land bearing Sy. No.97/1 measuring 3 acres 10 guntas. out of which 1 acre 31/2 guntas situated at Kellamballi Village, Kasaba Hobli, Chamarajanagar Taluk & District. 4. Suit on contest came to be decreed in part and suit against item No.3 came to be dismissed holding that it was the self acquired property of defendant No.1 who had sold the same in favour of defendant No.3 by way of registered sale deed. 5. Purchaser had also filed a suit in O.S.No.23/2016 seeking for an order of injunction against - 6 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 the very same plaintiffs and his vendors. Said suit filed for injunction came to be decreed holding that defendant No.1 had every right to convey the suit property in favour of defendant No.3. 6. Trial Court decreed the suit of the plaintiff in respect of all the properties and dismissed the suit for injunction filed by defendant No.3 in O.S.No.23/2016. 7. Against which, two appeals came to be filed before the First Appellate Court by defendant No.1 and purchaser who is defendant No.3 in RA No.5051/2018 and RA No.5055/2018. 8. Appeal filed by defendant No.3 – Mahadevaswamy in RA No.5051/2018 came to be allowed and appeal filed by Raju- defendant No.1 in RA No.5055/2018 was allowed on contest. 9. By virtue of the allowing of the appeal, injunction was granted in favour of defendant No.3 for item No.3 of the suit property which has been purchased - 7 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 by him from defendant No.1 and suit for partition decreed by the Trial Court was modified excluding the share in respect of item No.3 of the suit property. 10. Against the two appeals which were allowed, only one appeal is filed by the plaintiff in the present second appeal challenging the decree passed by the First Appellate Court only in respect of denying the share in item No.3 of the suit property. 11. It is pertinent to note that no second appeal is filed in respect of granting of an order of injunction in favour of defendant No.3 in RA No.5051/2018. 12. Therefore, for all practical purposes, injunction granted in favour of defendant No.3 who was the appellant in RA No.5051/2018 has become final. 13. The plaintiffs have raised following grounds in the second appeal and substantial questions of law: - 8 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 GROUNDS The impugned judgment and decree posed by the leamed reference courts below are opposed to low facts and evidence in the case, It is submitted that, the leamed reference courts was framed the issues on the basis of the pleading of the parties in O.S.No.87/2012 framed the 7 issues out of the 7 issues, issue No.2. 3. and 6 was framed against to the plaintiff and the court answer is negative and Issues No. 1, 4, 5 the Court below was answer to the said issues affirmative. It is submitted that in O.S.No.23/2016 the leamed trail court has framed 4 issues and was answer to the said issues in the negative. Such being the the learned appellate court in R.A.No.5051/2018 and R.A.No.5055/2018 is allowed case, is arbitrary same is illegal. The Judgment passed by the learned appellate court below without appreciation of the documentary evidence and oral evidence has passed the order. The documents produced by the plaintiffs/Appellants shows that the suit Item No.1 and 2 properties purchased by the mother of the and plaintiffs/Appellants defendant/Respondents 1 and 2 through a registered sale deed and - 9 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 thereafter she changed the Khataha in favour of defendant/Respondent No.1 during her life time. The suit Item No.4 and 5 properties originally belongs to father of the appellants and Respondents No.1 and 2 after death of the father of the plaintiffs/Appellants. The Khatha of the suit Item No.4 property hanged in the name of the mother of the appellants and respondents No.1 and 2 but the katha of the suit itm No.5 property is standing in the name of the father of the plaintiffs/Appellants and Respondent No.1 and 2 in respect of suit item No.6 property. the father of the appellants and respondents by name Puttasubbappa and his brothers have purchased the said suit properties in the year 1949. The plaintiffs/Appellants/Appellants are claiming the share in respect to 1 acre 3½ guntas out of 3.10 acres in Sy.No.97/1 i.e., item No.6 in respect of the suit schedule property to share of the their father. The learned appellate court has not observed the same and without appreciation of the findings given by the learned trail court has passed the order in O.S.No.87/2012 is partly decreed in respect of the suit Item No.1, 2 and 4 to 6 properties the plaintiffs/Appellants and defendant/ Respondents No.1 and 2 have 1/5th equal share each in the said properties by meets and bounds. - 10 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 And the suit is dismissed in respect of suit item No.3 of the property. It is submitted that, in the cross examination of the defendant/Respondent he admitted that his parents were having properties and during the life time of his parents partition has not taken place and at the time of filing of suit itself they have not partitioned the family properties and further admitted that he is the elder son his family but he denied that after the death of his parents they are residing in the joint family and the defendant/Respondent further submits that, he is residing in the Kellamballi village since 25 years and he has produced the documents. And he purchased admitted that the property mentioned in the Ex.D1 purchased in his name. He further states that he purchased the said property from the amount obtained by in his sister-in-law by name Rathnamma of Devanuru Village Village and he has taken Rs.1,00,000/- in the year 2006 at the time of purchase of the property and he admits that there are no documents in respect of obtaining money from his sister-in-law and he not mentioned in his written statement. And he admits that the kahta of Suit item no.3 is changed his wife. It's clearly goes to shows that the suit - 11 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 schedule property is purchased through joint family income the same has not appreciated by the learned appellate court. It is submitted that, the defendant/Respondent No.1 was admitted that after death of his parents his brother are looking after the joint family properties. He further admitted that he and his wife is not having any and self earning. It is clearly admitted that suit Item No.1 and 2 properties purchased by the mother of the plaintiffs/Appellants and defendant/ Respondents No.1 and 2 and the Khatha has been changed in the name of the defendant/Respondent No.1 in the year 2000-2001. It is also admitted the fact that suit item No. 4 to 6 properties belonging to father of the the plaintiffs/Appellants and defendant/Respondents No.1 and 2 and no partition has taken place between plaintiffs/Appellants and Defendant/Respondent No.1 and 2 during life time of their parents and thereafter also. The dispute is only in respect of the Suit Item No.3 property it shows that this property is purchased by the defendant/Respondent No.1 and the said property is his self acquired property but as per the plaintiffs/Appellants out of the joint family funds - 12 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 said property was purchased. The same is proved by the learned trail court with appreciation of the evidence and documents only. It is well settled that when at the date of acquisition of particular property, the joint family had sufficient nuclear for acquiring it the property in the name of any member of the joint family should be presumed to be acquired from out of the family funds and was to form part of the joint family property unless the contrary is shown. It is more in the case of Katha of a joint family possessing sufficient nucleus at the time of acquisition of the property in his name to prove that the acquired it independent of and without the aid of the joint family funds. There is catena of decisions of the Hon'ble apex court. The same is held in Rathamma and another Vs Hiriyamma and others reported in ILR 2014 KAR 2759. It is clearly shows that the Suit Item No.3 property purchased the in name of the defendant/Respondent No.1 but at the time of purchasing of the same he is having sufficient nucleus from the joint family property i.e., suit item 1 and 2 for acquiring it.” - 13 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 SUBSTANTIAL QUESTIONS OF LAW 1. Whether the findings of the First appellate court that the plaintiffs/Appellants have restrained the Suit Item No.3 in respect of Sy.No.366/2 in O.S.No.23/2016 from the peaceful possession of the and enjoyment of the suit scheduled item No.3? 2. Whether the first appellate court has erred in without considering the evidence adduced by the plaintiffs/Appellants in O.S.No.87/2012 to establish that the suit item No.3 is purchased through Self Acquired property of Defendant No. 1 without Joint Family income? 3. Whether the impugned judgment and decree are perverse and unreasonable liable to be set aside? 14. Learned counsel for the appellants reiterating the grounds urged in the appeal memorandum contended that suit item No.3 was also a joint family property and noticing the answer elicited in the cross-examination of defendant No.1 to the effect that there was no independent avocation for defendant No.1 to acquire the suit property in item No.3, Trial Court decreed the suit of - 14 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 the plaintiff in entirety, which was not properly appreciated by learned Judge in the First Appellate Court while allowing the appeal filed by defendant No.1 and defendant No.3 in RA No.5051/2018 and RA No.5055/2018 resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. 15. Per contra, learned Senior Counsel for contesting respondent No.1/defendant No.1 before the Trial Court supports the impugned judgments. 16. Sri.G.V.Chandrashekar, learned Senior counsel for the respondent submits that the property is acquired and KIADB would pay the compensation to whomsoever this Court determines the right in respect of item No.3 of the suit property, 17. Having heard the parties in detail, this Court perused the material on record meticulously. - 15 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 18. On such perusal of the material on record, it is crystal clear that in paragraph No.3 of the plaint, a vague allegation is made that suit item No.3 though purchased by defendant No.1 by virtue of a registered sale deed, same is purchased out of the income from the joint family. Ex.P.6 is the ROR (Records of Rights) extract in respect of item No.3 of the suit property. 19. Admittedly, Ex.P.6 – ROR extract stands in the name of defendant No.1. Sale deed is also produced to show that defendant No.1 acquired the property in his name. 20. It is for the plaintiff to prima facie establish that defendant No.1 had no independent income to purchase the suit item No.3 and sale consideration for purchase of suit item No.3 in the name of defendant No.1 and defendant No.1 has utilized the joint family nucleus. In other words, initial burden of proving sufficient joint family nucleus was on the plaintiff. - 16 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 21. In that regard in the examination-in-chief affidavit, in paragraph No.5 it has been contended as under: “5. Further I swear that the Defendant No.1 taking advantage the khata of the plaint schedule Item No.3 i.e., land bearing Sy.No.366/2 measuring 3 acres 12 guntas of Kellamballi village, Chamarajanagar Tq.. standing in his name without brought to the notice of us and got changed the khata of the same in the name of his wife by name Smt. Sarojamma and through her sold the plaint schedule Item No.3 in favour of Defendant No.3 on 23.8.2011 illegally and the act of the first defendant and his wife Sarojamma and the Defendant No.3 is illegal and oppose to law.” 22. Except reiterating the plaint averments, in the form of examination-in-chief, no other details are forthcoming as to what was the income of joint family and was there any excess amount that was available to the joint family to acquire item No.3 of the suit property in the name of defendant No.1 out of reverence. 23. In a matter of this nature, mere allegation that the properties purchased out of the joint family nucleus would not be sufficient proof. As such, the Doctrine of - 17 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 Joint Family Nucleus and Spill Over get attracted in a matter of this nature. 24. For establishing the Doctrine of Joint Family Nucleus and Spill Over absolutely there is no evidence on record on behalf of the plaintiff. 25. P.W.1 himself does not specifically say in the examination-in-chief which is filed by way of affidavit as to what was the income of the joint family and was there any excess so as to purchase item No.3 of the suit property by using the joint family funds. 26. Such initial burden is always on the plaintiff who also wants the Court to believe that a particular item of the suit property is also purchased by the joint family funds. 27. Unless the initial burden is discharged by the plaintiff, the question of shifting the onus on the defendants to establish that he had sufficient income to - 18 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 purchase the property in his individual name cannot be expected from the defendants. 28. Nevertheless, defendant No.1 has specifically stated that he had independent income and from that income, he has purchased the item No.3 of the suit property. 29. No doubt, in the cross-examination of D.W.1, it is elicited that there is no independent avocation by the defendants to purchase item No.3 of the suit property in his individual name. 30. Taking note of the material evidence placed on by both the parties, the First Appellate Court rightly reappreciated the material evidence and rightly reappreciated the same and modified the decree passed by the Trial Court while allowing the appeal filed by defendant No.1 in RA No.5051/2018 by denying the share in respect of item No.3 of the suit property. - 19 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 31. It is also pertinent to note that purchaser/defendant No.3 had filed a separate appeal in RA No.5055/2018, same is allowed by granting an injunction. 32. Learned counsel for the appellants however contended that after the order passed by the First Appellate Court, defendant No.3 has again sold the property in favour of defendant No.1 and therefore, non impleading defendant No.3 in the appeal is a curable defect. 33. No doubt, the sale made in favour of defendant No.1 by defendant No.3 is a subsequent development and therefore, on that score, the appeal cannot be dismissed. 34. Nevertheless, since the material evidence is rightly reappreciated by the learned Judge in the First Appellate Court, holding that suit item No.3 is the individual property of defendant No.1 which has been sold to respondent No.3 and repurchased by defendant No.1, - 20 - HC-KAR NC: 2025:KHC:32012 RSA No. 2093 of 2023 this Court is of the considered opinion that the substantial questions of law raised in the appeal, do not merit for further consideration. 35. Accordingly, following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 80 CT: BHK